Stock up on popcorn
November 28, 2011
There are some issues that can get everybody worked up. When you touch upon the issue of copyright in illustration not from idle curiosity you need to consult an experienced specialist in order to get some reference to the civil code. A counsel Janina Jeger and a lawyer Anna Brilliantova are going to say something serious and adult about this important and disturbing question.
What should an illustrator know about his/her rights?
Janina Jeger: Illustration is an object of copyright, a result of intellectual activity and a work of art, no matter how it is made or used. When an artist creates an illustration, he/she gets some personal inalienable rights like the right of the author that one cannot write off, and the exclusive copyright which means that the work is one’s intellectual property that can be used at his/her discretion. It can be handed over to somebody or a licence can be issued.
Any illustration can be reprinted without the consent of the artist or the right possessor (and with no pay to any of them) when there is unrestricted access to it. It can be located in the street, in the museum or on a free web site. But the picture itself mustn’t be used for commercial purposes or be the main object of reproduction. And this is a matter of attitude. For instance, using an illustration as a background for expressing an opinion or depicting other things is not a crime. That is to say that the illustration itself is not the main message.
What is the difference between exclusive and non-exclusive rights?
Janina Jeger: exclusive right enables a person to have a free hand in using the work legally. The date of expiry of the exclusive rights is fixed by the law and as a rule it is about 70 years after the artist’s death. Then it becomes public property and can be used without any permission, licence or payment. However, the copyright, the author’s name and the integrity of the work are protected.
Non- exclusive right is the right of one person of a group of people to use the work of art (to show, reprint or remake it) within the terms of the licence. This term cannot be longer than the time of the exclusive rights, and when the licence bans the the transfer of the rights to anyone else we deal with the exclusive licence.
The real difference between an exclusive and non- exclusive right is very vague when all the rights are transferred to the licence owners. In this case there is the difference only when the agreement is terminated because of the breach of the contract.
If the art work is created in order to be included in some complex object that unites many protected results of intellectual activity (a movie, a show, a multimedia project) the licence should fix the time and the territory of using it, but the rest of the limiting terms are invalidated.
What does the transfer of rights mean for the artist?
Janina Jeger: It means that the artist loses the right to his/her work independently after he/she has transferred the rights to another person or company.
What is the difference between a labour contract and the author’s contract from the illustrator’s point of view?
Anna Brilliantova: According to the labour contract a physical person (illustrator) does his/her work and the employer has all the rights to use it. That is, the work that is done becomes the intellectual property of the company if there are no other terms specified in the paragraph of the contract. The labour relations are regulated by the Labour Code.
According to the contract of the author’s order a physical person does his/her work and the client gets the certain rights: exclusive rights or some rights of limited use regulated by the Civil Code.
Could an illustration be sold once again if it was created without an author’s contract? (They asked-I drew-They gave me money)?
Anna Brilliantova: In this situation the rights are not transferred as soon as there has been no contract signed. So formally the artist has a free hand in using the picture.
Could any illustrations that had been made on request of one client be sold to some other clients?
Janina Jeger: It depends on the terms of the contract. The client may use the illustrations on certain terms or he can be given the exclusive rights. In this case, the illustrator has no right to sell the pictures to other clients.
If the original was given to the client by the artist unreservedly, with no transfer of the exclusive rights, the client can display the picture or reprint in the catalogues of the exhibitions without the artist’s consent or any payments.
If the work is done in real form (oil, canvas) and the right is sold to the advertising company, may the artist sell the original?
Anna Brilliantova: Yes, he/she may.
If the artist had made the illustrations for the book and got his/her author’s fee, does he/she have the right to get royalty for the reprints?
Janina Jeger: The author’s right to get royalty for the reprints is regulated by the contract of rights transfer.
Does the client have a right to forbid to publish the illustration in the illustrator’s portfolio?
Anna Brilliantova: The illustrator has the right to be known as the author of the work. So the mention of his/her authorship can’t be banned. That is, the client and the illustrator may come to the agreement about not publishing the picture. The artist, however, can go back on his word with no actions taken on it if he/she doesn’t have business as an object (The illustrator doesn’t sell the work).
When the client hasn’t paid for the work, but the outdoor advertising is already underway, can the illustrator bring a suit against the dishonest client?
Anna Brilliantova: It depends on the contract again. The author can demand the compensation for the breach of the author’s rights or the penalty for the untimely pay.
Does the correspondence with the client have the legal effect?
Anna Brilliantova: No, it doesn’t. The internet correspondence could be taken into account, but it has no legal effect, that is, it won’t influence the decision.
Can a parody be considered as a violation of the copyright?
Janina Jeger: A parody itself can be created and published without the author of the origin’s consent or payment, but it’s always important to draw the line between a parody an illegal perversion or distortion of the work that tarnishes the author's reputation. In this case he can demand for defence.
Does the illustrator that makes collages from old photos or pictures break the law? Is it legal to use a famous or an unknown photo (picture) as a background for one’s own work? Is it possible to add a moustache to the photo and claim it as one’s own collage?
Janina Jeger: Depending on the the circumstances the use of someone else’s work can be considered as a remake, a copy, a misrepresentation or a use of the idea. Remaking or copying that is not in agreement with the copyright owner is illegal. Many illustrators make collages from the photos that they cut out from magazines. If the pieces of the collage are hardly recognizable, it is not a crime.
And the moustache added to one’s picture can be either a violation of the copyright or a work of art, created in agreement with the author.