Use of artists image
An artist, a photographer, sells a photograph privately to a buyer. The buyer then reproduces the photograph as a poster and sells them on the street. The original artist has no idea and has not given the right to reproduce and sell his image.
Another scenario; an artist makes a sculpture, this is then bought by an art institution with no terms of sale and becomes part of their collection. The institution then photographs the sculpture and makes merchandise out of it in the form of a post card which it sells in it's gift shop. Again the original artist has no idea and has not given the right to reproduce and sell his image.
What are the rights of the artist? Is this copyright infringement?
Hi there. Both issues you mention raise copyright issues. Copyright refers to legal rights in original ideas or works that are protected in Australia under the Copyright Act 1968 (Cth). Generally these rights give the author exclusive rights to licence others in regard to copying the original work, broadcasting it, publishing it, etc. Depending on the nature of the work, copyright generally lasts for 70 years from the author’s death. Legal action can be taken against a person who infringes someone’s copyright, although these can be difficult claims to make.
In both of the scenarios you described, it appears that the artists’ copyright may have been infringed. With respect to the photograph, the photographer has copyright in the original photograph that will be protected under Australian law. Whether the photographer can take legal action against the private buyer will depend on the original terms of sale. You have said that the photographer did not agree to the reproduction of his image, which means he most likely did not assign his copyright to the buyer. The reproduction of the image on posters is likely to be an infringement of copyright.
A similar situation exists with respect to the sculpture. The artist did not agree to assign or licence his copyright in the sculpture. Because the merchandise has been derived from the original sculpture, the artist is likely to have a legal claim against the art gallery for copyright infringement.
Suggested way forward
Based on the information you provided, the two artists may have a right to commence legal action. Speaking to lawyer will help you understand the exact nature of these claims and what steps can be taken to stop the infringing conduct and protect the artists’ rights. By pressing the "Take Action" button through LawAdvisor - which opens soon - we can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.