Copyright, AI and Artistic Integrity

This blog, by Marc Alexander of the Alexander Art Academy, covers several critical issues that every artist should be aware of. Copyright, licensing, derivative artwork, plagiarism, and the growing role of artificial intelligence in our creative processes are but a few.

Copyright

Copyright protects original works of art by granting creators exclusive control over how their work is used, reproduced, adapted, or distributed. Paintings are automatically copyrighted upon creation, ensuring recognition and financial benefit for the artist. While registration isn’t required, it offers legal advantages, especially in court. Copyright lasts for the artist’s lifetime plus 70 years, typically remaining with the artist even after the artwork is sold.

In the realm of fine art, several categories of works and elements cannot be copyrighted. Here are some key examples:

• Ideas and Concepts: Copyright protects the expression of ideas, not the ideas themselves. This means that while a specific painting or artwork can be copyrighted, the underlying concept or idea behind it cannot.

• Facts and Data: Factual information, data, and historical events are not eligible for copyright protection. This includes common knowledge and public domain facts.

• Titles and Short Phrases: Titles of works, slogans, and short phrases are generally not copyrightable. They may be eligible for trademark protection instead.

• Public Domain Works: Works that have expired copyright or were never eligible for copyright (such as works created before 1923 in the U.S.) are in the public domain and can be freely used.

• Government Works: In the U.S., works created by federal government employees as part of their official duties are not eligible for copyright protection.

• Artistic Techniques and Methods: While a specific artwork may be protected, the techniques, methods, or processes used to create it are not copyrightable.

• Non-original Works: Works that lack originality or creativity, such as simple sketches or works made from standard templates, may not qualify for copyright protection.

• Elements of Nature: Natural phenomena, such as landscapes or the appearance of plants and animals, cannot be copyrighted, though specific artistic representations of them can be.
  

While an artist’s style may inspire others, others are legally free to adopt similar techniques or styles. As long as the actual works are not directly copied, they can create derivative works influenced by that style without infringing on copyright.

Licensing

Licensing is a formal agreement that grants permission to use a creator’s copyrighted work under specific terms, ensuring ethical and legal use of intellectual property. It ranges from open licences like Creative Commons to restrictive commercial agreements. Buyers own the physical artwork but not the copyright, which remains with the artist unless transferred by written agreement. Infringement can lead to legal action. For instance, in a Mandela tribute, my agent paid R10,000 for the original drawing and an additional R100,000 for the exclusive right to print and distribute the artwork for three years. Change the image by 10% or more

The notion that altering an image by “10% or more” exempts it from copyright law is a myth. Copyright law does not use a fixed percentage to determine originality or infringement. Instead, it assesses whether the new work is derivative or transformative.

Derivative Artwork

Derivative artwork refers to creations that are based on or incorporate pre-existing artworks or photographs, even if they involve significant artistic changes. While derivative works can be transformative and add new meaning, they still require the permission of the original copyright holder. Simply altering an image, piece of music, or text does not absolve one from obtaining permission. The line between original creation and derivative art can sometimes be blurry, but to stay on the right side of the law, it is essential to ensure that derivative work is significantly transformative and properly licensed.

Transformative Artwork

A transformative work adds new expression, meaning, or message to the original, thereby creating something fundamentally different. Courts are more likely to consider a work transformative if it adds significant new content or artistic vision rather than just making superficial alterations.

Plagiarism

Plagiarism is the unethical and illegal practice of using someone else’s work without giving proper credit. In the art world, this means copying another artist’s work and presenting it as your own. Unlike copyright infringement, which is the legal violation of intellectual property rights, plagiarism is primarily a moral issue. It undermines creativity, devalues the original artist’s effort, and weakens trust within the artistic community. Plagiarism should be avoided at all costs, as it damages not only the plagiarist’s reputation but also the integrity of the artistic field as a whole.

Fair Use

The legal doctrine of fair use in the US (or fair dealing in countries like the UK and South Africa) allows for limited use of copyrighted material without permission under specific conditions. Common categories include criticism, review, satire, educational purposes, research, and news reporting. However, fair use is not absolute, and courts evaluate each case individually based on factors such as the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market for the original work.

