handprint : signing, documenting and copyright

signing, documenting and copyright

The last step an artist usually takes before matting and framing a painting is signing it.

Artists often have surprisingly inaccurate ideas of what signing or not signing a work means. The most common beliefs are that a signature on a visual work of art serves as a design element in the visible image, as a documenting reference anywhere on the support, or as a tool to create and assert authorship rights or copyright.

The signature as a design element in the visual work itself depends on the type of work, the style and location of the signature, and the taste of the audience the work is intended for: we'll come back to this topic after clearing up the other two roles a signature is believed to fill.

The surest way to document your work is to photograph and catalog it. These are independent and mutually reinforcing techniques.

Many professional artists photograph the finished work: the photograph is useful both to document the painting, and as submission material to an art exhibition or art gallery. For works selling at around $5,000 or more, most galleries will also photograph the works in order to send these photos to prospective buyers; if they don't, you will probably have to furnish them with copies of your original photos.

The most widely accepted photographic format is the transparency or 35mm slide (the larger format, 4" x 6" film transparency is also used to document expensive and high quality works). The 35mm slide is typically how an artist enters a work into juried exhibitions, and a plastic sheet of slides (with an artist's resume and statement of purpose) is the usual way to submit works for consideration to a gallery.

The transparency should always be labeled with (1) the artist's full name, (2) the correct title of the work, (3) date of composition, (4) type of media, (5) type of support, and (6) dimensions (height followed by width, either in centimeters or inches):

Lindsay Buckworth
"Prize Duck Flying South" (1996)
Watercolor and pencil on paper, 22"x30"

Put this label on the correct side and in the correct orientation so that the transparency image appears correctly oriented when the label is legible by eye. (This is different from the correct orientation when inserted in a slide projector tray.) There is now no confusion about whether your finely painted prize duck is flying north or south (or upside down). For slides in paper frames, you can write in ink directly on the slide; large format transparencies should be inserted in protective plastic folders with label affixed.

As we move increasingly toward digital communications, an electronic image (in the form of a digital file, usually in the widely recognized JPEG or .jpg format) is extremely useful to send the image by email to prospective buyers, juries or dealers, and to post the image on art gallery or artist web sites. You can create this image directly, with a digital camera, or from a transparency or slide (most photographic services now have the capability to do digital transfers). Image quality increases with file size (in bytes), but larger files are cumbersome to transfer on slow internet connections and to view on small computer screens. Minimize as much as possible.

The photograph itself should be made before the picture is mounted or framed, but after the deckles or edges are trimmed or squared. The painting should not be cropped by the photograph: all four sides should be just inside the edges of the picture. The photograph is fundamentally a record of the original physical state of the work. If someone lops two inches off the top of one of your paintings, you may want to prove the act by showing the original edge.

The photograph is also a presentation of the quality and color scheme of your work, so it's important to get the lighting, focus and angle of the picture just right. Unless you are a professional photographer, you should get the help of a professional photographer. Ask for a reference to a photographer from your local art store. This person should come to your home or studio, look at several examples of your work, then show you how to set up the photograph, recommend the most appropriate camera, film and lighting, and take pictures of your works for future reference.

General guidelines are not useful, because the best procedures for creating a photographic reproduction depend on the paint media, size, color balance, value range, reflectivity, and type of visual details in your work. When you consider that the quality of this photograph may determine whether or not you are accepted into an exhibition, represented by a gallery or acquired by a collector, it is possibly imprudent to try to muddle through on your own. Get a pro to show you how.

It's extremely useful to catalog the finished work, and there are two ways to do this. You can keep a journal or record book of your creations, inventorying and describing each finished piece, or you can simply document the painting by signing it on the front or back.

Either method, like the photograph, can establish your authorship of the work, but the dated signature makes it easier for collectors and curators to authenticate your work on the fly. Many professional artists sign and date their paintings lightly in pencil on the front, which makes the signature invisible unless looked for, and legible when found; some artists sign their works on the back; and some artists sign by painting their signature in the image, making it a design element in the composition.

