Mona Lisa with a moustache.
June 2, 2010 3:25 PM   Subscribe

Would I be infringing an artist's copyright if I copy her work for personal enjoyment?

It is a large installation and probably somewhat recognizable among people in my industry as over the past half decade or so it's been exhibited in a couple of buildings that host seminars on a regular basis. I love it. I want it. I contacted the artist, and she was very happy about the prospect of selling it. However, once I actually came in with my tape measure, it turned out that while it kinda fits in my current space, it will almost certainly be too large for any future homes I might move into.

I'd be glad to comission a somewhat smaller version of it for my house. The artist is very hesitant to commit to the work, and mentioned that it previously took her almost a year to create. I'm not happy about waiting that long, and there are other problems.

The materials chosen by the artist are fragile and nearly impossible to move without having to reconstruct the entire piece. They also significantly limit how much she could vary the dimensions. I feel that it would be inaproppriate for me to request that she built it out of the materials that I want – this is not bathroom remodeling, after all – and she is already not particularly open to a comissioned version.

Here is my dilemma: I could, on my own, create exactly the installation I want. It would be fun for me to do so, and I can't help being excited about the prospect of such a challenge. I would also build it of materials that make it easier to transport, something that is important to me as anticipate moving coast-to-coast several times over the next decade. My version would be a direct copy of the concept (no room for discussion), even if I vary other aspects.

I estimate that it would take me about three to four months to complete, working only on weekends, and that includes tracking down materials with the right dimensions. At this point, it would be pretty much just handywork for me, something I greatly enjoy and I'm good at – neither I nor others who've seen the work understand how it could take longer than that to construct. More importantly, I'm certain that my work would be better than the artist's from a technical viewpoint.

I like supporting local art. I even made sure that the artist would be getting all my money and not losing half to gallery fees. The installation costs about $6,000 which I am happy to pay, but I am not going to buy something that just doesn't work for me. I'm at best reluctant to pay that for a smaller version of a similarly fragile installation that will take a year to complete. It would cost me less than $1,000, including the purchase of a certain powertool, to build, but that really doesn't matter. There's also the issue that at this point, I honestly just can't wait to get started.

I'm not asking for any discussion of the ethical implications of proceeding with this plan.

Will I be breaking any laws? If so, how is this different from performing covers of Lady Gaga songs at school events, or reenacting scenes from Lost Translation at home? I will not be making any money off of my version of the art, and I certanly will never sell it. I would refer to it as "copy of Artist's Art" to those who see it.

If you were in the artist's place, what would you do (I'm not asking how you would feel) if I shared this plan with you?

Is the artist entitled to compensation? It's important to me to support fantastic local artists like her. She needs the money more than I do, but at the same time, I realise that it's not my job to market her skills. How would I even breach the subject with her?

Are there any solutions that I am missing?
posted by anonymous to Media & Arts (12 answers total) 3 users marked this as a favorite
I imagine the best way to go about this would be to get the artist's permission for you to do this, and then agree on a reasonable one-time royalty fee for you to pay her. This way, she still gets paid for her art, technically, and you can, guilt-free, go nuts with it.
posted by InsanePenguin at 3:33 PM on June 2, 2010 [7 favorites]

Will I be breaking any laws?

You should really talk to a competent copyright attorney in your jurisdiction about that. Your question doesn't even mention what country you're in.

how is this different from performing covers of Lady Gaga songs at school events

In the US, there are special provisions in the copyright law for live covers of songs.

reenacting scenes from Lost Translation at home?

As far as I know there are not special provisions for this, but it's also a transient thing. Reenacting scenes at home is different from, say, filming a shot-for-shot remake and exhibiting it in your home, which is closer to what you're talking about.
posted by jedicus at 3:34 PM on June 2, 2010

Oh yeah, if you do what I suggest you might want to pay a lawyer to write up a contract so she can't demand royalties from you later when you show off the work to your friends.

I am in no way a lawyer, though I have sold art previously.
posted by InsanePenguin at 3:36 PM on June 2, 2010

I am not a lawyer.


Hmmm....this is tricky. And, really, it might be hard for a lawyer to answer as well. I feel like this falls into one of those things where, sure, someone could sue you. But, it will probably be up to a judge to look at the preponderance of evidence and make a call which I could see falling on either side of the line or somewhere in between.

