helenlt on August 6th, 2012
Recently, ‘Copycat’ artist ruffles feathers appeared in The Age. The article is about whether or not a painting by Czech artist, Marek Hospodarsky, infringes copyright in a photograph by an Australian artist, Petrina Hicks. (You can view both artworks for yourself on The Age website). As a self-confessed copyright nerd, I eagerly read any copyright related articles in the The Age, but this article really stood out because the Copyright Office had been recently contacted by a post-graduate student looking for advice on this issue.
The student wanted to know what the copyright issues would be if they created new silk screen prints from an old photographs that were still in copyright. They were creating the works as part of their thesis, the requirements of which included exhibiting the works. The student might also exhibit the works again later separate to course requirements. Either exhibition might have resulted in someone purchasing one of the works.
Art can be very derivative and this is often accepted practice by the art community. Obviously, this is not an issue where the original work is out of copyright but it becomes more problematic with works in copyright. Some artists accept that someone may reuse their work and build on it, others, such as Petrina Hicks for example, see such reproduction as an infringement of their rights. There is a common misconception that if you make a certain number of changes to work, you’re alright – but this a myth.
So what are the copyright issues? Copyright owners have the right to control whether or not someone can adapt their work – this includes creating a derivative work – but this right does not apply to artistic works. However, this doesn’t mean that anyone is free to go and create their own version of their favourite artwork. Copyright owners also have the right to control whether or not their work is reproduced and this right applies to artistic works. In many cases, creating a derivative artwork involves reproducing substantial portions of the original work, and generally permission is required from the copyright owner unless an exception applies.
Under the Copyright Act, material can be reproduced without permission from the copyright owner in certain circumstances and some of these exceptions may apply to creating derivative artworks. Our Masters student could possible rely on exceptions such as:
- Fair Dealing for research and study because they were doing reproducing the original artwork as part of their thesis. However, fair dealing for research and study would no longer apply if the work is exhibited commercially and made it available for sale.
- Fair Dealing for parody and satire – If they had been creating a derivative artwork that parodied or satirized the original work, it would have been allowed under Fair Dealing for parody and satire.
- Insubstantial portions – If they had only been using a insubstantial portion of the original artwork that would have been allow. But care should be taken with using insubstantial portions of artistic works as even a small part can be considered substantial if it is an important part of the work.
Additionally, the student could have considered the possibility of using another artwork that was out of copyright or where the copyright owner has already given their permission, e.g. Creative Commons material which allow derivative works, as this would have meant that there were no copyright issues to deal with.
Unfortunately for the student, we were unable to provide a definitive answer. There are lots of court cases relating to this issue, which suggests we are not the only ones who struggle with it. Often, the situation has to be dealt with on a case-by-case basis depending on the artworks and how they are being adapted. So what should you do if you find yourself in this situation?
- Remember that you can’t just make a few changes to the original artwork and be OK
- Consider how much of the original work you are reproducing and also how much of your new work will it be. The less you reproduce of the original work and the more original content is included in the new work, the more likely it is to be permitted under copyright because an exception might apply.
- Consider using material where copyright has expired or is licenced for reuse, but make sure that the licence allows for derivative works to be created
- Check for exceptions in the Copyright Act, such as Fair Dealing for Research and Study or Parody and Satire that might apply.
- Contact us as we can advise you. If you are using the work for University purposes, we may be able to seek permission to reproduce the original work on your behalf.