Purchase of an Object versus Purchase of Copyright or Right to Copy
August 18, 2014
Has anyone ever purchased your art or craft work and then started copying the original? I've seen this issue discussed online. Or people write to me when they find out about unauthorized copies of their work, especially when other people are profiting from their designs. The situation is frustrating and nearly impossible to stop - once it is out of control.
Normally, when a buyer purchases your work, that transaction does not automatically include purchase of the copyright -- unless it is written in a contract. I've written about a similar parallel with Copyright Ownership vs. Owning the DVD. The inexperienced or naive consumer does not realize that the purchase of the item did not purchase the copyright or right to copy.
Early in the transaction is where information and advocacy can make all the difference.
A common example is when a buyer makes a purchase and then proceeds to duplicate the design or recast the original. The original work could be a painting, print, pair of earrings or ring. More insidious are the commercial buyers who may buy your work with the premeditated intent to recast or copy for their own mass production and sales -- without your awareness nor permission.
The simpler the work or more commercial the design, the more likely you will run into this problem.
Recommendation: If you are concerned about this issue, perhaps a clause in the sales receipt should clarify that duplication of the work is prohibited. It could be written right next to your return policy.
Another common example is a commission. The customer asks the maker to create an original design. The expectation is a custom or one of a kind work. After delivery, the maker learns that the customer is now reproducing duplicates of the original, perhaps for their own use or (much worse) for multiple sales to other parties. In the digital age this is easier than ever.
Recommendation: I'd suggest that your commission contract specify this issue from the very beginning. Protect your work and your designs with clear language. If the customer wants to create multiples from your design then this needs to be clear from the inception of the commission.
The critical issue here is that instead of selling an item, the maker is now selling a design. Most likely the designer/maker will charge somewhat more than they would for one print, one ring or a pair of earrings.
What if you make work for a store to sell? Raise the issue up front before it is a problem. Clarify in advance within your contract that the store may not copy this signature design. Purchase of work is not purchase of the copyright.
A less obvious example, though rarely discussed, may arise when a collector buys your work. Purchase of the artwork or craft object does NOT purchase the rights to the photographic image. Technically, the collector should not be using or selling images of your artwork without your permission. However, both of you would normally benefit from publicity. Technically, the collector should ask you for permission whenever they plan to publish an image of your work. [Yikes, it can get really complicated here, as one could bring the photographer into this discussion. In this example we are not. Generally, it is understood that when a photographer photographs your work, you own the rights to use the images. Practically speaking it gets too complicated if the photographer will not let you use the images of your own artwork.]
MOVING ON....
At the museum level, the photographic image becomes a sensitive issue. At this elite level, museums want to maintain a level of respect and legality rarely understood by the average retail consumer.
More details in the next post about Non-Exclusive .
Harriete Estel Berman
If you would like to download the graphic used in this post, Click on this link for downloading the graphic. Then right click to "save image as."
The image is 360 x 1205 px at 72 dpi ( 171 kb).