When considering fair use, educational and transformative uses are more likely to qualify, while using a small, non-essential portion of a work is preferable. Conversely, using significant portions or works that negatively impact the original’s market is less likely to be deemed fair use. If uncertain, it is advisable to seek permission from the copyright holder or to use public domain images or licensed works, such as those under Creative Commons licences, that allow for derivative uses. Reproductions and Forgery

An artist can create a reproduction of a master’s artwork, but this process involves legal, ethical, and artistic considerations. Reproducing a master’s work is a valuable exercise for honing technical skills and learning from classical techniques. This practice, common in art education, allows artists to understand a master’s style and adapt those lessons into their own work. If executed well, reproducing a famous piece can showcase an artist’s talent and potentially lead to a lucrative career. Additionally, faithful reproductions help preserve the master’s legacy, making their work accessible to new generations and enhancing cultural impact through education.

Legally, artists can create and sell reproductions of master artworks that are in the public domain, typically 70 years after the artist’s death. Transparency is crucial; reproductions must be clearly labelled to avoid misrepresentation. For living artists or works still under copyright, permission from the copyright holder is required. Misplacing your signature on a reproduction can lead to confusion, so it is advisable to copy the master’s signature and place your own on the back. A reproduction becomes a forgery when the artist or seller intentionally misrepresents it as an original work by the master. The key difference lies in the intent to deceive, as forgeries involve false attribution and can constitute criminal fraud. The Use of AI-Generated Reference Material

The rise of artificial intelligence in creative industries has sparked discussions around ethics, originality, and ownership. While AI can be a valuable resource for generating ideas and streamlining the creative process, it often draws from vast datasets of pre-existing art, blurring the line between inspiration and unintentional copying. As creators in a digital world, we must remain informed about how we engage with others’ work and share our own, ensuring that we respect copyright and licensing to foster a culture of innovation and ethical growth.

The question of copyright ownership for AI-generated artworks is complex and depends on the level of human involvement. Generally, copyright law requires human authorship, meaning that purely AI-generated works may not qualify for protection since AI cannot hold copyright. However, if an artist significantly directs or modifies the AI-generated artwork, they may retain copyright if their contribution meets originality standards. The role of AI is crucial; if it serves merely as a tool, the artist can claim copyright, but if the AI generates most of the work with minimal human input, it may not be eligible for protection. Legal interpretations continue to evolve as AI becomes more prevalent, and artists must demonstrate clear creative direction beyond what the AI could achieve independently to assert ownership.

I use AI to generate reference images for my weekly lessons, which is much faster than finding artists whose artworks I need to download and print for use as references. Art Movements that Challenge Copyright Law

The Pop Art movement and Dadaism both challenged traditional ideas of art and often blurred the lines of copyright, but their relationship to copyright law is complex.

Dadaism

Dadaists frequently used collage and found objects to create works that often incorporated existing, copyrighted materials. Their aim was to subvert and critique established norms, including intellectual property. While Dadaists were not primarily concerned with copyright, their use of pre-existing materials would likely be considered copyright infringement under today’s laws.

One of the best-known and most iconic examples of Dadaism is Marcel Duchamp’s Fountain (1917). This artwork is a porcelain urinal, which Duchamp signed “R. Mutt” and submitted to an art exhibition. Fountain challenged traditional notions of art by elevating an everyday object, known as a “readymade,” to the status of fine art simply through the artist’s selection and presentation. This piece embodies the Dada movement’s rebellious spirit, its rejection of conventional aesthetics, and its critique of the art world and society. Pop Art

Pop Art artists, such as Andy Warhol and Roy Lichtenstein, often used mass media imagery and popular culture icons in their works. This included the use of copyrighted images (e.g., advertisements, comic strips) in ways that would today raise copyright issues. Some of these works led to legal disputes, but many were defended as transformative under the concept of fair use, particularly when the artwork was seen as adding new meaning or commentary to the original.

