Page 93 - The Decorative Painter Spring 2015

teacher's corner
In the Teacher’s Corner
Let’s Talk Copyright.
What are the laws and what is infringement?
VICKI ALLEY tda TDP Committee Chair
The Graphic Artists Guild’s website, graphicartistsguild.org, has some very good information that is well worth reading, and you can always go to the US government’s website, www.copyright. gov, to read more about copyright laws.
The Graphic Artists Guild’s website also has a booklet for free download that is called Copyright Myths. It’s very easy to understand, and I suggest we should all take time to read it!
But what we mainly want to discuss here is teaching other artists’ works.
Some of us are not as creative as the rest of the artists in creating our own designs. We might be great teachers, but not designers.
It is imperative that you receive writ- ten permission from a designer in order to teach their design or project.
And each artist is different. Some might write back and say, “Sure! I am thrilled you want to teach my design!
Go ahead and make copies.” Some will say you can copy the design but not the instructions. You must type out your own instructions. And others will offer to sell you their packets at a teacher’s discount so you can teach their design.
And all are correct. It is up to the individual artist how she or he wants to handle this situation. I would definitely save the written permission on your computer and/or print it out and keep it with your paperwork.
You run into a different situation if you want to teach something out of magazine.
If you are a current member of SDP, you can teach anything out of a Decora- tive Painter magazine. It is stated right in the front of the magazine. But other magazines are different. Some hold the copyright of the design, not the artist, since they paid the artist for the submis- sion. It’s best to contact the magazine in writing to determine if you can teach a design from their publication.
In case of a publisher no longer in business, you should contact the designer as the copyright has probably either reverted back to them because of original time limits (usually six months post pub) or because it automatically reverted with the demise of the publishing company.
However, there are a few cases of books that would be unclear as total rights are retained by the publisher in perpetuity.
If you contact the designer in all cases (the designer should know the status of the copyright in all cases), you will be protecting yourself.
And your students will appreciate the fact that you took the extra steps necessary to do the right thing. This makes a good impression and shows you are serious about your vocation.
WHAT ABOUT INFRINGEMENT?
Copyright infringement occurs when your new work incorporates artistic ex- pression from the original, even if it takes only a small part of the original work, and even if you add a lot of your own original expression. For example, if the second illustrator rendered the same figure in the same pose, removing the same hat, even if his illustration has a different background. There is a famous quote from Judge Learned Hand that goes, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”
In Lee Wilson’s The Advertising Law Guide, in the chapter “Copyright Infringe- ment and How to Avoid It,” he writes:
“The circumstantial evidence test for copyright infringement by unauthorized copying has three parts:
1. Did the accused infringer have “access”
to the work that is said to have been
infringed so that copying was possible? 2. Is the defendant actually guilty of “copy-
ing” part of the plaintiff ’s protectable
expression from the plaintiff ’s work? 3. Is the accused work “substantially
similar” to the work the plaintiff says was copied?
Let me try and clarify that a bit: If you find a piece of art or photo and use it with- out the creator’s permission, then it is “yes” to all three and you are infringing.
If you take a photo and trace it to do an illustration, then it is “yes” to all three and you are infringing.
(The above information about infringe- ment was used with permission from the Graphic Artists Guild’s website.)
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