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Uitgeverij 27 maart 2014
Quirijn Meijnen (advocaat)
Copyright for art students, an introduction
Royal Academy of Art, the Hague (KABK)
19 December 2014, Quirijn Meijnen

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
Part I: copyright law
• Central question: What is copyright law?
• discussion
part II: Copyright law in practice
• “appropriation art” (toe eigenings kunst)
• Copyright and the style of an artist
• Copyright infringement (inbreuk)
• Myths about copyright
• Best practices copyright
• Central question: what’s in it for you.
• Discussion
INTRODUCTION

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Law works with concepts
• E.g: concept of ownership
• What does it mean to own a laptop?
• Answer: that you can use it they way you want, that you can sell it, that nobody
can use it without your permission, etc.
• There is a special concept in law for artists/designers/creative people; copyright
What is copyright law

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• Today is all about the concept of copyright
• To understand the concept of copyright will help you to realize the rights you have
and the rights you should be aware of when creating art.
• What is copyright? What does it mean?
• Copyright is a legal right, that grants the creator of an original work exclusive
rights to its use and distribution (openbaarmaken en verveelvoudigen),
usually for a limited time, with the intention of enabling the creator (e.g. the
photographer of a photograph or the author of a book) to receive compensation for
their intellectual effort. The author is also granted moral rights.
• How to obtain copyright protection?
• According to Dutch case law, only works that have their own, original character
and possess the personal stamp of the author can benefit from copyright
protection. This means that the work’s form must not be derived (afgeleid) from
any other work, and should be the result of the intellectual creation of human
labour. Thus, the author should have made creative choices, choices that are the
product of the human mind. There should be a creative performance of the author
that is reflected in its work. This excludes, at minimum, everything that has a
form that is so banal or trivial, that one cannot designate any creative work of any
kind behind such form: HR 30 May 2008, LJN BC2153 (Endstra v Nieuw
Amsterdam).
What is copyright law?

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Copyright protected?
Picasso, Portrait de femme (Dora Maar) (1942)

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Porsche 911 (964) Benjamin Dimson 1986

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Venus van Urbino, Titiaan 1538

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Copyright protected?
Vlinderstoel, series 7, Arne Jacobsen, 1953

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Copyright protected?
G-Star Elwood woman

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Copyright protected?
Frank Gehry, Louis Vuitton Foundation 2014

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• Copyright is a legal right, that grants the creator of an original work exclusive
rights to its use and distribution, usually for a limited time, with the intention of
enabling the creator (e.g. the photographer of a photograph or the author of a
book) to receive compensation for their intellectual effort.
• In case original > > automatically copyright protected
• No need to register/file, etc.! No costs! Originality is enough. So you can use ©
on your works
• Think about this. You make a painting, the painting is burned, you still have the
copyright on the painting!
• The problem is how to proof your copyright.
• Maybe you are lucky and a picture of the painting was taken before it was burned.
Copyright law
How do obtain
copyright?

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• Copyright does not protect ideas.
• For example, copyright may protect a particular song, novel, or painting about a
love affair in a museum in the Hague, but it cannot protect the underlying idea of
having a love affair in a museum in the Hague.
• Allowing authors to monopolize their ideas would thwart the underlying purpose
of copyright law, which is to encourage people to create new work.
• Works considered for copyright protection
o Musical works
o Literary works
o Artistic works
o two dimensional (drawings, paintings, etchings, lithographs, etc.)
o three dimensional (sculpture, architectural works), irrespective of
content (representational or abstract) and destination(pure art, for
advertisement, etc.)
o photographic works: irrespective of the subject matter (landscapes,
portraits, current events) and the purpose for which they are made
o motion pictures
o computer programs
Copyright law
How do I obtain this
right?

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• Moral rights (morele rechten/persoonlijkheidsrechten) are rights of creators
of copyrighted works. They include the right of attribution (right to your name
at your work), the right to have a work published anonymously or
pseudonymously, and the right to the integrity of the work.
• The preserving of the integrity of the work bars the work from alteration
(wijziging), distortion, or mutilation (verminking).
• Moral rights are distinct from any economic rights tied to copyrights. Even if an
artist has assigned (overgedragen) his or her copyright rights to a work to a third
party, he or she still maintains the moral rights to the work.
Copyright law
Moral rights

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• So you created an original work, than what?
• Exclusive rights to its use and distribution (openbaarmaken &
verveelvoudigen)
• An exclusive right is a de facto power/ right to perform an action or acquire a
benefit and to permit or deny others the right to perform the same action or to
acquire the same benefit.. Exclusive rights are a form of monopoly.
• So in case you have a copyright you can deny others to use and/or distribute your
work!
• Use = show in a gallery, perform a poem, etc.
• Distribute= to make copies of the work (copyright)
• Make any adaption of the work
• Translate the work
• Reproduce a two dimensional drawing in a three dimensional object.
• People need your permission to use and distribute your work
• Permission=License (more about licensing in part two)
Copyright law
Exclusive rights
What rights does the
owner of copyright
control?

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• A copyright owner can take legal action against any person who infringes
(inbreuk) the copyright in the work. The copyright owner is entitled to remedies
by ways of injunction (voorlopige voorziening, uit de handel halen product,),
damages (schadevergoeding) and accounts.
• All infringing copies of any work in which copyright subsist shall be deemed the
property of the owner of the copyright.
Copyright law
Exclusive rights
What rights does the
owner of copyright
control?

