Image CC, pexels.com
Copyright has never been a simple topic. The automatic presumption is that it protects our ideas. It does not.
Rather, it is the tangible outcomes of those ideas that are protected – their “material form”. For example, an idea for a new product, computer game or TV serial is not protected by copyright, however, the written code for that game or a design brief are.
How these rules translate in today’s sharing culture is often confused. What we perceive as free content up-for-grabs online can indeed carry obligations under copyright law. For instance, the videos you post on Facebook or YouTube.
Similarly, street art, t-shirt and tattoo designs, and the emerging proliferation of 3D printing are good examples of new territory that is subject to copyright.
Read: How to Copyright your tattoo
The Australian Copyright Council (ACC) is an invaluable resource for creatives. They have published a suite of free papers to help navigate the murky quagmire of do’s and don’ts, helping us decipher between fact and fiction.
We have taken a look at what the experts say and summarized the key points on three contemporary areas of copyright that might affect you as an artist or creative:
1. Street art
Street art today has moved beyond the perceptions of illegal graffiti, entering both the gallery and the auction room as valuable items. It has even become a driver for tourism, as with the case of Miami’s Wynwood District and Melbourne’s Hosier Lane, which have their own Trip Advisor pages.
So what are the implications of taking a selfie in situ or tagging over another’s work, afterall it is anonymous and in the public domain, right?
The ACC states, ‘Street art can be protected by copyright even when it is created anonymously or under a pseudonym.’
Fiona Phillips, Executive Director ACC, said: 'Most simply it is deemed as an original artistic work when it is recorded in “material form”. That could be anything ranging from murals to graffiti, yarn bombing, sick-ups and stencils, and tags.'
You need to seek permission from the maker to: post an image of it on a website; reproduce it in a book or magazine; use it in a film location, or to photograph and sell as commercial product, such as postcards or t-shirts.
How much you reproduce something is always the question. Phillips says this is not necessarily about volume but a qualitative test.
Filming a location with street art in the background or taking a selfie against a tagged wall might be viewed as “incidental” or covered by a "fair dealing" exception. Phillips reminded that filming for news or review, parody and satire are also open to fair dealing exceptions.
There are number of recent cases of clear infringement. For example, in 2014 clothing retailer American Eagle Outfitters shot an advertising campaign against the work of Miami-based street artist AholSniffs Glue (David Anasagasti), attempting to use not only the image, but his “street cred”.
Apart from advertising, there have been other infringements. In 2011 the clothing company Urban Outfitters used an image by street artist Cali Killa for a t-shirt graphic and, also amazingly without permission, the Spanish synchronised swimming team’s suits featured a character with a backwards baseball hat painted in 2001 by German street artist Cantwo for the 2008 Olympic games in Beijing.
These are artists and makers who have the right to be credited and/or their work licenced.
The hard part with street art is how do you contact the maker? Not all street artists want to be known, given there might be other legal implications such as vandalism or trespass.
Phillips advises searching street art forums online and popular street art websites to assist in your search. Furthermore, a practical thing street artists can do is use a copyright notice with their work, and have a website with contact details.
The copyright notice is the symbol © followed by the name of the copyright owner and the year the work was created or first published.
It is not necessary to do this. We tend to forget that ‘Copyright is automatic’ - as soon as it is put it up on a wall or otherwise. But it will help.
If your street art has been used or copied then ACC advises that ‘you need to be able to prove that the other work uses important or distinctive parts of your work. You may also need to prove that the other person had access to your work, and copied it.'
They cited the example of Shepard Fairey’s iconic 2008 Hope poster of Barack Obama, which was found to have used Mannie Garcia’s photograph. Fariey and Garcia now share the rights in the poster.
What you need to be clear of, as a street artist, is that copyright law does not protect styles or techniques. However, ‘if another artist’s use of your distinctive style means that people confuse that artist with you, you may be able to take legal action under the law of “passing off”, consumer protection legislation or trade practices legislation’, explained ACC.
Simply changing the colours of another’s design or creating a stencil of their image, does not free you from the obligation of getting permission.
‘For example if you are making a stencil in Photoshop from a photograph you found on the internet, you are likely to need permission of the photographer to use their photograph as the basis for your stencil,’ said Phillips.
Your rights as a street artist are not restricted solely to reproduction. As the creator you also have the right of integrity that your work is not subject to “derogatory treatment”, which means materially altering it in any way.
For example, in 2010 some council workers in Melbourne accidentally painted over a stencil of a rat by British artist Banksy, created in Hosier Lane in 2003.
Banksy, who is regarded as the world's foremost street artist, did have the right under “derogatory treatment” to claim an infringement, however while many of the buildings in Hosier Land have permits allowing street art, the old Russell Street Theatre where Banksy’s rat appeared did not. Council had made an exception given his celebrity.
‘Worth noting is that the owner of property upon which street art is done is NOT the owner of copyright, unless agreed upon by the artist if/when the artwork was commissioned’, Phillips confirmed.
If you create street art on commission, it is always a good idea to set out the terms of the agreement in writing, for example who owns the rights of reproduction, what happens if the client wants to dispose of or paint over the work, and how the will the artist be credited.
To learn more read ACCs information sheet in full.
