Monday, September 07, 2009

You cannot copyright nature

Did you know that you can't copyright nature?

I've recently come across a couple of blog posts which highlight some potential copyright pitfalls for artists who draw and paint nature in terms of:
  • natural history subjects,
  • animals and wildlife,
  • flowers and plants and
  • natural landscapes. 
Red Cabbage
coloured pencils on Art Spectrum Colorfix
copyright Katherine Tyrrel

If that includes you I suggest you read on!

The Art Law Blog has a couple of posts which explain the issues:
I'm adding these into my information site Copyright for Artists

Below you can find my bullet point summary of the points made in the posts - however you really need to read the original posts to grasp the full extent of the points being made.
  • you cannot copyright nature because you cannot claim ownership as the author
  • consequently you cannot corner the market in depicting a particular aspect of nature
  • you can only copyright those elements which are the artistic elements of the work - the aspects which you personally add to what nature created and make it distinctively your own work
  • you can only prevent other artists from copying the elements you added - ie those aspects which make your work unique
To understand what copyright protection you can claim for a work. Tobias Butler suggests that you should:

  • Carefully think about what could be considered your original elements.
  • If you find a similar work that was made before yours, make sure you have additional original elements and think about removing their original elements.
  • Keep an eye on people who had access to your works and development processes.
Copyright Pitfall No. 2: When Nature Inspires Your Art, Make Sure You Copy Only Mother Nature
What are the implications?

Here are some aspects which occurred to me:
  • does photorealism work against copyright? It seems to me that people using a photorealism style - as opposed to a more painterly style - are likely to have more difficulty identifying the artistic elements which make the work unique to them. (ie if somebody stood on the same spot and took a photograph of exactly the same aspect of nature they could create an exact copy if working in photorealism). The only elements they can copyright may be limited to the overall design of the image. However if somebody else took the photo then presumably the copyright for that element resides with the photographer not the artist and any painting is always a derivative work? So what elements are left for the photorealistic artist to copyright?
  • what is 'nature'? I began to wonder where the borders of nature began and ended. If nature includes all plants and animals and natural landscapes - would it not also include homo sapiens?
  • what about portraiture? Are portraits of people also included? If you paint a realistic painting of your daughter can you copyright it because you were a collaborative partner in the authorship of creation? (My tongue is not entirely in my cheek!)
Some questions for my readers

What's your reaction to this information? Did you know it already or are you feeling slightly stunned right now?

Does our inability to copyright nature suggest any more questions to you?

If you create art from nature, do you know what the elements of your own work are which sets it apart from what nature created?

Do you ever think about copyright before you start to create?

Making a Mark reviews......


muddy red shoes said...

Ha, what an interesting post, I NEVER think about copyrighting my paintings, I did them and really dont care if some one thinks they are so good they want to copy them. I also dont worry that I am infringing on natures copyright. I do use very rubbish digital photoes as part of my refrence collection but have found that working from someone elsed photo almost impossible, for me anyway, so therefore I dont worry about that either as I know that I dont do it. It does worry me all of this creeping legistation, like suing everyone for anything that goes wrong or happens to you. Bring back the good old accident I think, shit happens but it is important to look for the silver lining to the cloud not to try and line your pocket with silver. So I suppose I may be worried that that is where the mad copyrighting thing is coming from. I like to think of it as the sencerest kind of flattery!
Sorry...rant over!! (going to read the articles in full now(and find out that I have made a compleat fool of myself!!) sholud really be getting on with work)

muddy red shoes said...

Oooh, interesting articles! Like you said probably only really a problem when doing photorealisim.
Good points about the lighting and position etc...reminds me of something that!

Nancy Moskovitz, artist said...

In your opinion then, if I painted a watercolor version of your posted red cabbage matching as closely as possible, but added a small leaf near the bottom of the stem, does that infringe on your copyright? beyond the 2 artistic changes of medium and a wiggle of a compositional change?

In the same vein, how was that Florida Watercolor Society demoted prize- winning painting copyright case resolved?

p.s. to my mind, if it looks like a duck, walks like a duck.....

Katherine Tyrrell said...

Nancy - you would be appropriating most of my work and creating a derivative work and you cannot claim copyright on derivative works.

It wasn't the Florida Watercolor Society - it was the AMERICAN Watercolor Society - hence a very big deal indeed!

There are a number of links to the Luxemburg case on my copyright information site but the nuts and bolts were
- AWS required her to hand back the Gold Medal and she had to repay the prize money too
- she is banned from ever entering another AWS exhibition (for life I think)
- AWS never tested the painting for the "issue" which most artists banged on about - ie whether or not it was a proper watercolour
- because they determined the case on the basis of whether or not the work was original ie whether she was in a position to assert copyright. Since the photographers had never given up their copyright she was unable to do so and was judged as having produced a derivative work - which was rendered ineligible for entry

Case solved - but not resolved - if you know what I mean

I'm not sure whether or not the Canadian Society have decided what they are doing about similar allegations.

