Digital Art and Intellectual Property Protections
This article discusses the intellectual property protections for digital art works created by artists with the use of digital technology.
In today’s world we encounter digital works of art on a daily basis almost everywhere we look, and businesses and institutions use them on a regular basis as part of their advertisements, marketing campaigns and branding or to raise awareness. Moreover, in the context of television, film-producers also use digital or computer-based art to produce visual effects. But probably the most widely known form of digital artwork is graphic design.
While digital art is a powerful tool for many organizations to use, both the artists and creators behind these digital works of art and the users of such art should understand the intellectual property rights and protections that come with the digital art works.
The article discusses how to protect art in digital form and first addresses the concept of digital art and the types of digital and computer-based art and subsequently examines various U.S. intellectual property protection laws.
Digital and computer-generated art also known as new media art is an artistic work, performances or practices that use digital technology as part of the creative or presentation process.
Digital art is created by a digital artist, which is a term used to describe an artist who uses digital and computer technologies in the production of art including in activities such as drawing, painting, sculpture, sound art, digital installation art and virtual reality.
There are many types of digital art and the most popular ones include 2D and 3D computer graphics, 3D digital painting, digital photography, computer-generated animated paintings, computer-generated performances, pixel art, graphic design, digital writing and digital installations.
U.S. copyright law can protect the economic rights for digitally created art by protecting the copy and distribution of copyrighted digital art on the internet or in the physical space. Digital artists, however, find value in having their work shared and distributed across platforms because it raises their public profile and value, including their brand and reputation as artists which translates into their economic value and ability to monetize their digital artwork.
As a result, digital artists are less concerned with copyright protections from copying and distributing their digital artwork but more concerned with acknowledgement of their authorship.
In other words, digital artists as creators of digital art want to receive credit for their work from individuals, businesses, organizations and institutions using their artistic work to increase their public profile and do not want to see their artwork being attributed to someone other than the original creator.
To promote the proper attribution of the artwork, the U.S. has enacted the Visual Artists Rights Act of 1990 (VARA) which is the first federal copyright law that grants protection to the ‘moral’ rights of artists.
The moral rights of artists refer to an artist’s right to create a work, display it however he or she desires and demand that the work gets attributed to him or her. These moral rights belong to the author or creator of the work and are not transferable.
However, the rights created under copyright law are distinct in the sense that they create a transferable economic interest in the original work that continues beyond the life of the creator; in other words, the creator has an economic interest in the original work that he or she can freely transfer to other individuals or legal entities and the economic interest passes on beyond his or her life.
However, VARA is limited in the context of digital art works because it excludes from the definition of visual art many digital works, and as a result excludes digital art from the right of the artists to have their digital works attributed to themselves. But the Copyright Act or the Lanham Act are also limited for digital artists and the current laws provide minimal protections for the digital art and its creator.
As we continue to use digital art in our everyday life, and use images for our websites, catalogues, advertisements, social media platforms for public dissemination, we need to also credit the work we use to the artist and creator or use a free version and avoid falsely attributing the work to ourselves or another person aside from the original creator. Recognizing digital art as art and crediting the digital artwork to the artists is important for the integrity of the art and the artists.
How can Malescu Law assist?
Our US-licensed business attorneys in Miami, Florida USA can assist with registering copyrights with the U.S. Copyright Office and trademarks with the U.S. Patent and Trademark Office (USPTO) and advise on the necessary and recommended registrations to ensure the maximum protection and monetization for your work, including visual works and digital art.
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