If you just saw this piece and went home and hammered and welded away to make your own version, I can't imagine anything ever coming from it. Now, you try to pass it off as the artists' work or sell it under the artists' name -- essentially creating a fake -- then, yes, I can see you not holding up in court so well. But, I don't think this is any different than sitting at home, recording your own versions of very popular songs and listening to them in your living room.

However, you've talked extensively with this artist. Will you be hanging out with them in the future? Will this person's friends be hanging out in your living room? I think there's a whole other set of issues here. If this were me, I'd take the semi-weasel way out -- I'd make a donation, as a patron of the arts -- to both the artist and maybe the gallery or perhaps another charity that the artist is involved in. Whatever makes you feel good and then go make your inspired piece. I have a hunch that you actually won't find it as simple to make as you think and that it may cost more time and effort than it looks and that you will, in fact, be somewhat less satisfied with your copy. After all, you're missing the artist's special touch which is probably what really draws you to the piece.

A third way out -- buy another piece from the artist that fits into your house. Then you have a piece of artwork that represents them. Then get inspired to create your own work and go crazy. I think unless you're a skilled faker, I really can't imagine it looking as similar as you hope and therefore I think you should go for it but make it your own inspired vision.

But, really, if you're very involved in this artist's community, might be best to leave it alone. But that's not a legal issue, that's the ethics of social connections.
posted by amanda at 4:05 PM on June 2, 2010

It depends on what country you're in.
But, pretty much all art is based on previous art, and the fact that there are important differences between what you want to build and what the original piece can offer you, suggests to me that you should proceed with this as if it were your own work building on the work done before you. Your choice of different (less fragile) materials, and the technical improvements you make, are the start of stamping your own mark on this. Is there more you can change to make this you own?

I think my suggestion is that to be the good guy, talk to the artist about a one-time licensing fee for their blessing for you to make a one-off reproduction (the construction of which is not subject to their oversight), and note that you unfortunately have a deadline to get this (because you want to get started and don't want this to drag on). If that works, great. Everyone wins. Artist gets free money and gets to keep their art. You get their blessing for your project.

If it doesn't work, then plan B is to go ahead with the project anyway, but with more emphasis on making it your own evolution of the work, inspired by their work rather than a simple, slavish reproduction.

And talk to a lawyer. My suspicion is that the artist could not legally stop you, but you'll want to get that confirmed, and the artist being legally unable to stop you doesn't mean everyone will see it as Ok, especially if the artist is unhappy about it (a lot of artists think like kindergarten kids when it comes to how much of the idea in their works is property, and a lot don't), hence first making a licensing offer, regardless of whether it is accepted, and if not, making the work yours to the extent that you are able while still producing what you want.

Also, if doing Plan B, noting (on a plaque perhaps) that your work is inspired by a piece by [artist name], will go some way towards undermining (social, not legal) claims of copying - it precludes someone thinking that you're pretending that you came up with it all by yourself (which would suggest plagiarism), and immediately challenges the assumption that the work is not legitimate in and of itself.
posted by -harlequin- at 4:11 PM on June 2, 2010 [1 favorite]

Assuming you're in the US:

Will I be breaking any laws?

Probably, although you'd have to consult with a lawyer for a much better opinion. (I don't say "to be sure" because even the lawyer might not be able to give you a 100% certain answer; fair use is a gray area of the law, and you can't be sure whether a fair use defense would be successful until it actually goes to court and a judge rules on it.)

If so, how is this different from performing covers of Lady Gaga songs at school events

My understanding is that schools often do pay licensing fees for these sorts of things. At least, say, if you have a major university marching band performing a song, you can be pretty sure it's been properly licensed. If it's some second grade talent show, maybe they have, or maybe they're just relying on the fact that it would be a public relations nightmare for the record label to sue, even if they would win in court. More info.

I will not be making any money off of my version of the art, and I certanly will never sell it.

You might not sell it, but it could still be sold. Suppose you died suddenly, and your heirs decided to sell it? I raise this point not as an ethical concern, but to explain why a judge might not look so kindly on the economic effect (one of four factors considered in determining whether something is fair use) as you might think. Not to mention that you're affecting the earnings potential in as much as you would buy a copy if you could, but presumably not after you had made your own copy. (And that the artist won't currently make a copy might not help, as she could always change her mind down the road.)