K. Henderson Art said...

The point is the CABBAGE can't be copyrighted but the painting can. If you work from someone elses photo you are violated the photographers copy right. Any can come and take a picture or paint Mount Rusmore. Mount Rushmore can't be copyrighted. But the photos and paintings of the mountain can be/are copyrighted

Katherine Tyrrell said...

@KHA - that is the point I'm making - with the caveat (if you read the lawyer's blog posts which I've highlighted) that you can only copyright that element which is artistic.

Like I said - if you do a photorealistic painting based on somebody else's photograph of something in nature there's not a lot left for the painter to copyright.

Anonymous said...

I found this post interesting but confusing. If nature could be "copyrighted" then does this mean that someone who paint horses ,for instance, could copyright horses and be the only person who could paint them? So the fact that nature can't be copyrighted is a good thing I should think. But when it comes to nature "reference" photos I wonder if the problem is with the term reference. I was taught years ago as a commercial art student it was o.k. to use photos found anywhere as "reference" (magazines, books etc."} as long as I did not copy them. So I sketch a lion in a picture and refer to photos for color, fur patterns, textures . In the end I have a picture that is my own and doesn't look like any one reference photo. I notice alot of these online art instruction sites have photo reference libraries and people are copying these picture slavishly thinking they are using them for reference. Maybe I'm wrong in my interpretation of this post?

Michelle (artscapes) said...

Hmmmm, no I agree with KHA on this one.

I am not a lawyer, but the logic in this is fragile. An object in nature is 3 dimensional. The lawyer's example was 3 dimensional. I am not sure that applies to a painting. But putting that aside for a minute, in spite of an artist's effort, the copy is STILL NOT the living object and is therefore unique. The question lies in whether or not you can distinguish it from nature. I think it is safe to say that you can distinguish a painting from the natural object and you can distinguish a plush toy! This case is much more similar to trademark law. The original company using the flag and ring may look upon those elements as the 'trademark' not as unique artistic elements distinguishing it from nature. Therefore, I feel the lawyer's post to be a little misleading.

There are too many missing details to determine what exactly was the basis for the judges decision. It depends upon where you are, but if you are employed to create a work of art, the copyright remains with the employer - not the artist unless the work is freelanced. The flag and ring alone would be enough in the cases I have seen, disregarding the frog itself.

In terms of a painting as a copy of nature, the viewpoint will be original, even if it is photorealistic. The painting is being copyrighted, not the object in nature. If the photo used by the photorealist painter was taken by someone other than the photorealist - then it is derivative - not because of the object of nature itself, but because of the composition (viewpoint), etc, of the photograph. Even if the photographer gives the painter permission, the photographer retains copyright and moral rights automatically. This can only be altered if copyright is SOLD to the painter, in which case, occasionally, moral rights are still retained.

I wouldn't, therefore, take this lawyer's posts at face value. Do some research....

Katherine Tyrrell said...

I keep thinking I need to go back and reread what I've written as people seem to be interpreting it in different ways!

@Anonymous - I do so agree that the term "reference photo" means different things to different people. I'm with you re your interpretation of what a reference photo is.

Katherine Tyrrell said...

@Michelle(artscapes) - I agree with you about the 3D versus 2D - which means that the aspect which can be copyrighted is the 2D aspect.

You can then copyright anything else which makes it DIFFERENT from nature.

I also agree with you re the photography aspect - as I indicate in my post. You can't copyright an image produced from a photo taken by somebody else because they own the copyright of that image and such works are always derivative and not original. That's why it's always better to use your own photos rather than using ones from a "reference library". I have a friend who contributed a reference photo to the WC RIL and has now lost count of the number of times she has seen it reproduced by other people. The reason her artwork sells is the unique way in which she creates images natural objects - and that's why that photo was popular and what people were copying.

Creating an original perspective is what makes something original.

I'd argue that with eg a landscape that you can stand on a spot and take the same photo - but you can't reproduce the same weather and the same lighting conditions and hence in principle every photo is unique. It's also possible to specify what that is using the data from the camera. It's what makes the difference between my photos and those of a professional photographer.

Similarly, with wildlife, it's the photographer who has waited for something unique to happen who gets the great image. Another friend spends hours waiting to take a photo to get something unique and different.

Maybe people could comment the other way round and tell me how a photorealistic copy of a photograph of nature can be copyrighted - other than in relation to the fact it's transformed into a physically different form. What part of the image is original and can be copyrighted?

Michelle (artscapes) said...

It's easily becoming semantics, isn't it? :-D And I agree about with your landscape interpretation too.

As for the photorealist - If you took the reference photo that was used to make the photorealistic painting, then it is still yours. It is just an interpretation in another medium. Copyright is about 'source'. Primary, secondary, just like writing... In this case you are citing yourself.

Great topic, BTW, Katherine!

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