Using images of artwork on merchandise

Question (asked on 27 July 2011 by Anonymous on the Post Your Questions Here page):

What's the rule in featuring Artwork on Merchandising (T-shirts, mugs, etc..) in the following scenarios:

1. I own the painting and the artist is still alive.

2. Somebody owns the painting and the artist is still alive.

3. Somebody owns the painting and the artist is dead (with heirs still alive).

4. A 'classic' painting i.e. Mona Lisa owned by a Museum.

5. A painting owned privately with the artist dead with no traceable heirs.

In the above scenarios who really 'owns' the artwork and who has the rights to replicate the work for merchandising? 

Great questions! These are probably of interest to many others as well.

The brief answer is: the artist (or copyright owner, i.e. an assignee) retains all rights for the duration of the copyright term, despite having sold the artwork itself.

Long answer with explanation:

Some general principles first, before I give my response to each scenario.

Copyright attaches to a work from the moment of its creation, but the copyright actually protects the expression of the idea, not the tangible physical work itself. In the case of paintings, then, the copyright remains with the copyright owner (usually the artist, unless s/he assigned his/her copyright to someone else, e.g. for a commissioned work), and does not pass on to the buyer of the painting. The artist is therefore free to reproduce photos of his/her painting even after selling the painting. In fact, in many jurisdictions, artists enjoy resale rights. If the first buyer of the artwork resells it while the copyright subsists, the artist is entitled to a portion of the sale proceeds.

In general, copyright subsists for the lifetime of the creator plus 70 years (under US law, if published after 1 January 1978, in Europe and Australia and other countries) or 50 years (in other jurisdictions that have not yet adopted a similar extension, e.g. the Philippines) after the creator's death. So even upon the artist’s death, the copyright may still subsist and is rightfully owned by the creator’s heirs during those 70 years. If the artist dies intestate (i.e. without heirs), the laws of his country on intestacy will apply. In some cases, the State (government) may own that copyright.

To put an image of the artwork on T-shirts, mugs, etc., you would need permission from the copyright owner (artist) or the owner’s heirs if the copyright still subsists. Such permission may simply be a written permission for no fee, or may take the form of a formal copyright license with a fixed fee, or a fee plus royalties from the sale of the products.

Now to the scenarios.

1. I own the painting and the artist is still alive> Copyright still belongs to the artist or his/her assignee, and not to you. You need permission from the copyright owner to use the image on your merchandise.

 
2. Somebody owns the painting and the artist is still alive> Same as #1.

 
3. Somebody owns the painting and the artist is dead (with heirs still alive) > If the copyright is still in effect (within 50 or 70 years, as the case may be, after the artist’s death), then same as #1.

 
4. A 'classic' painting i.e. Mona Lisa owned by a Museum.> The Mona Lisa is already in the public domain, as it has been centuries since Da Vinci’s death. The fact that the Louvre Museum owns the tangible object does not mean you need their permission to use the image of the painting on your merchandise. Please note that just because a painting is ‘old’ may not mean it is in the public domain. Check when the artist died, and which law applies to his/her rights.

 
5. A painting owned privately with the artist dead with no traceable heirs. > Not sure what you mean by ‘owned privately’. Private ownership as against public ownership of the state, perhaps? This will depend on whether the copyright still subsists, and the law that applies to the artist having died without heirs (see above). It may well be that the artist’s State/government owns the rights.

Source:

http://www.copyright.gov/help/faq/faq-duration.html#duration

Question (asked on 28 July 2011 by Anonymous on this post)

Follow on on question #4. How about rights for the one who photographed the image? i.e. can I just get any Mona Lisa photo in the Net or do I need to go to the Louvre and photograph it myself? Relatedly if I get a photograph (i.e. from the 50's) and I stylized or made a B&W photo colored, would that be infringement?  

Brief answers: 

a) You need to have the right or permission to use any photo of the Mona Lisa that you want to use for your goods. 

b) If the copyright to the 1950’s photo still subsists, any modification you do to it is infringement of the owner’s exclusive right to modify and create derivative works.

Long answers with explanations:

Pretty much any photo you download on the internet will have a subsisting copyright. Many of them are available for use free of charge for non-commercial purposes.

Since you are creating work you intend to sell or earn money from, I suggest you do one or combinations of the following:

1. Use pre-existing images but comply with their owner's conditions, including obtaining licenses, probably for a fee, for use in commercial work;
2. Create your own images by taking your own photos or creating illustrations;
3. Hire a photographer or illustrator and have them assign their copyright to you; and
4. Same as #3 but instead of having them assign their copyright (for which they may charge more), ask for a license to use their images as you require (this may result in lower license fees but entitle the copyright owner to royalties from your sales as you both agree on.

As to stylizing a photo from the 1950's, assuming the copyright of that photo still subsists, then you would either be creating derivative work from the original (if the change is substantial) or modifying the original. In either case, the copyright owner has the exclusive right to create derivative works and to modify the original. You would therefore still need the owner’s permission.

If for some reason the copyright no longer subsists in the 1950’s photo, then being in the public domain, you are free to do what you like with it. However, your derivative work will only have copyright to the extent of your work, and it will not restore the copyright to the original.

Please note that there are some subtle differences in the way different countries treat derivative works, but general principles should be similar.

Source:
US Copyright Office document on registration of Derivative Works