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
• Copyright is a legal right, that grants the creator of an original work exclusive
rights to its use and distribution, usually for a limited time, with the intention of
enabling the creator (e.g. the photographer of a photograph or the author of a
book) to receive compensation for their intellectual effort. The author is also
granted moral rights.
• One of the most obvious and important limitations to copyright is that it is not
perpetual and expires after a set amount of time. The length of a copyright on
work created in the Netherlands is the life of the author plus seventy years.
• When a copyright expires, the work falls into the public domain. In the public
domain, the work is considered to be a part of the cultural heritage of the
Netherlands and is not subject to any copyright limitations. This means that
anyone can exploit a work for both commercial and non-commercial gain.
• Parody is a limitation that protects the use of a copyrighted work in order to poke
fun at it.
• Use of quotes of copyright protected work (citaatrecht) for ‘criticism or review’
• Personal copying for private use
Limitations on owners’
rights (Netherlands)

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• “Fair use” is a concept in USA copyright law, does not exist in Europe
• There is no set rule that defines what is and is not fair use. Rather, fair use is
defined by a framework that is applied on a case-by-case basis. Whether or not a
use is “fair” can only be effectively determined by a court.
• Fair use strongly favors education, commentary, criticism and news-related
uses of a work and disfavor purely commercial uses.
• In general, when trying to build a fair use case, it’s a good idea to take only what
you absolutely need, make sure that your use is for some kind of public good and
that the use damages the copyright holder as little as possible.
Limitations on owners’
rights (USA)
“Fair use”

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Part I
• To summarize
- Original work
- Copyright is obtained automatically
- Exclusive right to use and distribute
- Right to take action against copyright infringement
- Moral rights, right to name & integrity of the work
- Limitation on copyright
o Expired
o Parody
o Quote
o “fair use” (USA only)
PART II Copyright law in practice
• Appropriation art
• Copyright and style of an artist
• Copyright infringement
• Copyright myths
• Best practices copyright

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Appropriation art:
Art that uses existing images.
Appropriation art in its most extreme
form is where an image is copied
completely and attributed to the
appropriaton artist.
Part II
Copyright law in practice. Appropriaton art
Example one tot one approtian art.
After Walker Evans: 2, 1981
Sherrie Levine (American, born 1947)

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Venus van Urbino Titiaan, 1538 Eduard Manet Olympia 1863
History of appropriation art

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History appropriation art
Fontaine, Duchamp, 1913

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History appropriation art
Au Bon Marché, Picasso,
1912 (collage)

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Richard Prince Untitled
(Cowboy) 1989
Ektacolor print, 50 x 70
inches
This work is number one
from an edition of two plus
one artist proof
Pre-auction estimate:
$900,000 - 1,200,000
Sold at Christie's Post-
War/Contemporary Art
auction #1573 for
$1,248,000 (including
buyer's premium) on
November 8th, 2005.

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Andre van Noord Marlene Dumas, Nuclear Family

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"Ooh Allright", Roy Lichtenstein, 1964Frame uit D.C. Comics # 88 uit Juni 1963

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Appropriaton art
Damien Hirst, Hymn, 1999

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Iris van Dongen Koos van Breukel

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Foto Katrijn van Giel Schilderij Luc Tuymans “A Belgian Politician” (Jean Marie Dedecker)

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Marlene Dumas, Nuclear Family
Patrick Cariou, Yes Rasta 2000
Richard Prince, “Canal Zone” 2008

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Richard Prince “canal zone” 2008

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Cariou v. Prince (24 april 2013) (Second Circuit)
Fair use is a case by case analysis;
Picture’s Cariou original and creative, but this factor “may be of limited usefulness where,” as here,
“the creative work of art is being used for a transformative purpose.”
“extent of permissible copying varies with the purpose and character of the use.”. In turn, the
secondary use “must be [permitted] to ‘conjure up’ at least enough of the original” to fulfill its
“transformative” purpose.
The Second Circuit determined that although Prince used key portions of some of Cariou’s
photographs, in 25 of Prince’s artworks, Prince had “transformed those photographs into something
new and different.”

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• Rules with regards “appropriation
art” are unclear.
• “chilling effect” on the appropriaton
art market.
• In the Netherlands “appropriation
art” is considered copyright
infringement
• Always ask for permission when
using someone else his work

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Copyright and the style of an
artist

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Copyright infringement?

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Copyright infringement?

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Copyright infringement?

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Copyright infringement?

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Copyright myths
• If I change someone else’s work I can claim it as my own
• Anything without a copyright notice is not protected
• If I only change seven things, than there is no copyright infringement
• If it’s on the internet I can use it
• It’s ok to use or publish other peoples work if I don’t make money out of
it

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Best practices copyright
• Be aware of what it means that your work is copyright protected
• Exclusive right to use and distribute + moral rights
• Be clear about the use other people can make of your work. Do they have
the right to make copies?, alter the work? Make an agreement!
• Ask permission for using work of other people
• Always make sure you are credited for your work (name under a
photograph, design etc.)
• The fact that people paid you for work, does not mean that they obtained
the copyright in the work. E.g. in case you are an architect and you
created a building for a company. The company is allowed to build the
building (one time) and use it. However, the company is not allowed to
sell t-shirts with an image of the building, build more than one building,
alter the building.
• As a principle never transfer your copyright. Only give clear licenses
• Keep records of the work you made (date your work).

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Best practices copyright
• Make an agreement!
• Be aware that you have a copyright
• Right to use your work in the Netherlands
• Right to use your work worldwide
• Right to use your work one time
• Right to use your work hundred times
• Specifiy how your work should be used (on a t-shirt, e.g. quality of the t-
shirt)
• Should your name always be mentioned?
• How do you get paid for your work?
• Per hour?
• Per t-shirt (royalty)
• Lump sum? (e.g. design of new logo for a multinational)
• What is normal? For you to decide!

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Best practices copyright
• In 1986, Steve Jobs recruited renowned graphic designer Paul Rand to
create a brand identity costing $100,000.