Painting

As a painter, once a painting is painted you can control its reproduction, exhibition, distribution in any media, anywhere in the world.  Copyright for many visual artists is pretty straightforward, until you see your work either with someone elses name on it, or somewhere it doesn’t belong.

Associated Press, Shepard Fairey

The Hope image was created by an artist named Shephard Fairey.  He is being sued by the photographer upon whose work the painting appears to be based. 

From Picasso to Shep Fairey, visual art has always drawn on its predecessors. Do you think that you have you been ripped off, or are you worried that your work might draw too heavily on that of someone else? To answer  this question in a Canadian legal context you can apply  the substantial similarity test. This is exactly what it sounds like – are the two works substantially similar? Unfortunately, though this seems very commons sens, it is a very subjective test, and it’s unclear what would be allowed under the law without testing it in court.

It’s always important to acknowledge influences. At the same time, only the creator can speak to the origininality of a piece. It’s a complex question that has come up many times in today’s world, and there are many who use images that are clearly identifiable with other works, without consideration of the law. One person’s approriation is another persons homage. 

For more information on this interesting contemporary example, go here.

What happens when someone buys a painting?

When you sell an artwork, the work in its frame may belong to someone else but you still control whether it can be copied.  So when the client comes back after buying your work and tells you they liked it so much they took a digital image of it and gave it to someone else your copyirght may well have been violated.  At the same time, it can be difficult to control and more to the point very time consuming to address.  As with anything the answer will often depend on how much control you as the artists want over your work. 

Notwithstanding the sale the artist retains their moral rihts: that is the right to have their name associated with it and to protect its integrity.  For more on moral rights check our moral rights toolkit.

For more information on your rights as a visual artist, check the CARFAC website.

Example

Q. “I am a painter who has a portfolio on my website. My work showed up on a greeting card made by a Chinese company.”

A. Unfortunately, for many artists working in a visual medium, there are many companies that are in the business of taking images posted to digital portfolios and trying to sell them. It may be very difficult and expensive to pursue legal action against companies in other countries.

Q. I have been offered an opportunity to show my work in a group show at a commercial gallery but they want me to pay $60.

If you are a painter and you're offereed the opportunity to be represented by a gallery, we strongly reccommend that you contact  CARFAC or one of its provincial branches (CARFAC-BC). Do not sign a contract that you do not understand.

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