DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
“Any artwork — main focus or not — for which you are not the artist (creator) cannot appear in an image at iStock unless a property release from the artist (not the current owner) is included. Artwork located on public properties are not exempt from this rule.”
By Andrew Hudson Published: June 7, 2011 Updated: May 17, 2017
A photo that you take has a copyright, which is owned by you. But if the subject of your photo is artwork, then that artwork may have a copyright, which would be owned by someone else. In that case, before you can upload the photo to a microstock agency or otherwise use it commercially, you need to get permission from the other copyright owner.
Obtaining permission from the other copyright owner is difficult. Who is the owner? Artwork rarely states the copyright owner; there is no central database of owners; and the ownership can change over time. And even if you do find the owner, they may demand a payment from you, or deny you permission. Then again, permission may not even be needed. Or you may choose to risk it and ignore the subject entirely.
Oh gosh, this is all getting rather complex. Let’s learn about artwork.
What Is Artwork?
In our application, we’ll consider artwork to be anything that is applicable to U.S. copyright law. Thus, artwork is something even minimally creative and original that is fixed in a medium.
Examples of protected artwork include:
- Paintings and works of fine art
- Statues and sculptures
- Photographs, including photographs of other artwork
- Maps, illustrations, graphic art, drawings
- Cartoon strips, cartoon characters, stuffed animals
- Posters and stills from movies, TV shows, computer games and theater shows
- Logos, designs, uniforms
- Architectural works including designs, plans, drawings, and the building itself
In all forms of creative artwork, the artist is automatically given, at the time of creation, a copyright. The artist, as the copyright holder, has a legal monopoly and is the only person who can make copies of the artwork. If you, as a photographer, want to take a photo of or including that artwork, you have to consider the underlying artwork’s copyright.
Depending upon the artwork and your use of the photo, there are four situations you can find yourself in. These are:
- No Copyright. Some works are not covered by copyright law. For example, facts, U.S. laws, ideas, and concepts. Unfortunately, not much artwork falls into this category.
- Expired Copyright. This is the best. The artwork was created so long ago that the copyright no longer applies and the work is in the public domain. You can use your photo any way you like. See public domain.
- Fair Use. The artwork has copyright but your use of the photo is excluded under the law as “fair use.” Unfortunately, this applies mainly to private use and editorial use, not commercial use. So this generally doesn’t help us sell photos online. See fair use.
- Valid Copyright and Commercial Use. Oh.
These are generally in the public domain and are free to photograph and distribute. However, a museum may prevent you from taking a photograph in the first place under the terms of private entry. And posters of old paintings may be covered by copyright if there is additional design work included.
In the U.S., you can use someone else’s photo of an old painting, since there’s no creativity added by the photographer (see Bridgeman Art Library v. Corel Corp.). However, U.K. copyright law may protect such a photo since “sweat of the brow” counts to copyright.
“The design of a useful article … shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates such pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently from, the utilitarian aspects of the article.”
— U.S. Copyright Law, Definition of Pictorial, Graphic or Sculptural work, 17 U.S.C. § 101.
Copyright law applies to art but not facts; to the decorative parts but not the unavoidable parts. Many works combine form and function — they look nice and they do something — so each “useful article” must first undergo a “separability test” to creative portion.
A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. …
Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object.
— U.S. Copyright Office
Only statues dating older than 75 years of age (with exception to private ownership) are acceptable as part of an illustration. Sculptures, figurines, installations, modern art any object in a museum, any object in an art gallery including public sculpture, some architecture, and advertisements are likely protected and should be accompanied by a property release for use in royalty-free stock illustrations.