The general rule for street art created after 1 January 1955 is that copyright lasts for the life of the artist plus 70 years.
Image CC; pixabay.com
2. 3D Printing
While 3D printing has been around for many years within industrial and medical technology, it is quickly becoming part of mainstream life.
It is a curious one to consider in terms of copyright law and intellectual property rights, given that its very basis is the reproduction of another’s object.
Given that, ‘3D printing may involve other areas of law, such as designs, patents, trade mark, the law of passing off and competition and consumer laws,’ explained Phillips.
All you need is a PC with the right software and a 3D printer and you can produce anything from jewellery to sunglasses to an architectural model, right at your kitchen table.
She added: ‘While 3D printing is likely to pose challenges to design protection as 3D printers become increasingly cost-effective and accessible, we noted that a recent report on the Australian designs system by the Advisory Council on Intellectual Property (ACIP) did not recommend changing design law to accommodate 3D printing.’
For further information see ACIP’s website
3D printers work similar to regular printers, replacing the ink with micro layers of plastic, metal, and glass.
‘Designs for 3D printing are commonly made in one of two ways; they can be generated using 3D modelling software such as Computer Aided Design (CAD) or by scanning a physical object using a 3D scanner,’ Phillips continued.
Lucie Greene, insight editor at lifestyle trends forecasting network LS:N Global has been quoted: Product design has, effectively, been democratised.’ She continued: ‘We’ve seen a huge embracing of social platforms that allow people to co-create designs and products, open-source service needs and ‘hack’ existing products.’
ACC makes the points key to this new territory:
- Designs for one-off 3D prints may be protected by copyright as “artistic works”. Examples include engineering and design drawings, architectural plans and CAD designs
- Registered designs or designs that have been 3D printed more than 50 times have limited copyright protection and are instead likely to be protected under design law
- The owner of copyright in a 3D print is likely to be the party who owns copyright in the underlying 3D print designs. In the absence of an agreement stating otherwise, this is likely to be the person who created the 3D print designs.
So what happens when digital product design files are shared as routinely as music and video files, as they are today online?
Green said: ‘Indeed, brand owners may soon face the challenges associated with the widespread cloning of their products, as well as the proliferation of design blueprints themselves.’
One of the most common questions ACC receive is whether you can 3D print an item that you have purchased?
‘One-off 3D printed jewellery items and fashion accessories may be protected by copyright as “works of artistic craftsmanship”. However, if you are making multiple copies and the item has been “industrially applied” (applied to more than 50 articles), copyright protection may be limited and this material will instead be protected under design law.’
Phillips added: ‘Purchasing an item will typically involve a grant of property rights. However, owning property rights in an item is not the same as owning the intellectual property in that item … the general rule is that the creator of the 3D print design will own copyright in their creation.’
In general, the registered owner of a design has the exclusive right to make the design. As design registrations are made public, you can find the owner of a registered design by searching IP Australia’s designs database.
To learn more read ACC’s information sheet in full
Image CC; pixabay.com
3. T-shirts and totes
T-shirts and tote bags are the simplest of these three areas.
Basically, if you are not the copyright owner of the image or the text, then you will need permission to print it from the copyright holder. Making a few changes – like the colour or font – isn’t going to cut it.
Similarly, finding your source material circulating on the Internet is not a green light. Most images on the internet are subject to copyright and permission to reproduce - and produce material using them – is required.
Your best bet is to use material that has expired its copyright or material released under Creative Commons licence.
ACC warns that ‘you’ll need to ensure that the terms of the licence are suitable for your purposes. For example, a “Non Commercial” Creative Commons licence will not be suitable where you want to sell T-shirts.’
When it comes down to reproducing a quote or fragment of text, what is deemed a “substantial part” is often unclear. It has less to do with amount than the impact of that text as an essential and distinctive part of the original literary work.
ACC says: ‘A good rule of thumb is, if you want to use it, it’s likely to be a substantial part.’ Ascertain if the text is still within copyright and seek permission.
‘If you make a parody or satire of someone else’s material, there’s a possibility you could rely on the fair dealing exception for parody or satire,’ informs ACC, and ‘the use of existing brand names or slogans is unlikely to be a copyright issue, but may raise issues under trade mark or competition and consumer law.’
As a producer of an image, if you give permission for your art work to be used on a line of T-shirts you still maintain the copyright, regardless if it is mass produced on another surface. You are simply licencing its use.
ACC explained: ‘Any artistic work printed onto a T-shirt will be protected by copyright in its own right. If this is printed onto the surface of a T-shirt, you will not lose copyright protection in the two-dimensional image just because the T-shirt is mass-produced.
A useful website called Fashion Rules, which discusses intellectual property protection for the clothing and fashion industries.
The Australian Copyright Council does not take any legal enquiries by phone or email (you will be re-directed back to our online Legal Advice Service), however they do provide free legal advice to creatives and others by appointment and present seminars on current topics.
To download information sheets from the Australian Copyright Council.
If you are facing a case of infringement, you can speak to a pro-bono lawyer through Arts Law Australia to help you navigate your rights. They also have a fantastic resource hub of information.
Copyright Agency | Viscopy license the works of Australian visual artists, including craft workers, street artists, photographers and designers. Visit their website www.viscopy.org.au
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