One of the best examples of Pop Art is Andy Warhol’s Campbell’s Soup Cans (1962). This series of 32 canvases, each depicting a different flavour of Campbell’s soup, is iconic in its use of mass-produced consumer goods as subject matter. Warhol’s work reflects the Pop Art movement’s focus on popular culture, commercial imagery, and the blending of high and low art. By presenting everyday objects in the context of fine art, Warhol challenged traditional art forms and emphasised the growing influence of mass media and consumerism in contemporary life.

Another quintessential example of Pop Art by Roy Lichtenstein is Whaam! (1963). This artwork features a dramatic comic book-style depiction of an aerial dogfight, showcasing Lichtenstein’s signature use of bold colours, Ben-Day dots, and speech bubbles. Whaam! captures the essence of popular culture and mass media, transforming a commercial illustration into fine art. The piece exemplifies Lichtenstein’s exploration of the intersection between art and consumerism, making it one of the defining works of the Pop Art movement.

Both movements frequently used copyrighted materials without explicit permission, often pushing the boundaries of fair use. While they may not always have respected copyright laws, their works have sparked ongoing debates about artistic appropriation and the balance between creativity and intellectual property rights. Significant Court Cases and Fine Art Copyright Infringement

There have been several notable court cases involving famous fine artists who were accused of copyright infringement, often revolving around the use of existing images, photographs, or other artists’ work. These cases highlight the complexities of copyright law when applied to fine art. Here are some significant examples:

Rogers v. Koons (1992) Artist: Jeff Koons Issue: Koons created a ceramic sculpture titled String of Puppies from his exhibition Banality, which was a three-dimensional copy of a photograph by Art Rogers. In 1989, Rogers sued Koons for copyright infringement. Outcome: The court ruled in favour of Rogers, stating that Koons’ work was too similar to the original photograph and did not qualify for “fair use.” Koons was ordered to pay damages to Rogers. Significance: This case set an important precedent that even famous artists cannot appropriate copyrighted works without permission, especially if the new work doesn’t transform or comment significantly on the original. Cariou v. Prince (2013)

Artist: Richard Prince

Issue: Richard Prince used photographs from Patrick Cariou’s book Yes Rasta in his series of artworks without permission, altering them slightly by adding paint and collage elements.

Outcome: Initially, the court ruled against Prince, but on appeal, the Second Circuit Court of Appeals found that 25 out of 30 of Prince’s works were sufficiently transformative to qualify as “fair use.” Five pieces were sent back to the lower court for further review.

Significance: This case expanded the interpretation of fair use, emphasising that if an artist’s work transforms the original and creates a new meaning or message, it may be protected, even without permission from the original creator. Blanch v. Koons (2006)

Artist: Jeff Koons

Issue: Koons used a portion of a photograph taken by fashion photographer Andrea Blanch in his painting Niagara, Silk Sandals by Gucci. Blanch sued Koons for copyright infringement.

Outcome: The court ruled in favour of Koons, determining that his use of Blanch’s photograph was “transformative” and therefore protected under fair use. Koons had altered the meaning of the image by placing it in a different context, which satisfied the fair use defence.

Significance: This ruling reinforced the idea that appropriation art can qualify as fair use if it transforms the original work in a meaningful way. Stock Photo Licensing and Composite Imaging Summary

When purchasing a stock photo, the ability to create derivative works, such as paintings and printed copies, depends on the licensing terms. Standard licences usually allow for personal or limited commercial use but often do not permit mass reproduction of derivative works. In contrast, an extended licence may grant broader rights, including the creation of derivatives for commercial sale. It is essential to review the specific licence for restrictions on derivative works and to ensure that any commercial use is permitted. Additionally, some licences may require attribution to the original photographer. Modifying an image does not automatically grant reproduction rights, so understanding the licensing terms is crucial.

For composite images made from multiple downloaded sources, legal considerations surrounding copyright and licensing are significant. Most internet images are copyrighted, and using them without permission can lead to infringement. It is important to ensure that any images used are under licences that allow for derivative works and commercial use, such as certain Creative Commons licences. Public domain images can generally be used freely, but restrictions may still apply in specific contexts. Fair use may apply in limited situations but typically does not cover commercial uses like selling prints. To legally create and sell derivative works, proper licences or permissions must be obtained for all images used. Using images without appropriate licences can lead to significant legal issues, including fines or lawsuits.

