A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Question: My son went to a birthday party at a friend’s house. The kids made paintings of cakes at the party, and they made a book out of all the paintings as a present for the birthday girl. My son’s painting was so good, the girl’s mom made T-shirts with my son’s cake picture on it, and now she’s selling the T-shirts at craft fairs, along with T-shirts of her own art.
I don’t like it that she’s using my kid’s art for her T-shirt business, she won’t even give us a T-shirt. She says getting T-shirts printed was expensive and she wants us to buy one. She says the art belongs to her and her daughter, because the painting was a birthday present, so she can do what she wants with it.
Answer: Actually, your son owned the copyrights to the painting from the moment he made it. He very probably still owns the copyrights. Minors have copyrights in their art. *1 If he gave the painting as a birthday gift, he did not necessarily gift the copyrights along with it.
Copyrights are property. Paintings are property. They don’t necessarily travel together, the copyrights get separated from the painting when the painting is given away, or sold, or otherwise no longer owned by the artist, unless the artist specifically agrees to transfer the copyrights along with the painting.
According to the the Copyright Act of 1976, ownership of copyrights is separate and distinct from ownership of the object in which the work is embodied, and transfer of ownerhip of any material object (giving away the painting) does not convey copyrights. *2 She’s probably right, the actual painting belongs to her daughter if it was given as a gift, but the right to copy the design, make T-shirts, and sell them would likely belong to your son.
If you want to get into a legal battle with your son’s friend’s mom (I can’t imagine that would result in your son getting more birthday party invitations), you could consult a lawyer regarding what you can do to enforce your son’s copyrights.
Sources: *1 https://www.copyright.gov/help/faq/faq-who.html#minor; *2 17 U.S.C. § 202.
Question: I was asked to jury art for an art sale to benefit my church. I have never juried a show before, but people in the church know I’m an artist, and they thought I would be good at this. I am pretty sure that one of the art submissions is a painted copy of a recent movie poster. Can I let this into the show?
Answer: First, get a copy of the show rules, and familiarize yourself with the rules. Any art that you allow into the show needs to comply with the show rules. Some shows have rules that, for example, only allow “original art.” If the artist didn’t comply with the rules, then you should reject the art. If there are no restrictions in the rules, then we need to look at copyright and / or trademark law.
Usually movie posters are copyrighted, some of the elements in the poster might be trademarked. Copyrights and trademark rights can get complicated, so the movie studio isn’t always the copyright and/or trademark holder. For simplicity, let’s assume the movie studio holds all the copyrights and trademarks to this particular poster.
Movie studios can be aggressive about pursuing copyright and trademark infringement. That said, it is always possible that the artist asked and received permission from the movie studio. If permission to make the painting was granted, then copyright and trademark infringement would not be an issue. The best way to find out if permission was granted is to contact the artist and ask, and possibly insist that the artist provide you with a copy of the permission.
If no permission was received, that’s between the movie studio, and the potentially infringing artist. You are not in a position to enforce copyright or trademark violations. The only person who can enforce copyright or trademark violations is the movie studio.
There are a number of different ways you can approach this, including:
- You can notify the movie studio. The movie studio can then decide whether or not to enforce their trademark or copyrights. Use your judgement. Teenagers and fans like to draw movie art, and if this is teenager / fan art, calling the infringement to the attention of a movie studio’s legal department could be a harsh thing to do. If it’s a professional artist, who does this regularly and doesn’t think they’ll ever get caught, maybe that’s a different situation.
- You probably should discuss with the show organizers how they feel about allowing art that violates copyright into the show. If the church is going to allow the art into the show, the church might want to have their legal counsel research whether the church can be held liable if the art show includes art that appears to infringe copyrights or trademarks. Most of the more professional shows have some form of rules against selling material that violates copyright or trademark, in part because of potential liability issues for the organizers of shows or sales.
- You can also mention to the artist that movie posters are normally copyrighted and normally contain trademarked material as well, and suggest it might be a good idea for the artist to learn more about copyright and trademark infringement.
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