Design considerations aside, the only advantage to signing on the front rather than the back is that the painting can be confirmed without removing it from the frame, mount or backing. This is usually an annoyance for galleries rather than artists, and rarely becomes a problem that affects the transfer or sale of the work. It's a rarely observed courtesy to make your signature legible to someone who does not know of your work personally.

The journal is always useful to compile, and occasionally essential. You may get requests from collectors or galleries to confirm authorship, or insurance claim inquiries, regarding works you did many months or years ago. A catalog or journal is the most effective way to address these requests. It's also gratifying to have the journal as a record of your artistic progress. Some artists include in this catalog information about the date, size (format), type of paper, type of media, and a brief description of the image ("prize duck flying south").

It's a great convenience to date the work, and some artists also (or alternately) assign a code number of some kind: most common are the six digit date (February 3, 2001 becomes 02.03.01), the number of the work within the year (the fifteenth painting in 2001 becomes 15.2001), the number of the work in your life output (your five hundredth painting becomes 500), and so on. It's useful to keep track of these works in a separate journal, for example to document the existence of a painting that may be lost through theft or fire. If you make photographs of the work, then this numbering should also be recorded in the label on the transparency or slide.

We're left with the issue of copyright. Nothing can replace informing yourself about the intricacies of copyright law. There are excellent general copyright resources available at the Stanford University and Yale University web sites, and a resource specific to visual arts at the Franklin Law Center. These link to many other resources.

All that follows is informed lay interpretation of this information, with the caveat that copyright law is fluid at the boundaries, varies somewhat by jurisdiction and type of work, and always depends on the details of any specific case. Always obtain professional legal advice on matters of particular concern to you; if you are a professional artist, it's worthwhile to obtain this advice as part of your professional training. And it's easier to learn the law in consultation than in court, as Jeff Koons has found out.

For most created works there are actually two different and distinct types of rights in play: authorship rights and copyright.

Both types of rights are created as soon as an original artistic effort has been started in a tangible medium — whether paper, clay, sand or a computer file. If proof that you created the work is required, then your method of documenting the work is usually sufficient proof.

The term original is a helpful point to distinguish between authorship and copyright: you do not hold the copyright to a work that you have made based on another copyrighted work. If you make an original painted copy of a work by a living painter, you can claim authorship of your painting, but you cannot publicly display or sell the work without the permission of the artist who painted the painting you copied. This applies to paintings of photographs, photographs of paintings, sculptures of photographs, and so on. You are the author, but you don't have the copyright.

You also do not hold copyright if you create a work for hire, as part of your employment by a company, such as a gallery or publisher, who will control the rights for commercial purposes.

Those exceptions understood, then creating a work in itself establishes authorship rights and copyright to the work: "a work protected under this title vests initially in the author or authors of the work" (US Copyright Code, Sec.201a). Importantly, the work does not have to be signed, and if signed the signature does not have to be visible, and visible or not there does not have to be a copyright notice. It's exactly like becoming a parent: giving birth immediately creates your rights.

If you authored the work, then whether or not you hold or have subsequently sold or transferred the copyrights to that work, you always retain some core authorship rights: to claim (and be credited for) authorship of the work; to object when the work is presented or reproduced with a "distortion, mutilation, or other modification of the work which would be prejudicial to [your] honor or reputation" (US Copyright Code, Sec.106A.a.2); and to prevent destruction of "a work of recognized stature" without your permission. (Your rights regarding works of art, such as murals, that are installed as part of the physical structure of a building are somewhat more complex and limited.) You can also require someone to remove your name as the author of a work when you have not in fact created it.

These authorship rights endure for the length of your life. If you jointly authored (created) the work with others, you jointly share authorship rights with them, and these rights expire when the last of you dies. These rights may be waived or repudiated, but they can never be transferred.

Copyrights extend to every unique created work in a tangible medium (whether completed or incomplete, and whether signed or unsigned); to variants of a single work (for example, similar designs made with different colored inks) whether signed or unsigned, and to identical designs or works that are reproduced in a consecutively numbered series up to 200 exemplars or copies and that bear the number and signature of the artist on each copy (one of the very few situations where the signature does matter).

Copyright gives you the right to publicly display the work; to make reproductions or copies of the work; to make derivative versions (for example, computer enhanced giclée prints) of the work; and to loan, license or sell the work. For visual works of art, the artist is granted these rights for as long as he or she lives, and for 70 years after the artist's death (rights that can therefore be asserted by the artist's estate).

