Copyright and the Visual Arts

Work of Visual Art – Definitions:	A painting, drawing, or print	exists in a single copy, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the artist.
	A sculpture	multiple cast, carved, or fabricated sculptures of 200 or fewer, that are consecutively numbered by the author and bear the signature or other identifying mark of the author.
	A still photographic image	produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the author.
Visual Artists Right Act (VARA) of 1990	Artists and owners have the rights of attribution and integrity.	The author of a work of visual art shall have the right to claim ownership of the work;
		Prevent the use of his or her name as the author of any work of visual art which he or she did not create;
		Prevent the use of his or her name as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation;
		Prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
	Duration of rights	The rights of the artist as to works created on or after the effective date of the VARA exist until the end of the calendar year in which the artist dies.
		Those works created prior to 1990 and when the title has not passed from the artist prior to that date, the rights last for the duration of copyright.
		The rights to works created by joint artists expire at the end of the calendar year of the death of the last surviving artist.
	Transfer of rights	The rights granted to artists cannot be transferred to another party.
		The transfer of title to the actual work of visual art does not operate as a transfer or waiver of any of these rights unless there is an express, written waiver by the artist.
		The waiver of rights does not operate as a transfer of title to the underlying work nor to any rights of copyright in the underlying work unless the artist expressly agrees in writing.
Illustrations, Photographs	Five or less images by one artist or photographer	may be used in the classroom.
	10% or 15 images, whichever is less,	may be used from any single published work.
Collage	Artistic uses are not explicitly protected by fair use.	Commercial uses (art for sale) are explicitly not protected.
	Using the original image from a magazine for personal use or as a demonstration for educational purposes one time and for a limited audience is O.K.	The conditions of transformative, recognition, and  commentary and parody must be met.
	Is the artwork transformative?	The image or its context must be significantly altered.  For example, the image is used for texture as background (with other items on top) or only the line or shape so that the original artwork is no longer recognizable.
	Would the audience recognize items in the collage and think another artist produced the work?	If yes, then the collage items must not be used.
	Commentary and parody	The image must make a comment about or parody the original artwork.  For example, an image of Barbie may be used to parody Barbie.  If any doll’s image would do for a societal parody, then using a Barbie image is not fair use.
	Product viewed as a derivative work.	Only the owner of copyright in a work has the right to prepare or authorize another person to create a new version of the work.
	Create your own images or photographs for your collage.	You are then the copyright holder.
	Not all art is a work of visual art.	Posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures or other audiovisual works, books, magazines, newspapers, periodicals, databases, electronic information services, electronic publications, or similar publications; any merchandising items or advertising, promotional, descriptive, covering, or packaging material or container; any portion or part of any item described above; any work made for hire; or any work not subject to copyright protection under VARA.
November 2009