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.
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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:
- Copyright Pitfall No. 1: When Nature Inspires Your Art, Watch Out
- Copyright Pitfall No. 2: When Nature Inspires Your Art, Make Sure You Copy Only Mother Nature
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
What are the implications?
Copyright Pitfall No. 2: When Nature Inspires Your Art, Make Sure You Copy Only Mother Nature
- 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.
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!)
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?