Art Market

How Artists Can Use Copyright Law to Safeguard Their Work

Benjamin Sutton
Dec 14, 2018 9:51PM

Visual artists in the United States own the copyright to any original works they create that are fixed in a tangible form, per the terms of the copyright law of the land. But that doesn’t stop companies, brands, people in other creative industries, and fellow visual artists from using their works or images of them without their permission. So what can visual artists do when they want to assert their copyright? An instructive example involves one of the year’s most popular songs.

Last week, Kendrick Lamar and SZA’s hit song from the Black Panther soundtrack, “All the Stars,” garnered several Grammy nominations, including record of the year and song of the year. Celebrations were short-lived, though, as the day the nominations were announced, lawyers for Lamar and the Universal Music Group began procedures to settle a copyright infringement lawsuit brought by the British-Liberian artist Lina Iris Viktor over the song’s eye-popping music video.

In her complaint, filed in February, Viktor claimed she was approached twice by the makers of the film and public relations representatives for Marvel about lending existing works or creating new ones, for usage in the film or promotion of it. But after she refused, deeming the licensing agreements she was offered too restrictive, the gilded, calligraphic imagery from her “Constellations” series was nonetheless incorporated into a roughly 19-second-long section of the “All the Stars” video. Viktor’s lawsuit and its likely out-of-court settlement are a textbook example of how to right a copy-wrong, especially in a situation where the defendant has little or no recourse to a fair-use argument—a defense that can be used to justify the use of another artist’s work.

“The first question to ask is: Is it a fair use; can you articulate a new message that’s being sent by this?” said Virginia Rutledge, an art historian and attorney specializing in contemporary art law. “If you can’t and it’s just not going to be a fair use, it’s going to be an unlicensed reproduction, and that’s uncool.”

Since the doctrine of fair use was incorporated into the U.S. Copyright Act in 1976, courts have vacillated in their interpretations of it where appropriation art is involved. Artists such as Jeff Koons and Richard Prince have tested the limits of what can be considered transformative use, and therefore fair. (The College Art Association has a very helpful Code of Best Practices for fair use.)

In Viktor’s case, because she specifically refused to grant permission for her work, only to have it used in a music video tied to a multi-million-dollar Hollywood film, copyright law is fairly clear: While fair use can be used to defend the unauthorized usage of copyrighted material for the purposes of “transformative” use, which constitutes commentary, criticism, or parody, the use of Viktor’s work as direct inspiration—along with the commercial nature of music videos and the film industry more generally—makes such an argument unlikely. Even though artists in the U.S. have an inherent copyright in any work of original expression they create in a fixed medium, they need a certificate of registration from the U.S. Copyright Office before they can assert that copyright in court. From there, it’s a question of getting in touch with the violating party.

“You hire a lawyer, or you call up yourself, or you have your agent call up, and say: ‘This isn’t a fair use, and therefore we object to it, so let’s make it right,’” said Rutledge. “Legally, your remedy would be very clear: You could demand a licensing fee and damages if you wanted to go that way, [or] you could demand an injunction—the prevention of further sale and destruction.”

More often than outright destruction of the infringing creation, the outcome of a copyright infringement lawsuit is an out-of-court settlement, as it appears will be the case with Viktor v. Lamar, SZA, et al. But for artists who don’t want to lawyer up (or can’t afford to), and don’t want to resort to shaming in the court of public opinion, there are copyright collection, monitoring, and licensing groups like VAGA and the Artists Rights Society (ARS), which are modeled on the recording industry’s American Society of Composers, Authors, and Publishers and free for artists to participate in.

For ARS, which represents some 80,000 visual artists and artists’ estates, the struggle to curb copyright infringement is constant. “You get one thing out of the marketplace and something else pops up,” said Theodore Feder, president of ARS.

If the Copyright Act is the most versatile legal tool in artists’ arsenal, the Visual Artists Rights Act (VARA) can come in handy in more extreme situations. It allows visual artists to assert their “moral rights” over their work and sue if their art is misattributed, or if the work’s integrity is compromised somehow. VARA is also intended to empower artists in more extreme situations involving the “intentional distortion, mutilation, or other modification” of an artwork, or its outright destruction. VARA was adopted in 1990, shortly after one especially high-profile mutilation of an artist’s work: the removal of Richard Serra’s Tilted Arc (1981) from Lower Manhattan.

While VARA’s terms are somewhat ambiguous, only extending protection to works “of recognized stature,” they were given more weight earlier this year when a federal judge ruled that the owner of the 5Pointz graffiti complex in Queens had violated the artists’ rights provided under the act by destroying their murals. The decision handed down by Judge Frederic Block (which the defendant is appealing) expanded the category of what counts as an artwork of “recognized stature” by not only including temporary graffiti murals, but also acknowledging that factors like “social media buzz” and coverage on blogs could bolster an artwork’s stature to the point that it was protected. As a result, while artists whose work is copied without their consent can confidently appeal to the Copyright Act, those whose work is changed, damaged, or destroyed without warning now have surer legal footing thanks to VARA.

Though the laws above can be helpful after something goes awry, by closely scrutinizing contracts and licensing agreements, artists can sometimes avoid going to court later. (An even simpler step that can be enough to make would-be infringers think twice is to prominently include a copyright symbol in the caption information for a work or in the piece itself, as a kind of signature, though this isn’t legally necessary.) This doesn’t always pan out, as illustrated by Viktor’s case; even after she and her gallerist, Mariane Ibrahim-Lenhardt, recognized the unfavorable terms of the offers they were getting from the Black Panther team, she ended up having to sue. Many artists feel pressure to accept unfair agreements for the use and display of their work on the pretext that the resulting exposure will make up for weak (or nonexistent) compensation, issues that have been a focus for the activist group Working Artists and the Greater Economy, as well as rights enforcers like ARS.

“Many artists, even some who are well-known, are not totally aware of their prerogatives and are likely to accede to unreasonable demands that come to them in contracts,” said Feder. “Oftentimes it’s understood that artists are not lawyers, the people that come at them can be corporations and lawyers representing corporations, and there may be use of verbiage that is not easily understood, and therefore an instinct in some cases to accede to such verbiage.”

Onerous contracts and egregious copyright violations can threaten artists’ markets, leaving them with few options but to file lawsuits like Viktor’s, which alleges that “the integrity of her work and her reputation as an artist has been damaged” by its “unauthorized association” with the Black Panther film and music video for “All the Stars.” While infringing uses are unlikely to ever completely stop, artists can be more proactive and assertive in squashing them by knowing their rights.

Benjamin Sutton