Art competitions and copyright - the AWS Gold Medal debate

This is a lengthy post highlighting issues relating to the use of reference photographs for artwork and is of relevance to:

• art societies which have to deal with disputes about copyright
  
• artists selling work or entering competitions with artwork based on a reference photo taken by somebody else, and
• artists who work in a hyperrealistic/photorealistic way.
  

Regular readers will know that earlier in the year there was a bit of a debate in the art section of the blogosphere in connection with changes to the rules of a couple of art societies I belong to. The rule change concerned the use of photographs taken by other people and I commented on the important issues in CPSA and UKCPS: originality in concept, design and execution.

The issues faced by those two art societies are exactly the same as those faced by all other art societies the world over. Most art societies now make it explicit that works submitted for juried exhibitions

• must NOT be copies of existing copyrighted works by other people and
• must be original ie the artist should be capable of asserting copyright over the work submitted.

Yet another debate has been taking place on the Internet in the last few weeks. This one is about whether or not the 'hyper-realistic' watercolour painting which won the American Watercolour Society's Gold Medal this year has been derived in a permissible way from two royalty free photographs posted on various sites on the Internet. The allegations being made and resulting debate raise some important issues for:

• the Executive or Governing Body of all art societies,
• all artists who use reference photographs taken by other people,
• all artists who work in a hyper realistic way; and
• all jurors asked to judge submissions of hyper-realistic art.

First a quick review of what's happened - followed by a few notes about copyright and derivative works and finally a discussion about art society 'rules' and what art societies and artists can do to avoid such disputes/debates in future.

The allegation

American Watercolour Society - The AWS Gold Medal was awarded in Spring 2008 and the painting which won it is now part of the 141st AWS Annual International Exhibition Touring May 17, 2008 - April 5, 2009

Initial queries and artist's perspective - Queries were apparently raised as early as May about the painting in question. AWS published a notice (now published here) which states the artist's perspective - which is that the photographs were either copied from her website or her work was photographed while on exhibition.

Wet Canvas - In August, a thread Copyright infringement at AWS? was started on the Wet Canvas Watercolor palette Forum which attempts to provide an overview of what has happened. Essentially the thread provides very clear visual evidence of the allegations being made (outside WC) through the images included in the author's first post. In summary, questions are raised about whether (1) there has been an infringement of copyright through the artist creating the award-winning work from two photographs and (2) whether this is not an isolated instance for this artist. The thread was informed by the following....

Shutterstock - a 37 page thread Check out this thief is rather more precise as to concerns and appears to have originally generated the debate on stock photography website Shutterstock. The specific allegation made is that the artist did not pay proper regard to the copyright of the photographer. More seriously, as the thread progresses, the allegation extends to a further photograph (a self-portrait of the forum member/photographer, posted in the thread 6.43pm on 18.08.08) and another painting based on that. There are suggestions that other photographers are also affected.

The basic point made by the photographers affected is that these are royalty free photos (some of which were posted on more than one site), however the copyright was never given up, any copying is an infringement of copyright unless permission is given and no model release was sought in relation to the second self-portrait photo/painting of the female photographer.

The copyright issue - The issue may therefore be about the need for artists to understand the difference between royalty free and copyright as technical terms and where photographs can be used

If I modify an image, can I claim copyright to that image?
You may modify an image and use it, however, you may not claim copyright to that image. Shutterstock and its suppliers continues to own all images, whether or not they have been modified.

What does 'royalty-free' mean?

“Royalty-free” is a type of a stock photo license that provides for the unlimited use of a photo in any media defined in the licensing terms. “Royalty-free” is the opposite of “rights-managed.”...All the photos on Shutterstock are royalty-free and so do not require an individual license. All photos are bound by one or both of the two types of licensing agreements. (my bold)

Where can I use Shutterstock photos?

According to our Licensing Terms you may use the photos in or on

• Web sites
• Multimedia presentations
• displays for trade shows
• billboards/banners
• packaging/labels
• Broadcast video
• On business letterhead
• Brochures
• Business cards
• Office decoration
• Decoration for restaurants
• Public areas
• Decoration in stores
• And many other uses outlined in our Standard and Enhanced Licensing Terms

Shutterstock FAQs

Note Shutterstock's statement on the latter in - and note that permitted uses do NOT include art for sale and/or art submitted to competitions with prizes.

Bottom line, if an artist uses royalty free photographs for work for competitive exhibitions/sale they need to be very clear what the licence actually says. They may vary between sites but the photographers state that copyright is usually retained by the photographer in virtually all licensing agreements.

Photographers in general always have an advantage in proof terms if they retain the raw file for all photos submitted to royalty free sites. My understanding is that this enables them to claim ownership and copyright with very little difficulty due to the origination data stored on file.

Anthony Correia (Manager, Content Acquisition for Shutterstock) provided a final 'not proven copied from this site' comment on the thread, just before it was locked. Part of his statement is repeated below.

Under no circumstances should the artist, or any artist, for that matter, claim copyright of an image that was not created by them. Technically, the painting is a derivative work. The copyright in the images remains with the original creators.
Anthony Correia

Correia appears to accept that the painting is being classified as a derivative work based on stock photographs. The reason he does presumably lies in the definition of derivative work (see below). However note that not all derivative works are copyrightable.

