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Q. If I’m learning to paint by copying other artists’ work from the Internet or pictures in books for my own benefit (not wishing to sell them), is that legal? Also, can I legally sell a copy of a painting of another artist (living or dead), so long as on the front of the painting I sign my name followed by “copied after” plus the original artist’s name?
A. Historically, artists perfected their skills by copying the works of old masters. In fact, this still goes on today in many American and European museums, where each copy is required to have different dimensions from the original in order to prevent sale of the copy as an original.
Copying pre-existing works is legal, so long as the original work is in the public domain (meaning that the copyright on that work has expired). If, however, the copyright has not expired, the copyright owner has several exclusive rights, including the right to reproduce the copyrighted work and the right to sell the copyrighted work. This means that unless a defense such as fair use is available, the making of an unauthorized reproduction of a protected work (for example, copying another artist’s painting) is an infringement if the copy is substantially similar to the original. The unauthorized sale of an infringing copy may also be an infringement.
It is, therefore, important for you to determine whether the works you copy are still protected by copyright or whether those works are in the public domain. When your copies are substantially similar to the original, you are safe only in copying works that are in the public domain. Merely identifying the source of the work you copied will not provide you with a defense, and doing so may even make it easier for the copyright owner to pursue a claim of infringement against you.
Note: Copyright laws are subject to change. This article was originally published in the April 2007 issue of Magazine and reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.