Copyright In Famous Paintings
Which artworks would immediately come to your mind when we talk about famous paintings? Naturally, we would think of “Mona Lisa” by Leonardo Da Vinci, “The Starry Night” by Vincent van Gogh, “The Scream” by Edvard Munch, and so on. In fact, you may often come across these famous paintings being used and displayed whether on television, restaurant, social media, merchandise or any other places from time to time. Some questions may pop up in your mind that:- if you can also use or even copy these famous paintings on your social media or as a meme; and if you can use it in commercial sense e.g. printed on t-shirt, mugs, phone cover, etc.
It has to be noted that under the Malaysian copyright law (Copyright Act 1987), all artistic works (including paintings) are automatically protected without the need for any form of registration upon fulfilling certain requirements such as the work has to be original, and record or reduced to material form (tangible form). Many foreign countries actually have similar principles in terms of copyright protection because of intellectual property protection initiatives from around the world such as the Berne Convention For The Protection Of Literary And Artistic Works and other international treaty or agreement.
Exclusive Rights Of Copyright Owner
The next questions would be “what is the effect when an artistic work is protected by copyright law? what does it mean? and how will copyright affect you and everyone else?” Basically, the owner of a copyright work (usually the author, painter, or creator) shall have the exclusive rights to control the doing of certain acts in relation to the copyright work covering the following:
- the reproduction in any material form;
- the communication to the public;
- the performance, showing or playing to the public;
- the distribution of copies to the public by sale or other transfer of ownership; and
- the commercial rental to the public.
Therefore, copyright is infringed when someone carries out any of the acts above without consent of the copyright owner. Let’s discuss a few of these exclusive rights.
The Reproduction In Any Material Form
Under the Copyright Act 1987 (“the Act”), reproduction means the making of one or more copies of a work in any form or version, and in relation to an artistic work includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work. Hence, if an artistic work is protected by copyright, no one can duplicate or copy (including taking a photo or snapshot) such artistic work in any form be it digital or physical.
Note that even if you have bought an original painting, there are certain restrictions as to how you can deal with the painting. The laws state that you are not allowed to make copies of the painting. Merely because you own the physical painting does not mean that you own the copyright of the painting. Hence, it goes without saying that you are not allowed to make copies of the painting or make derivative works (e.g. modification to the painting) out of the painting for distribution or sale. The same is true when you have bought a book. It does not mean that you can then start to photocopy the book or make a digital copy of it and put them on sale. You merely own the physical copy of it and not the intellectual property.
The Communication, Performance, Showing Or Playing To The Public
Under the Act, communication to the public means the transmission of a work or performance through wire or wireless means to the public, including the making available of a work or performance to the public in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them.
Hence, you are also not supposed to show or display the painting (or any artwork, etc) to the public either via the internet, broadcasting station, physically, or otherwise. However, it is acceptable if the painting is displayed in a domestic setting and not to the public. Another common example is that a physical store owner is not allowed to play music or movie (although the music or movie is played from original DVD or source) in his store as it would amount to playing to the public which is one of the exclusive rights belongs to the copyright owner. Again, owning the physical painting (including music, movie) does not mean that you can do whatever you want with it. It is always subject to certain restrictions due to the existence of intellectual property rights.
Use Of Copyrighted Works
So then you may ask, since all these paintings and art works are automatically protected by copyright, how come someone is still able to use or duplicate them without liability or infringement?
Consent
The most common answer is that the user of the art works has obtained consent to use the same from the copyright owner. Consent can be obtained in the form of a license where the license is granted to the user in return for a licensing fee or royalty. In certain scenarios, it can even be royalty-free as long as consent is given. More often than not, consent must be recorded or in written form. Although verbal consent also works, but it may be very difficult to prove the existence of such a verbal consent when issues arise.
Defences / Exceptions
If any acts fall under one of these defences or exceptions provided under the laws, then it would not be an act of infringement. The detailed defences or exceptions can be found in section 13(2) of the Act. In general, such defences or exceptions include when it is used for research, private study, criticism, review, reporting of news or current events (fair dealing), parody, caricature, incidental inclusion, education, government use or legal process, and so on; subject to further requirements for each of the defences or exceptions.
Unknowingly Or Knowingly Use Of The Works
Not everyone is equipped with legal knowledge and many a time, he or she may not even know that certain acts are prohibited under the copyright laws especially when we are now living in a fast-changing digital era where information sharing is just too common. For example, by downloading an image from Google Images would probably have infringed the copyright of the copyright owner because the act of downloading involves duplicating the image file (artistic work) onto your computer. One has to always be mindful that “ignorantia juris non excusat” meaning “ignorance of the law is not an excuse”.
On the other hand, some people just do not care about copyright and intentionally infringing onto other people’s rights in order to obtain certain benefits.
Expired Works
Yes, you see it right, a copyrighted work (e.g. famous painting) has a protection period and it will be expired someday. Once it is expired, there is no way to renew or revive it. The rationale is that it is for the benefit of the public to have freedom to use and access to creative works. Section 17 of the Act provides that in general, copyright in any artistic work which subsists in such work under this Act shall subsist during the life of the author and shall continue to subsist until the expiry of a period of fifty years after his death. In some countries (e.g. United States), such period is seventy years instead of fifty years.
What then is the effect of expiry of a copyrighted work? Essentially, it means that the exclusive rights are no longer effective and applicable and the work is now in the public domain free to be used or copied by anyone. Back to the famous paintings of “Mona Lisa”, “The Starry Night”, and “The Scream”, since the authors / painters have died over at least seventy years, there is no longer copyright protection in these famous paintings. Hence, these famous paintings (artistic works) are now in the public domain. They can be freely duplicated, adapted, reinterpreted, and modified by anyone. However, it is always good to acknowledge the author of the works.
