Can I be sued for having made an NFT of a painting in my collection? + Other questions on artists’ rights, answers

Have you ever wondered what your rights are as an artist? There is no clear manual to consult, but we are here to help. Katarina Feder, vice-president of Artists’ Rights Society, answers all kinds of questions about the kind of control artists have – and don’t have – over their work.

Do you have a question for yourself? E-mail [email protected] and it can be answered in a future article.

It’s embarrassing for me to ask you this, because I graduated from law school and had content licenses for 20 years, but I don’t work with fine art and all that NFT stuff. confused me. I cannot reconcile DTV with my understanding of intellectual property. When you say “if you want to create a work of art that is not your own, you have to go to the source to get permission” it seems like you are not considering this scenario: what if someone is. not the artist but owns the original artwork? They own it, legally, even if it’s not their creation. Can the owner of this work of art make a DTV of it, which would obviously require making a digital reproduction? I have a cool original I’m thinking of NFT (is that a word?).

We like to use the term “NFT-capable” here in the old ARS offices.

Rest assured that your script is something we often contemplate. You’d be surprised how many people think that owning a Warhol entitles them to make goods out of it! But no matter how many Warhols you have, if you want to make an Andy Warhol t-shirt, you have to go through the magnificent Andy Warhol Foundation for the Visual Arts, which operates the artist’s domain, owns its rights. author. , and uses the proceeds from both to fund wonderful exhibitions across the country.

Copyright is granted to a creator at the time the work is “fixed in a tangible medium of expression. “Regardless of the number of owners of the work, the copyright always remains with the artist (at least until 70 years after his death).

While there are gray areas when it comes to the world of NFTs, they only exist because there is little case law out there and because so many of these tokens are sold on the dark web, where any theoretical breaches copyright would go unnoticed. What you’re proposing is kind of like someone who thinks they can sell the broadcast rights to Hulu. The perfume of a woman just because he owns the DVD.

TLDR: You own the work, not the copyright. Please don’t confuse the two, please don’t do this particular NFT, and may I also suggest to “tokenize” for your verbal form?

Artist Derrick Adams auctions off (licensed) NFT titled “Heir to the Throne” commissioned by musician Jay-Z to celebrate the 25th anniversary of his debut album Reasonable doubt at Sotheby’s. (Photo by Noam Galai / Getty Images)

I want to make an NFT using art from an album art that I really like… is that ok if I modify it just a little bit, and does this same rule apply to the music that I do someone else did?

Hmm, that depends. How much do you love him, exactly? You say you love him “really” but the affection has to be extremely strong for it to be legal …

I laugh! No. .. you can not do that. Please see my previous answer.

To dig into the weeds of your question a little further: while I appreciate the nerve, your tendency to tweak these IP elements “just a little” is a wake-up call. When it comes to fair use – the term for an acceptable appropriation of copyrighted material – we generally opt for “transformer“changes. This term actually comes from a Lawsuit in 1994 against 2LiveCrew for their sampling of “Oh, Pretty Woman” by Roy Orbison in which the Supreme Court ruled that, as a parody of the original work, 2LiveCrew’s sometimes disgusting song constituted fair use. That’s a pretty high bar to cross, and I guess you don’t want your new NFT or your new song to be a commentary or a complete makeover of the other song, since you only intend to change it. ” just a little bit”.

Like this Fork item unpack, sites like WhoSampled and YouTube are game-changers when it comes to lawsuits against “example of a troll“, because having just a small piece of another song in your song can expose you to a lawsuit. rising values ​​for music copyright in recent years.

You have to be very, very careful when it comes to sampling music. That said, you can still call it a remix (although that’s a disclaimer: you’ll need permission for that as well).

Spencer Elden recreates his pose from the cover of Nirvana's Nevermind album, shot when he was a baby, 25 years later.  Courtesy of John Chapple.

Spencer Elden recreates her pose from Nirvana’s album cover no matter, shot when he was a baby, 25 years later. Courtesy of John Chapple.

I read that the baby of no matter continues Nirvana and their associates. Why? How? ‘Or’ What? I was under the impression that he liked the album cover.

