Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I want to take a digital photo of the famous opening shot for the Mary Tyler Moore Show where she tosses her hat up in the air and have that image spread onto a canvas. It would only be reproduced once and hung up at home for display. My problem is that I need to have one of the online companies reproduce this for me as I don't have the equipment to reproduce it onto canvas myself. They are asking if I have legal copyright permission to do this. Do I need it?! The short answer is that you probably don't need permission. Your use is likely excused under fair use principles (we won't go into the boring details). The trouble is that you can't explain that to the reproduction company because they want something in their files that says you have permission so that they can get you to pay for their lawsuit in case Mary (or ABC Family Television) finds out about your painting, decides it's improper and sues the reproduction company -- a situation that is about as unlikely as Mary turning the whole world on with her smile. 

Dear Rich: I found an abandoned painting in an old house I used to live in. It was painted in the 1800's.  I would like to make posters of it.  Is there a way I can become the copyright owner? The short answer is "no" (and we're a little bit saddened by your question.) You are free to make posters and you are also free to modify the work with your own additional artwork and make derivative versions and -- provided you've added some original authorship -- you can control the copyright on the derivatives. But you cannot claim copyright ownership over the original. 

Dear Rich: I am an artist and was recently approached by a woman who wants to use one of my images on t-shirts. She has proposed a simple arrangement doing 24 shirts at a time. As she sells out of one batch, she will make another 24. This is not a million dollar transaction but I have no idea how to respond to it. How do I know what the going rate is? The short answer is that artists get anywhere between 5 to 20% (or more) of the revenue generated by the shirt. It depends on the demand, the size of the print run and your bargaining power. Sometimes the royalty is paid only after costs are deducted; sometimes it is straight off the top. Some online T-shirt merchants even let the artist set the royalty.  

Beyond the Royalty

You should also ask yourself a few questions. Is the amount of money coming in worth your time and energy? What if you're not satisfied with the quality of the reproduction? Will the arrangement preclude you from other more lucrative deals? Do you have any reason to believe the t-shirt maker is not a trustworthy business person? If you have any doubts, it's probably a good idea to make the initial term of the agreement short, perhaps six months to a year (you can always renew). And it's best to keep it nonexclusive as well (you can always amend it later). And as they say in the music business, don't do a handshake deal, get some paper. Below is a sample short form t-shirt license taken from Getting Permission (written by the Dear Rich staff). Explanations for the agreement and a much more detailed long- form merchandise agreement can be found in the book, as well. And of course, make sure your artwork doesn't cross over into personality rights,trademarks, or otherwise illegal content.  (click to download:  T-Shirt License Agreement (Short Form))

Dear Rich: Copyright is one of my favorite subjects as I work with students who will soon be school teachers. Here is a question my students have been exploring. Considering all the problems that Shepard Fairey has because of his derivative poster based on a photo of Barack Obama made me wonder, did Andy Warhol's paintings and prints of Campbell's soup cans, Mickey Mouse, Marilyn Monroe get him into trouble with the owners of those original works? The short answer to your question is that Warhol's art has triggered some lawsuits. 

Dear Rich: I am a U.S. citizen temporarily living in Paris for a couple years. I want to make good use of my time by putting together a guidebook to all the museums in town. I'd like to include photos of both the front facade of the museums as well as of some select pieces on display within. Do I have to secure the permission of each museum to do this? [Note: Corrected 4/7/09] I'm so glad you asked. You may need permission to photograph the facades and appearance -- see our blog entry -- and the museum may control the right to reproduce photos of the items on display. Sometimes the museum controls the copyright under an agreement, and sometimes it has nothing to do with copyright; it's all about access -- that is, if you want to enter the museum, you must agree not to photo inside. That's often because museums earn substantial revenue from the sale of their "official photos"and they may want you to license those. Plus, flash photography can be damaging to many antique works of art (though that doesn't stop some of the less preservation-minded visitors). Even if the museum does not control access or copyright, you will still need permission to reproduce any artwork that is not in the public domain. We wish it wasn't so, but the Dear Rich staff feels a creeping sense of boredom with this answer -- perhaps because we addressed similar issues in this post.

Dear Rich: I have a question. I am an artist and have a fair amount of artwork on consignment with a gallery that is in trouble. Although we have worked without a specific consignment agreement until recently, I have submitted one for them to sign. Do I need a UCC statement as well? I deliver the art to a company in California that has galleries in several states. I'm so glad you asked. The short answer to your question is that filing a UCC statement can't hurt and may help. Filing a UCC (Uniform Commercial Code) statement (known as a UCC-1 Agreement) at the time of consignment in the county where the gallery is located will elevate you to the level of a secured creditor -- a status that may get you more money than if you were unsecured in the event of a gallery bankruptcy. (It may even result in the return of your artwork). Unfortunately, you will probably need an attorney's help to file it. The tricky issue in your case is the relationship between the company to which you deliver artwork and the galleries -- that is, whether you must file the UCC statement in one county or many counties. (Your attorney can advise.) Some states attempt to protect artists in your position with laws like California's Civil Code Section 1738 et. al. Another approach to protecting art is a consignment agreement. Depending on what it says, it may shield you from some losses (and may be required under some state laws). The Dear Rich staff has prepared a helpful article on consigning art that may answer your questions.

A note to our readers: Thanks so much for all the questions. The Dear Rich staff is currently experiencing delays of two to three weeks. Our most recent entry about paintings and posters triggered some followup questions, so we'd  like to get those out of the way.

Question #1: Dear Rich: You said that painters control the right to make posters from their  paintings. How hard is it for the painter to enforce? How often does it get enforced? I'm so glad you asked. The chances of enforcement usually depend on the ability of the copyright owner to attract and pay an attorney, which in turn depends on the lawyer's assessment of the odds for victory and the depth of the infringer's pockets.

Question #2: Dear Rich: It seems like a painting is the result of many contributions and elements. Someone creates the pigment, someone manufactures the paint, someone makes the brushes. Why do the rights end with the artist? Why should the artist's rights be any different than the rights of a house painter? I'm so glad you asked. Assuming you're asking the question, "Why does our government reward artists with copyright?" the answer is because the wealth of a nation is sometimes measured by its patents, copyrights, and trademarks (intellectual property). These products of the mind bring in (and lose) big bucks, and so government grants a limited monopoly to encourage their creation. By the way, those who create tools for artists can patent their ideas as well -- for example, the invention of the collapsible tube is credited with the birth of Impressionism.

Question #3: Dear Rich: I have a friend who is a patent attorney who said it isn't necessary to copyright my paintings or place a small letter "C" at the bottom of my painting. He claims that if I have signed the painting and someone copies it and then sells it on the open market that they are open for a lawsuit. If, however, he copies the painting and gives it to friends there is no problem. I think the copyright thing is just another lawyer scam, or a small "c" at the bottom of the painting is like a sign saying "beware of the dog." I'm so glad you asked (though the Dear Rich staff is unsure if there is a question here). Your patent attorney friend is correct that you do not need to register a copyright (though there are benefits for doing so), and since March 1989, you don't need to  include copyright notice (though it's a good idea to do so). As for copying the painting and giving it to your friends, we're not clear as to your friend's source. Although there are rules regarding "limited publications,"  there is no "friends" exemption for reproducing visual images. Finally, as much as we like your "beware of the dog" analogy, we think you are incorrect that copyright is a "lawyer scam" -- and we think Charles Dickens and Eminem would both agree with our conclusion.