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.
US Copyright Office Circular 14: Derivative Works (currently under revision)

However there are two important principles which seem to relevant in this and similar instances

• derivative works can only be created with the express permission of the original copyright holder (and in this instance, the copyright holders appear insistent that this has never been given)
• for the artist of the derivative work to be able to assert copyright, the derivative work must be substantially different (in this instance, the AWS did not insist that the artist should be able to assert copyright - although this was implied)

In simplistic terms, if (1) the photographers concerned can establish proof of their ownership of the original copyright and (2) if the artist cannot produce a proof of permission or transfer of copyright - then it would appear the work is not original and the artist cannot assert copyright. In which case I would have thought the AWS would then need to consider whether the work is eligible for inclusion in the exhibition never mind whether it can win the Gold Medal.

The artist - The artist's website now generates a page load error and a message that the URL cannot be found. Her YouTube account which contained images of her work has also been closed.

What's the solution?

In my view, Art Societies have to be mindful of the impact of such allegations on the reputation of the society and ALL its members - not just the member at the centre of the dispute/debate.

Whatever the rights or wrongs of the current AWS example, what's needed is a risk management approach by ALL PARTIES which addresses how this sort of issue can be avoided in the future.

Art Society 'rules' - The place where a lot of art societies have started is a revision to the rules.

On the face of it the American Watercolour Society 'rules' (see below) relating to submissions to its annual exhibition appear clear enough.

The Annual Exhibition is open to all artists working in water media (watercolor, acrylic, casein, gouache and egg tempera) on paper. No collage, pastels, class work, copies, digital images or prints; original work only.

That said, they appear to me to be a lot less explicit than the rules now used by a number of other art societies. AWS rules presume the artist submitting work has a good understanding about what 'original work only' means.

However the reality is that art societies do have to deal with artists who do not understand what they can and cannot do with reference photographs generated by other people. It's not unusual for issues to be raised with art societies in connection with copying, licensing and copyright. Typical problems relating to the originality of work include:

• artists submitting work carried out at least in part under supervision
  
• and/or copied from a photograph where the artist does not hold copyright
  
• and/or applying media to a digital print (usually referred to as the 'paint by numbers' approach).

Art societies which want to remain credible have tightened up their rules to avoid any misunderstanding and made them more precise. Some have responded to problems they've actually experienced while others see much sense in taking a proactive approach.

For example, compare the AWS "original work only" criteria to two other American art societies which spell out in a much more precise exactly what is not admissible.

• these are the rules of the Pastel Society of America which state that all works done in a school or under instructor supervision or copied from published photographs will be rejected.
• CPSA states that all work must be of original design, not copied from copyrighted or published material.

It is not OK to use someone else’s work of art as the subject of your colored pencil piece. If anyone can recognize the source from which your work is derived, it may be deemed as plagiarism even if executed in a different medium from the original work. It is critical for artists to be original and to nurture their own special vision and style
CPSA - Exhibition FAQs

The last thing any artist or art society needs is to be involved with a lot of time and effort, not to mention money, on long conversations via lawyers.

It'll doubtless take some time to work out a cost-effective solution for the futue but I'd like to suggest the following as worthy of consideration.

Art Societies - a risk managed approach

Art Societies need to:

• identify the risks which exist which may impact on their reputation (eg the fact that artists' understanding of copyright issues can be defective more often than is comfortable for all concerned.)
• create a plan to address and manage those risks through:
• promoting the professional development of their members (eg ongoing education about copyright matters)
• being precise and explicit about professional standards expected of artist members
• being precise and explicit about what exhibition rules relating to eligible works actually mean - to include insistence that the artist must be able to assert copyright over an original work - to avoid any misunderstandings
• considering ways they can validate hyperrealistic works receiving prizes and/or the subject of a dispute. For example, some art societies now require that all submissions and/or all works eligible for a prize must also submit photos and any other preliminary work that they are based on when asked.

Artists - professional development and professional behaviour

• Artists who sell their work and enter exhibitions offering prizes have a particular need to make sure that their personal and professional development includes learning about relevant legal matters.

• Artists need to:
• understand that ignorance is no defence for artists entering competitions
• make sure they read the small print of licensing agreements and submission rules!

If you're feeling a little vague on some matters relating to copyright or would like a refresher or a summary of reference sources try taking a look at Copyright and Orphan Artworks - Resources for Artists.

I've tried to present a balanced view in relation to the perspectives of all concerned - and I hope this post helps in some way to identify why issues relating to copyright and copying are of such critical importance to artists, art society and jurors.

If you have any queries or constructive comments to make please do use the comments function. I can't guarantee an answer but might be able to point you in the direction of a site which can.

[UPDATE:  These are two subsequent posts related to the AWS controversy:

• Statement on AWS Gold Medal controversy from President
• American Watercolor Society Gold Medal - the final verdict on Sheryl Luxenburg ]

Links:

• American Watercolor Society
• Wet Canvas - Copyright infringement at AWS?
• Shutterstock - Check out this thief
• Nita Leland (Exploring Color & Creativity blog) AWS Gold Medal endangered.