For each text in the rechtReeKs series, the Arts Union chooses an appropriate image created by one of its member artists that has no relation to the issues in the article.
This time: Mirjam Kuitenbrouwer, binders and laptop, 2021_ 21x26_4cm -
With this column, I hope to offer you a legal boost. The realization that society, the legislature, has made rules that recognize the creators of art.
Last time I discussed the difference between copyright transfer and license. I wrote that after a transfer you lose your copyright and that it is therefore often better to agree on a license. Here you give someone permission to use your work under the conditions you set. For example, for a certain period of time, in a certain place and for a certain fee.
This time I will go into more detail about permission to use. Also called a license or right to use.
Whatever the agreement, it is always possible that your work may be used in ways other than those you intended with your permission. A sample of what is allowed?
- You have agreed to place a photo of your work with a magazine article, and it is also used on the cover;
- Your work is part of an exhibition in a museum, and an image of it is prominently displayed on the advertising poster for the exhibition;
- You sell a painting to a company, and a reproduction of it is used to celebrate the launch of a new product.
And yes, using your work as a figurehead for the exhibition you are participating in also requires specific permission
In all of these situations, copyright law comes to your rescue with a special rule designed to protect you as the creator: in dubio pro auctore. In other words, when in doubt, the advantage is for the creator. Specifically, when there is ambiguity about the content of a license agreement, it is interpreted in favor of the creator.
But that's fine! So if you have agreed to use your photo with an article, it may not be used elsewhere in that magazine. The agreement doesn't go that far. And yes, using your work as a figurehead for the exhibition you are participating in also requires specific permission. After all, there is a difference between participating in an exhibition and promoting it. The same applies to using a reproduction of your painting. This too is not allowed without additional permission.
Explanation in favor of the creator applies to all types of agreements. For oral agreements, but also for comprehensive agreements on paper. And even if nothing about copyright is agreed upon, this principle can apply.
Explanation in favor of the creator applies to all types of agreements
When you are asked to use a photograph of your work with an article, that is the specific use to which your permission relates. So that is the scope of the license. If you participate in an exhibition, that includes allowing the museum to show your work to its visitors. After all, that's the whole point of it. Although implied, this too is a form of permission to use, and thus a license. As mentioned, this does not include advertising. Associated with the sale of a painting is the fact that the buyer will want to hang it in his home or office. The permission for this use comes with the artwork, unless you agree otherwise.
All in all, you can assume that uses that do not reasonably follow from the agreement (and the agreed remuneration), or that you as creator should not have expected, are in principle not covered by the permission you have given. Whether that permission was given explicitly or not.
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