All these rights can be transferred, licensed or sold, and once this transfer is legally completed the work is no longer under the artist's control. Sale of an artwork work may transfer some or all of these rights to the buyer, depending on the contract. The artist cannot sell his or her authorship rights: artists always retain the right to object to the mutilation, distortion or destruction of their works.

There are certain other limitations to copyright. You cannot prevent the reproduction of your work by the new owner or his agents, or in news reports; and it is difficult to prohibit reproduction for specific kinds of educational or noncommercial public service reasons (these fall under the domain of fair use).

If the artwork is actually a utilitarian object or machine that has primarily functional rather than esthetic value, then you may not be able to control its sale or reproduction — that is in the area of patent or trademark rights. And copyright gives you no right to the proceeds of future transfer or sale of the work as an art object; nor to prohibit the artwork's display in the home, place of work or business establishment of the owner or his agents; nor to require its display in any situation, including a gallery or museum exhibition of your works. You can create these rights through specific clauses in a contract of sale with the prospective buyer, but that is between you and the buyer: it's not part of copyright per se.

In the age of the internet, remember that posting an electronic image on the internet simply creates the right for other people to view the image: it explicitly does not infringe in any way on your copyright to the work. Nor does it imply permission to ignore your copyright. You cannot blunder away or unintentionally lose your copyright, short of signing a very bad contract.

For that reason, signing artworks has no effect on the artist's copyright. A work does not have to be dated or signed; no copyright symbol (©) is required; and it makes no difference whether the signature is on the front or back of the work. You as the artist still retain complete copyright control over your work.

Copyright contol is separate from punitive damages, and the force of a signature and copyright statement is simply that it makes it somewhat easier for your lawyer to win a money settlement from individuals who used your copyrighted work without your permission.

For the deterrent to be effective, of course, you must hire a lawyer and the lawyer must get busy: he or she must write a letter to the infringing party explaining your complaint; the party must respond or not in a way that you and your lawyer agree is unacceptable; your lawyer must then locate the party and take them to court or arbitration; your lawyer must argue and win your case; you must get a money judgment from the court against the infringing party — and finally you and your lawyer must be able to actually get your money (for example, even after the infringing party declares bankruptcy and puts you in line with all the other claimants to their measly checking account).

How much money you get out of this — including any recovery of the infringing party's profits, punitive or statutory damages, and your legal fees — is often at the discretion of the court: it is generally not stipulated by copyright law. And whether or not you actually get the money, you will still have to pay your lawyer for time, travel and incidental expenses.

In all this the visible signature only acts to eliminate the infringing party's possible defense that they didn't know the work was copyrighted, or didn't know that you were unhappy they used your work without your permission; this in turn affects primarily your ability to recover retroactive monetary damages from them (past profits, for example). But your lawyer has already informed them of these facts by the time he or she has sent the infringing party your letter of complaint. So as soon as that letter goes in the mail, and for all actions and profits from that moment forward, you are in the same legal position whether the work is signed or not.

So we conclude with the artist's signature being either a design element in the visible image or a documenting reference anywhere on the support.

Everyone reacts slightly differently to the design elements in a work of art. To me, a visible signature can add a sense of accent and character to a work, conveying a sense of craftsmanship, integrity, and respect for the object. Like a tasteful wedding band, it can confirm a spiritual bond rather than make a status statement.

When I see a painting with a fussy signature, copyright mark and watercolor society brand ("AWS") intrusively visible, I immediately feel several gut reactions: that I'm dealing with an artist who is ignorant of copyright law; who is fascinated by the appearance of his or her own signature; who wants to assert the possession of an artistic reputation (and thereby confirms that their reputation is too modest to be recognized by any informed art dealer); or who wants to assert through the signature that their work is a collectible quality objet d'art, (apparently because that is not evident from the quality and beauty of the work itself).

In short, when I see this kind of artist's signature, I don't think NY MOMA, or Mary Boone, or the D.C. Moore Gallery: I think Franklin Mint.


Last revised 11.12.2007 • © 2007 Bruce MacEvoy