Copyright and the Artist

by Jonathan LA Phillips
Shay Kepple Phillips, Ltd.

The rights of artists are enshrined directly in the Constitution itself.

Artists trade in ideas. More appropriately, artists trade in the expression of ideas. Thus, just as car dealers must protect and monetize their property—the car—artists must protect and monetize their intellectual property—the rights related to their works of art. Since this country’s founding, artists have been able to make use of intellectual property law to build their businesses, whether they knew or not.

Intellectual property law is concerned with rights associated with creations of the mind. To most people, intellectual property means patents, trademarks and copyrights. Artists can make use of all forms of intellectual property, but the form most associated with the arts is the copyright.

The Foundation of Copyright Law
Unlike many of the rights we think about—those contained in the Bill of Rights and in later constitutional amendments—the founding fathers of this country placed intellectual property in the body of the Constitution itself. Article One, Section Eight reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In fact, Thomas Jefferson, in a letter to James Madison, suggested that additional intellectual property language be placed in the Bill of Rights as well. In short, the founding fathers made it a point to ensure that artists were able to protect their expressions of ideas. In securing protection, the founding fathers secured livelihoods for artists. The question is: How does an artist obtain that protection? Fortunately, it’s quite easy.

The moment an artist places paint upon the canvas, fires up clay, or saves an Illustrator file, he or she owns protectable rights to that work. Unlike the bad old days, artists do not have to race to the copyright office in order to claim their rights—although doing so may result in a more advantageous position if their rights were infringed. When artists own their copyright, they have the exclusive rights to: make copies or reproductions of the work, import or export the work, create a derivative work or adaptation, display the work publicly, and, importantly, sell or assign these rights to others. With some forms of art, it may be the sale of a single article that becomes the artist’s business, yet they may want to control the display of that art. With others, it is more about the monetization of these rights, especially adapting the work or creating copies.

Work Made For Hire
Many artists question what rights they have when they are being paid to create. Luckily, the Copyright Act provides guidance in this area with a concept called “work made for hire.” When a piece of art is a “work made for hire,” the person paying the artist is considered the creator (or author) of the work. Therefore, he or she owns the copyright. How do we determine whether or not a work is made for hire?

The first question requires us to determine if the artist is an employee or an independent contractor. If the artist is an employee, the piece of art is likely a work made for hire. Questions to be asked are:

• Does the non-artist control the work by providing equipment or specific times that the work has to be done?
• Does the non-artist require the artist to do other tasks while at work?
• Does the non-artist withhold taxes, provide benefits, and so on?

For example, if a person is a salaried arranger for a musical company, a staff software programmer for a software company, or other salaried person, he or she is more likely to be an employee. Unless there is an agreement otherwise, the employer will own all of his or her works of art. Hopefully, the employee is paid well for selling these rights.

However, if the nature of the relationship screams freelancer, the artist may be an independent contractor. If an artist is hired for a one-off commission job and the patron does not withhold taxes, he or she would likely fit into this category. As an independent contractor, only certain works—such as creating a test, creating an atlas or translating documents—would be considered works for hire.

As an independent contractor, the artist is selecting which rights to sell. Perhaps he or she created a statue for a company for the purpose of display in a particular place. The company cannot make copies of the statue if it did not buy that specific right; the artist still owns that right. Some cases even suggest the company cannot move the statue. Honestly, many artists may not care about these rights, but they have them to sell, and they can monetize the same piece of art several times over. Doing so could help increase the artist’s income and constitute good business.

Building a Business
The rights of artists are enshrined directly in the Constitution itself. The founding fathers recognized that it is not a painting that is sold, it is the right to display the painting, copy the painting or export the painting. In doing so, this country enabled the artist to run a business selling those rights. Consequently, the artist wishing to turn his or her art into a business would be wise to consider copyright protection and other forms of intellectual property protection in building that business. iBi

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