Visual Art Plagiarism : Tips to Avoid Plagiarism & Consequences of Plagiarism
This guide will help clarify inspiration & plagiarism in the visual arts including architecture, art, & design.
Tips to Avoid Plagiarism
The Cut & Paste Kit by Lisa Winstanley provides suggestions on how to not commit visual plagiarism.
When inspired by someone else's work, ask your self:
- What is good in this work?
- What inspires you?
- How can you adapt it?
- How can you make it better?
Write a rationale:
- Give your work a title.
- Explain what it is, who the audience is, and what concepts you are using. Giving details shows your design process.
- Justify your choices! Why did you choose certain colors, materials, typeface, style?
- Be detailed in your in your write up. You statement should include descriptions such as, "I chose the color blue because it symbolizes water."
- Focus on the approaches that led to the final outcome.
- Be transparent about your inspiration!
Vanessa Quirk from ArchDaily explains basic copyright issues related to architecture.
1. CONSTRUCTING A SUBSTANTIALLY SIMILAR BUILDING WITHOUT PERMISSION MAY INFRINGE THE COPYRIGHT OWNER'S RIGHTS.
In 1990, Congress passed the Architectural Works Copyright Protection Act which explicitly provides copyright protection to original designs of architecture in virtually any form, including architectural plans, drawings and buildings themselves. This means that a builder may be liable for copyright infringement if the building itself infringes another's plans or building regardless of whether the plans themselves were copied. Therefore, builders, architects and owners should not attempt to mimic other architectural works in any form.
2. MAKING MINOR CHANGES TO PLANS DOES NOT NECESSARILY AVOID COPYRIGHT INFRINGEMENT.
Courts usually apply one of two tests to determine whether an architectural work infringes a copyright owner's original work. Under each of these tests, the court will attempt to determine whether the alleged infringing work is "substantially similar" to the copyrighted work. Under the first test, often called the "total look and feel" test or "total concept and feel" test, the works are compared in their entireties by "ordinary observers" to determine whether they are substantially similar. Therefore, minor changes that do not change the total look and feel of the work may infringe a copyright owner's rights. Under the second test, often called the "filtration" test, the court filters out the unoriginal portions of the work before examining the original/protectable portions of the work to determine whether they are substantially similar. Under these tests, simply changing standard functional features, such as windows, doors or other staple building components is no defense to a copyright infringement claim.
3. INNOCENT INFRINGEMENT IS NOT A DEFENSE TO COPYRIGHT INFRINGEMENT.
To prevail in a copyright infringement lawsuit, a copyright owner does not have to show an intent to copy or even actual copying. Instead, the copyright owner merely needs to establish that the alleged infringer had access to the copyrighted work and the alleged infringing work is substantially similar to the copyrighted work. Consequently, a builder or owner may be liable for copyright infringement even if they did not intentionally copy a protected architectural work.
4. THE LACK OF A COPYRIGHT NOTICE MAY NOT PREVENT A SUCCESSFUL SUIT FOR COPYRIGHT INFRINGEMENT.
Although many individuals believe the "©" copyright notice is necessary for copyright protection, this is generally untrue. For works published after March 1, 1989, a copyright notice is not required to assert a copyright infringement lawsuit. Therefore, builders, architects and owners should assume that all architectural works are protected under copyright law regardless of whether the author includes a copyright notice.
5. COPYRIGHT INFRINGEMENT CARRIES THE RISK OF ENHANCED DAMAGES, ATTORNEYS' FEES, AND COURT COSTS.
Under certain circumstances, the copyright owner may be entitled to receive statutory damages, attorneys' fees and court costs from an infringer. Statutory damages means that the copyright owner does not have to prove the amount of actual damages it suffered as a result of the infringement. Instead, the court may award up to $150,000.00 per infringement. In other words, a builder might be liable to a copyright owner up to $150,000.00 for each structure that infringes the copyright owner's rights. In addition to statutory damages, the court may require the infringer to pay court costs and the copyright owner's attorneys' fees.
6. ARCHITECTS AND DESIGNERS SHOULD TIMELY REGISTER THEIR COPYRIGHTS TO OBTAIN ENHANCED REMEDIES AGAINST POTENTIAL INFRINGERS.
As stated in the previous section, statutory damages and attorneys' fees may be available to copyright owners who register their copyrights in a timely fashion. To receive these enhanced remedies, the owner's copyrights must be registered before the infringement is commenced by the infringer or, in the case of published works, within three (3) months of the first publication of the architectural work. Registering a copyright with the United States Copyright Office is simple, relatively inexpensive and even can be submitted electronically. For more information regarding copyright registration procedures, please visit http://www.copyright.gov/.