I would refer to it as "copy of Artist's Art" to those who see it.

That would make it not plagiarism. It would not change whether it was copyright infringement or not. Plagiarism and copyright infringement are completely separate issues. If I make copies of and sell The Stand without appropriate permission, it's still copyright infringment regardless of whether I put "by Stephen King" or "by DevilsAdvocate" on it. The latter is also plagiarism, but both are copyright infringement.

If you were in the artist's place, what would you do (I'm not asking how you would feel) if I shared this plan with you?

Well, how I feel would ultimately determine what I would do, so it's impossible to answer one without considering the other. Personally, I'd feel flattered, and offer to license you the right to make one copy for personal use and not for sale, for what I felt was a reasonable fee (maybe the cost of the installation minus the cost of the materials). Other people might not feel flattered, and would respond differently.
posted by DevilsAdvocate at 4:22 PM on June 2, 2010

Not a lawyer, but this fellow suggests that duplicating the work would be a violation. Depends, I suppose, in part on what you mean by "vary other aspects".

I'd say pose the proposition exactly as you have straight to the artist. Essentially give her right of first refusal on the small project as you conceive of it (materials, variations), and if she is reluctant, offer her a price for the diy project.

Me, I would be so stunned by the offer I'd probably go for it, though I might ask for some discrete markings on the piece that indicate Not By Original Artist (though approved by might be nice if you can get it). For her, it's pure gravy. Sort of like foreign language book rights. Suggest a lawyer draw up the conditions if the whole thing sounds too weird or dodgy for her.

In any event, kudos to you for wanting to support the artist.
posted by IndigoJones at 5:39 PM on June 2, 2010

I am a lawyer. I do IP law. I am not your lawyer, and this is not legal advice.

Unfortunately, someone looking at this description is not going to be able to answer your question, at least assuming US copyright law. It's very fact-specific, and in particular the line between an expressive work and an idea is fuzzy. It's also critical in this case, since "making an installation" could be on either side, depending on the specifics.
posted by raf at 7:34 PM on June 2, 2010

There is no way this is illegal.

That said, I really like harlequin's idea of a one-time licensing fee. You get great art and you support the artist. It costs much less than buying the actual piece, so that piece remains and provides enjoyment to others who see it. Bringing something like that into your own home is a little greedy. But liking something so much that you would build it yourself? The artist should recognize a true fan when they see one. Possibly even come and join you in the construction almost like a consulting job. There are any number of ways this can be done besides simply buying the original. The fact that you're already in touch with the artist is a great first step. Good luck and cheers for wanting to support artists!
posted by infinitefloatingbrains at 7:37 PM on June 2, 2010

Perhaps I'm reading the question differently than everyone, or perhaps spending a day ever week in an art center has skewed my perspective, but I fail to see how making an interpretation of an existing piece falls into copyright law at all. Perhaps because at the studio, everyone tends to riff on everyone else, it's like jazz but with chisels and torches.

Isn't all art an homage to the art which has come before?

As I understand it, you're not talking about making a copy of her piece, you're talking about making something which was inspired by her piece.

I think a patronage to the artist might be in order, sort of as a "thank you", an offering to the muse, as it were. Perhaps 10% of the original piece, maybe more if you think it's appropriate, but I can't imagine any artist who would deny someone's desire to create new art.
posted by SecretAgentSockpuppet at 7:51 PM on June 2, 2010

I, um, ANAL. But I do work with copyright. You're not only not selling it, it wouldn't even be on public display AND it isn't a duplicate anyways. Besides the dimensions being different, it will also be technically different.

Go nuts.
posted by codswallop at 11:00 PM on June 2, 2010

Just saw this article in the Toronto Star that seems relevant: four friends made a quilt based on a painting (without approval from the original artist), it accidentally got donated to Goodwill, and now there is a 'citywide hunt' to get it back. It's not clear from the article whether the concern is from the copyright angle (although the paper makes sure to point out it's 'technically a copyright infringement') or just the sentimental value of the piece.
posted by Gortuk at 7:23 AM on June 3, 2010

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