This issue is not really related to copyright because the lawsuit alleges that the cover is “commercial child pornography. “But there are a number of other less bombastic questions related to this that we can explore.

The first is that of likeness rights, which afflicts many who write in this column, but this is the age of social media, so people are right to be paranoid. The photograph in question was taken by Kirk Weddle, now a co-accused, who was friends with the father of former naked baby Spencer Elden. After a week of shooting babies, Weddle apparently called Rick Elden and said, “You wanna make $ 200 and throw your kid in the drink?” Rick obliges, a dollar on a fishing line is superimposed on the photo, and here we are now, entertain us.

While it is true that as a minor Spencer could not consent to this, his father could have. We have discussed the legality of album covers in the past and contracts are often tight.. It is unlikely that Weddle would have shot any of these children without first having their parents sign the likeness rights.

We might also think that as a participant in this work, Spencer should have the right to deny it, as artists can do that with their own work whenever they want. Cady Noland had a painting of hers printed at Sotheby’s not so long ago when his condition did not meet his standards. She did it thanks to Visual Artists Rights Act, 1990 (VARA), which was probably inspired by that of Richard Serra Inclined arch fiasco and allows copyright owners even greater control over their works.

Alas, Elden is in fact not the copyright owner, or even really the subject of the photograph in question. This means he may have risked a lawsuit himself. all those times he’s recreated the photo over the years, although I doubt Geffen Records would want to pursue a guy who was clearly having fun with it all. He even had the word “Nevermind” tattooed on his chest. “I always say, ‘[My penis has] changed, do you want to see it? ‘ “, he said CNN in 2011.

It seems to me possible that the no matter baby can run after a dollar.

Une photo de <i>Candyman</i> from 2021. Photo: Universal Pictures.  “width =” 1024 “height =” 539 “srcset =” https://news.artnet.com/app/news-upload/2021/09/candy-1-5e58045db5863-1-1024×539.jpeg 1024w, https: / /news.artnet.com/app/news-upload/2021/09/candy-1-5e58045db5863-1-300×158.jpeg 300w, https://news.artnet.com/app/news-upload/2021/09/ candy-1-5e58045db5863-1-50×26.jpeg 50w “sizes =” (max-width: 1024px) 100vw, 1024px “/></p>
<p class=A photo from 2021 Candy. Photo: Universal Pictures.

I am a visual artist who works with video and am currently preparing a shot remake for the new shot. Candy, who loves Hollywood so much these days isn’t quite a remake or a sequel. We are interested in playing on the importance of repetition (necessary to summon the Candyman, of course). Can I anticipate copyright issues here?

My impulse is to say that’s fine, even though your question lacks some detail that I might have wanted if I were your lawyer (or, indeed, a lawyer of some sort). But you need to know that, like a pair of teenagers kissing in a horror movie, you are in dangerous territory.

As we have addressed in other iterations of this column, fair dealing is generally determined by four factors: the purpose of the new work (profit vs. education, etc.), the use of the copied work (artistic vs. commercial, etc.), the amount of source material sampled , and whether or not the new work could harm the market for the original. You can’t sell a Superman coffee mug when Warner Brothers makes theirs with more or less the same level of self-expression (none), but you can put the character in a painting if you are Peter Saul, because you’re not targeting the comic book convention crowd with this job.

The fact that you wanted to do your shot-for-shot remake makes me think, because you’ll be sampling the entire movie, but then that’s how these The Raiders of the Lost Ark the kids did it when they remade this film with portable cameras. I think the most important argument in your favor is that you are not trying to hurt the new market. Candy. You will probably show it for free in an art gallery and sell expensive editions to collectors. It’s not the same audience, and it’s a completely different business model.

There are steps you can take to improve your position. If you caption your own work After Candy (2021), for example, it makes your intentions even clearer for director Nia DaCosta, producer Jordan Peele, et al., if they find out your version. Make sure your gallery also explores the legal ramifications before showing the work.

Your principle of motivation is noble, and similar to the impulse that led Gus Van Sant will do it again psychopath with Vince Vaughn in 1998. Hope you have better luck than him.

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