7. IF YOU ARE GIVEN PLANS BY OTHERS, ENSURE THAT YOU HAVE THE RIGHT TO CONSTRUCT, COPY AND/OR MODIFY THOSE PLANS BEFORE USING THEM.
Owners often solicit designs from multiple architects or designers during the design and bid phases of the project, especially design-build projects. Some owners believe they have the right to share designs obtained through the design/bidding process with other competitive bidders. This can be problematic depending on the contractual relationship between the owner and the original designer. If the original designer retained all copyrights in the original design, an unsuspecting subsequent designer or contractor may infringe the copyrights of the original designer by refining or constructing a project that is substantially similar to the original design. Therefore, whenever an owner, construction manager or other party provides you with architectural plans, you should ensure that you have the right to construct copy and/or modify those plans before using them.
8. IF YOU ACCEPT PLANS FROM OTHERS, INSIST ON INDEMNIFICATION FOR ANY COPYRIGHT INFRINGEMENT ARISING FROM THOSE PLANS.
As described in the previous section, multiple unforeseen consequences can occur when parties share construction plans amongst each other. Therefore, if you receive construction plans from another party and are asked to construct, modify or otherwise use those plans, you should require the party providing those plans to indemnify you for any copyright infringement claims that arise therefrom. The written indemnification provision also should include indemnification for any other forms of intellectual property or unfair competition claims that may arise from your use of those plans and should include a duty to defend any related litigation in addition to the duty to indemnify.
9. THE ORIGINAL ARCHITECT OR DESIGNER REMAINS THE OWNER OF ANY COPYRIGHTS IN THE ARCHITECTURAL DESIGN, EVEN IF THE CONTRACTOR OR OWNER PAID FOR THE DESIGN.
In many construction projects, the owner, construction manager or contractor will contract with an architect or designer to design the project. Regardless of payment, if the contract does not state otherwise, the original architect or designer retains ownership of the copyrights and the purchaser merely obtains a non-exclusive license to use the plans for that particular construction project. This means that the owner and/or contractor do not necessarily have the right to use the purchased plans for any other projects and do not have the right to prevent the original designer from selling those same plans to other owners and/or contractors. Accordingly, owners and/or contractors should insist that their design contracts contain a written assignment of all copyrights and other intellectual property that the architect or designer owns in the plans to ensure that the architect or designer does not retain any intellectual property rights in the design which could create issues down the road. Alternatively, an owner or contractor should obtain written permission from the original architect or designer before reusing previously-purchased plans on other projects. If the design's uniqueness is important to the owner, it should also insist that its license be exclusive. Otherwise, an architect could resell the design to others.
10. ENSURE THAT YOUR INSURANCE COVERS COPYRIGHT INFRINGEMENT.
Many construction professionals mistakenly believe that they have insurance coverage for virtually any type of claim that may arise in a construction project. However, most commercial general liability insurance policies do not cover architectural copyright infringement. As briefly discussed in this article, copyright infringement litigation can be very expensive and potentially devastating to construction companies. Therefore, you should consult with your insurance agent to ensure that your policy covers architectural copyright infringement. In some instances, it may be covered by professional liability insurance. In other instances, you may be required to purchase additional coverage. In any event, it is better to be safe than sorry.
Fair Use in Action in the Visual Arts
Below is a selection of relevant information from the web-formatted version of the Code found by following this link.
The Code of Best Practices in Fair Use was created with and for the visual arts community. Copyright protects artworks of all kinds, audiovisual materials, photographs, and texts (among other things) against unauthorized use by others, but it is subject to a number of exceptions designed to assure space for future creativity. Of these, fair use is the most important and the most flexible. The Code describes common situations in which there is a consensus within the visual arts community about practices to which this copyright doctrine should apply and provides a practical and reliable way of applying it.
WHEN THE CODE DOES AND DOES NOT APPLY
Fair use is part of US copyright law, and the Code applies to the activities of members of the visual arts community who use copyrighted works in the US in furtherance of their professional goals. The Code applies to any copyrighted work used in the United States regardless of whether the work originated outside the United States. The Code does not apply to reproductions, distributions, performances, and other uses outside the United States, including web-based uses specifically targeted toward other countries, to which those countries’ laws may apply.
The Code is not applicable to—and is not needed for—uses of material for which permissions already have been granted to the broader public, such as through Creative Commons licenses, which provide advance permission for a range of uses. Anyone may use such works in ways authorized by the applicable license but may also invoke fair use for other kinds of uses, where appropriate.
Similarly, the Code is not a guide to—and, again, is not needed for—the use of material that is in the public domain. By definition, public domain material is not protected by copyright and may be used without regard to copyright. According to the reasoning of the decision in Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), moreover, copyright-free material also includes faithful photographic reproductions of two-dimensional artworks, which are distinct from the artworks they depict. Bridgeman, however, does not on its face apply to still photographs of three-dimensional works, such as sculpture, architecture, and performance art. Nevertheless, such photographs might be used pursuant to fair use in light of the principles and limitations set forth in the Code.
