QLD Contractor Creating Art from Kids' Artwork - Intellectual Property Law Rights?

[Akos Juhasz]

I'm a contractor as a professional qualified artist at a company who organises art workshops for kindergarten aged kids. The company presents fine art works created from the kids' splashes, brush strokes, fingerprints, etc. Parents pay for the abstract designs that they receive absolutely tailored to their requests (colours, preferred art styles, etc.).

I create those fine art works that are dramatically different to the kids' material but made of it. It is like cooking with the ingredients that you get presented. I put and edit the finger paintings together (that are on many pages separately) to my professional artistic liking (cut them, edit them, scale them, rotate them, shape them, work with them). I need to create colours, shapes, very often I need to draw some bits and pieces to make the image work. The end result is a professional contemporary art work I take pride on and as such it could be only done by a professional artist.

Sometimes these images are quite modern, sometimes more post impressionist, or quite abstract, or really clean and organised, or figurative. The company then sells these images not just to parents but to the public as well. They have a big library of these paintings that people can choose from. Also, these paintings get sold on auctions. The kids, workshop holders, and the company receives profit/commission after each sale. Only I do not. I don't think that this was fair. Though I am the one who created the art work. I would like to know my intellectual property law rights please.

My name never gets mentioned either though the company advertises itself with my artworks and I create their best selling works since I've been working for them. I am not employed by them, I did not sign any employent contract. I would never give up on my art copyright as I am a true artist with master degree.

I would like fair treatment. I only receive 25 AUD for three to eight artworks for one kid. This is labour and abuse. Not fair on me at all.

Thanks

 

[Sophea]

I can see two issues here:

1. Whether you own the copyright, or the company you contact to owns it because they commissioned the works

Generally speaking the person who translates an idea into expression (you) owns copyright, however copyright in works created in the course of employment generally remain with the employer. Obviously you are a contractor, not an employee and there would ben argument that you retain copyright in these artworks however I can say 100%.

2. Whether you are breaching copyright by using fragments of other works of art

As far as I can tell your works are derivative works as they appropriate other original works. This requires the permission of the owners of the original works - i.e. the kids.

 

[Kim Walters]

You have said that you are the creator of the art work although you use the hard materials of others.

As the creator of a new work, you own the copyright in the new work as copyright is founded on a person’s creative skill and labour.

To attract copyright protection, a work must be ‘original’ in the sense that it originates from the creator and is not copied from another person’s work.

If these are derivative works, that is, based upon one or more pre-existing works (e.g. such as art reproduction), then the important question is whether what is taken amounts to a substantial part of the original work.

If there is a new work which has required original skill and effort to complete, then a new copyright subsists in it which belongs to the person who made it.

There is no derivative copying, if your work does not reproduce a substantial part of the original work, so that it can be said to form no part of the original expression of the work.

Creators also have the moral right to be attributed for their works, that is, to be name as the creator of their work and the right not to have the work falsely attributed, that is, the right not to have a person falsely assert or imply they are the creator of the work.

The question can be complex, however, if there is copyright in the original work, plus copyright in the new works, because the owner of the copyright in the new work may be subject to the rights of the copyright owner in respect of the old work.

 

[Akos Juhasz]

I can see two issues here:

1. Whether you own the copyright, or the company you contact to owns it because they commissioned the works

Generally speaking the person who translates an idea into expression (you) owns copyright, however copyright in works created in the course of employment generally remain with the employer. Obviously you are a contractor, not an employee and there would ben argument that you retain copyright in these artworks however I can say 100%.

2. Whether you are breaching copyright by using fragments of other works of art

As far as I can tell your works are derivative works as they appropriate other original works. This requires the permission of the owners of the original works - i.e. the kids.

I appreciate your informative reply. Thank you very much.

 

[Akos Juhasz]

You have said that you are the creator of the art work although you use the hard materials of others.

As the creator of a new work, you own the copyright in the new work as copyright is founded on a person’s creative skill and labour.

To attract copyright protection, a work must be ‘original’ in the sense that it originates from the creator and is not copied from another person’s work.

If these are derivative works, that is, based upon one or more pre-existing works (e.g. such as art reproduction), then the important question is whether what is taken amounts to a substantial part of the original work.

If there is a new work which has required original skill and effort to complete, then a new copyright subsists in it which belongs to the person who made it.

There is no derivative copying, if your work does not reproduce a substantial part of the original work, so that it can be said to form no part of the original expression of the work.

Creators also have the moral right to be attributed for their works, that is, to be name as the creator of their work and the right not to have the work falsely attributed, that is, the right not to have a person falsely assert or imply they are the creator of the work.

The question can be complex, however, if there is copyright in the original work, plus copyright in the new works, because the owner of the copyright in the new work may be subject to the rights of the copyright owner in respect of the old work.

Thank you so much for your invaluable insight into the matter. I highly appreciate your answer. It actually confirmed what I was thinking and so much more. Great help.