Steal like an artist

Steal Like an Artist is a popular book by Austin Kleon. It provides creative insights into how artists can draw inspiration from existing works and develop their own style through exploration and borrowing ideas. The book encourages creativity, originality, and embracing influences in a positive way. Kleon contends that the boundary between inspiration and theft is often blurred, urging readers to critically assess the creation and value of art.

Artists frequently learn by deconstructing and imitating others’ works, which enriches their skills and artistic vocabulary. This process involves skill development in techniques, styles, and concepts. Originality is cumulative; artists synthesise influences to create unique expressions that reflect their voices. By reinterpreting existing works, they infuse them with personal perspectives, leading to new interpretations that can feel original. Ultimately, art is a dialogue with cultural contexts, where originality often emerges from engagement with previous works rather than isolation.

The quote by Oscar Wilde, “Imitation is the sincerest form of flattery that mediocrity can pay to greatness,” encapsulates the idea that while imitation may be a form of admiration, it often reflects a lack of originality. Wilde suggests that those who imitate great artists or thinkers may do so out of a desire to elevate themselves, yet their efforts can fall short of true creativity. This statement highlights the tension between admiration for greatness and the challenge of achieving it independently. David Bowie and Pablo Picasso both echoed the sentiment that creativity involves borrowing from existing works, although they did not originate the idea. Bowie stated, “The only art I’ll ever study is stuff that I can steal from,” reflecting a rebellious approach to inspiration. Similarly, Picasso famously said, “Good artists copy, great artists steal,” emphasising the transformation of borrowed ideas into something uniquely personal. Many artists across various fields have expressed similar views on imitation and inspiration. For instance, T.S. Eliot remarked, “Immature poets imitate; mature poets steal,” highlighting that great artists transform what they take. Igor Stravinsky stated, “A good composer does not imitate; he steals,” while Steve Jobs adapted Picasso’s quote to illustrate innovation as building on others’ ideas. Salvador Dalí stated, “Those who do not want to imitate anything, produce nothing,” emphasising learning through imitation, and William Faulkner encouraged artists to focus on personal growth rather than mere competition. These sentiments collectively underscore the complex relationship between inspiration and originality in art.

Naming and shaming fellow artists on social media for alleged copying can have several detrimental effects. Firstly, it can harm your professional reputation, as public accusations may portray you as insecure and lead to backlash from the community. Secondly, making unfounded claims could expose you to legal risks, including defamation. Additionally, such actions can create a toxic atmosphere on social media, resulting in division and negatively impacting your mental health.

Instead of shaming, fostering constructive communication through private conversations can lead to resolution and even collaboration, enriching both artists’ practices. Ultimately, focusing on your own artistic growth and creativity is more beneficial than fixating on perceived imitations.

Conclusion

In conclusion, originality in art is not about creating something entirely new but rather about how an artist uniquely engages with and transforms existing ideas. This process is essential for artistic evolution, as inspiration from others plays a crucial role in creative growth. While copyright protects specific artworks, it does not extend to an artist’s style or technique, which remain part of the public domain for others to explore and adapt.

Many argue that we live in a “copy and paste” age, characterised by easy access to digital content and a culture of remixing and repurposing existing works. This phenomenon is facilitated by the internet, where information, images, and ideas can be quickly duplicated and shared.

While this practice can foster creativity and innovation, it also raises important questions about originality, ownership, and intellectual property rights. In this environment, distinguishing between inspiration and plagiarism becomes increasingly complex, challenging traditional notions of authorship and creativity.

The quote, “Take not from others to such an extent and in such a manner that you would be resentful if they so took from you,” is from The Epistle to the Son of the Wolf by Bahá’u’lláh. This work emphasises principles of justice, fairness, and the Golden Rule.

There is a fine line between inspiration and infringement…