In practice, fair use can be applied only to works for which users can obtain access, including, for example, in the case of visual art, to reproductions, such as analog slides or digital images. Sometimes, however, permission must be sought simply because a “sole source” controls an art object or reproductions thereof—even where the work itself is in the public domain. Because demands for permission fees in this context are not based on copyright, fair use cannot be invoked to avoid paying such fees.
Fair use and, therefore, the Code, also do not apply to the extent that a license agreement or other contract controls reproduction or other use. Thus, for example, archives must abide by restrictions imposed by donors, and museums must comply with provisions for rights clearance in distribution contracts that supersede fair use. Sometimes such terms may be found in the “fine print” of agreements that may otherwise be noncontroversial.
THE CODE OF BEST PRACTICES: SITUATIONS, PRINCIPLES, AND LIMITATIONS
ONE: ANALYTIC WRITING
DESCRIPTION: Analytic writing focuses attention on artists, artworks, and movements; it includes analyses of art within larger cultural, political, and theoretical contexts. Such writing routinely includes reproductions, in full or in part, of relevant artworks in all media, texts, historical images, digital phenomena, and other visual culture.
- The writer’s use of the work, whether in part or in whole, should be justified by the analytic objective, and the user should be prepared to articulate that justification.
- The writer’s analytic objective should predominate over that of merely representing the work or works used.
- The amount and kind of material used and (where images are concerned) the size and resolution of the published reproduction should not exceed that appropriate to the analytic objective.
- Justifications for use and the amount used should be considered especially carefully in connection with digital-format reproductions of born-digital works, where there is a heightened risk that reproductions may function as substitutes for the originals.
- Reproductions of works should represent the original works as accurately as can be achieved under the circumstances.
- The writing should provide attribution of the original work as is customary in the field, to the extent possible.
TWO: TEACHING ABOUT ART
DESCRIPTION: Teaching about art in studio and classroom settings, whether in academia or elsewhere, has historically been achieved using reproductions of artwork as illustrations.
- The works selected should further the teacher’s substantive pedagogical objectives.
- The teacher’s pedagogical objective should predominate over that of merely representing the work or works used.
- Student access to course management sites where such works are made available should be restricted to those enrolled in the course or otherwise designated by the teacher.
- Images made available to students should, to the extent possible, accurately represent the works they depict.
- If providing downloadable images online is justified by the teacher’s objectives, those images should be suitable in size for satisfactory full-screen projection or display on a personal computer or mobile device, but generally not larger.
- When displayed, images should be accompanied by attribution of the original work as is customary in the field, to the extent possible.
- Images and other items in a reference collection should be augmented with appropriate and reasonably available metadata.
- Access to an institutional reference collection should be limited to persons affiliated with the institution and its partner institutions, such as students, faculty, and authorized researchers, subject to a requirement that items in the collection should be used only for legitimate purposes.
THREE: MAKING ART
DESCRIPTION: For centuries, artists have incorporated the work of others as part of their creative practice. Today, many artists occasionally or routinely reference and incorporate artworks and other cultural productions in their own creations. Such quotation is part of the construction of new culture, which necessarily builds on existing culture. It often provides a new interpretation of existing works, and may (or may not) be deliberately confrontational. Increasingly, artists employ digital tools to incorporate existing (including digital) works into their own, making uses that range from pastiche and collage (remix), to the creation of new soundscapes and lightscapes.
- Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard.
- The use of a preexisting work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.
- Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work.
- When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.
Consequences of Plagiarism
Academic Work Consequences:
Visual plagiarism is in violation of the Oklahoma State University Academic Integrity Policy.
"Plagiarism: Presenting the written, published or creative work of another as the student’s own work. Whenever the student uses wording, arguments, data, design, etc., belonging to someone else in a paper, report, oral presentation, or other assignment, the student must make this fact explicitly clear by correctly citing the appropriate references or sources. The student must fully indicate the extent to which any part or parts of the project are attributed to others. The student must also provide citations for paraphrased materials."
There are four possible levels of sanctions for students deemed to have violated the Academic Integrity Policy ranging from official admonition to “Administrative Withdrawal for Academic Integrity Violation” and dismissal from the graduate or professional program and dismissal from the university.
Professional Consequences: Copyright Infringement & Law
17 U.S. Code § 503
As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.
17 U.S. Code § 504
Actual damages & profits – monetary
Statutory Damages – sums no less than $750 or more than $30,0000. Not more than $150,000
Additional Damages – two times the license fee for time of the proceeding and up to three years.
17 U.S. Code § 505
Costs & attorney fees paid to the plaintiff