Questions of copyright and the public domain

"The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner."
                                                                                                           ^{(US Copyright Office quoted in The Legal Genealogist)}

Joseph Brant After Stuart

http://fineartamerica.com/featured/joseph-brant-after-stuart-lianne-schneider.html

Back from the Trillium Gallery opening and with the need to prepare my art work for shipment to St. Jude Childrens' Research hospital, I realized that I still had some questions in my own mind about authenticity, copyright and public domain. I have addressed the topic of public domain briefly in a previous post but it bears repeating and extending.  In a number of social media forums lately, I have run into heated discussions about copyright infringement (particularly on images or paintings), DMCA take down letters, and the recourse an artist might have if his/her work is stolen or used without permission. A few of these discussions involved someone's use of a trademark image - such as a Disney character - where the artist in question simply changed the medium in which the original artwork was published and then put their own name and copyright claim on the resulting product. Since I do a good deal of work from what are referred to as public domain images, I thought a full discussion was in order. I also want to clear up some confusion about public domain and U.S. copyright law. 

It's very important to note that copyright and trademark are not the same thing - the name of a company like "Coca-Cola," the figure of Mickey Mouse, etc. are not just originally copyrighted titles or art works but are registered trademarks which are renewable every 10 years indefinitely. Most well-known logos, figures like the Geico Gecko are trademarks that will be carefully renewed as long as the companies are in business. To use them in an art work without permission makes an artist liable to a a lawsuit for trademark infringement. Not long ago McDonald's successfully sued a small Mom and Pop restaurant for using a sign post too similar to the McDonald's arches. 

Actual copyright law is quite clear in both the U.S. and Canada. No copyright exists on any artwork or literary work published in the US. before 1923 or on work where the author/artist died more than 70 years ago. (In Canada, it's only 50 years). All copyrights that might have existed prior to that date have now expired. The original artwork or literary work has passed into the public domain - meaning anyone is free to use it in whole or in part without permission and to adapt it or change it in any way they choose and without identifying the original creator. 

The law is, however, much more complicated concerning works published since 1964 and the best I can determine is that copyrights applied for between 1964 and 1977 automatically renewed and the total protection is good for 95 years. For work copyrighted since 1978, the protection extends 75 years or until 2053 at the earliest. There are some exceptions, of course, that involve work purposely released into the public domain by the creator of the work or work produced by a government employee while in the course of his/her duties. For example, a National Park Service ranger who takes photos which are then posted on the park's website or in brochures cannot copyright those photographs. They are automatically in the public domain. However, it is still unethical to take that original photo without any adaptations or significant and original changes and claim it as one's own. The usual etiquette is to say that the image is in the public domain courtesy of the National Park Service and to name the photographer if he/she is known.

When working from public domain art or documents, an artist/writer creates something called a derivative work or a compilation to which SOME copyright protection can be applied. But the point is, according to section 103 of the US Copyright Act, "The copyright in a compilation or derivative work extends only to material contributed by the author of such work, as distinguished from the pre-existing material. The copyright in such work is independent of and does not affect or enlarge the scope, duration, ownership or subsistence of any copyright protection in the pre-existing material." In other words, you cannot slap your name on an older work or a public domain work with no changes or adaptations and copyright that original work. I can't take a Monet and duplicate it exactly like the original (create a reproduction) or take a faithful photographic copy of that art work and copyright it. 

Again the usual etiquette, even when making significant changes to the original in terms of style, medium, elements of the composition, etc. is to acknowledge the original artist in the title or description. Just because my use of something in the public domain is legal, it doesn't make it ethical to use it without change or acknowledgement. For example, if I use (as I have) a pen and ink or lithograph or even a painting from the 1800s, I could title the piece "Joseph Brant after Stuart" as I have done above, acknowledging that the portrait is an adaptation or recreation or reproduction of a Gilbert Stuart painting. Or in my artist's description or certificate of authenticity I would acknowledge Stuart as the original artist and give whatever information I might have about that original work. Since I made significant changes to the original in terms of background, medium, color, etc., the work is a derivative work and it's dishonest to say otherwise. But I am entitled to copyright the changes I made so the resultant artwork cannot be copied, duplicated or used in another derivative...another artist would have to go back to the original portrait and make his/her own changes. 

Even if the original artist is unknown, it's still unethical to represent a public domain work as entirely one's own. However, we all know that there is a big difference between what is legal and what is ethical and we cannot force people to act ethically in all circumstances. Unfortunately, in some cases, it appears that William Faulkner was right when he said, "An artist is completely amoral in that he will rob, beg, borrow, or steal from anybody and everybody to get the work done."  

There is a blog I follow "religiously" called "The Legal Genealogist" that discusses these and similar issues daily. I find it enormously helpful in crossing the minefields of rights, public domain, trademark, copyright and derivative work and avoiding the possibility of misrepresenting myself even when I'm within the law. From the February 24 blog post, the author says, "The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party...". Read the rest here:

http://www.legalgenealogist.com/blog/2014/02/25/copyright-and-the-republished-work/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+TheLegalGenealogist+%28The+Legal+Genealogist%29

Background stock from FrantisekSpurny