Q: Is it legal to copy and sell the artwork of children without their permission? I volunteer for an elementary school art program in which the children's artwork is photographed, reproduced and made into greeting cards, which are then sold to benefit the non-profit program. The children are not told that some of their work will be reproduced in order not to hurt the feelings of those whose work is not chosen. Is this legal? The children are given a permission letter to take home for their parents to sign at the start of the program but I have not seen it.

Q. I used to teach art to children many years ago. I have a collection of children’s artwork (drawings and paintings) from those classes. I’m also a printmaker, and now I’d like to make prints of some of the children’s artwork. I particularly want to use these images because of the qualities of innocence and spontaneity of children’s work, which doesn’t exist in artwork by adults. Is there a legal risk if I use the images without contacting the (now grown adult) people who made them? I don’t have any way to identify the persons who did these images so long ago. Most of the images have only the first names of the children, if anything, on the backs.

Q. Can you please tell me how copyright/royalties work when children provide comments and/or illustrations? For example, I have a book about birthdays in which children have submitted humorous comments about "old people" along with their drawings. I have a similar concept in mind, and wonder how those submitting would be compensated and otherwise credited for their submissions.

A. Copyright law protects creative works, including artwork and literary works, made by children. While the children are still minors, you need to seek their parents’ (or legal guardian’s) permission in order to reproduce their art or comments, or use the images in your own art (the latter is called making a “derivative work” in copyright parlance).

Therefore, the elementary school permission slip that the parents sign should include permission for their child’s artwork to be reproduced on the cards. While it may bother you from an ethical standpoint, there’s no legal requirement that the children be told about this arrangement — that’s for the parents to decide.

Legally, the former teacher also needs permission from the now-grown adults who created the art in her classes as children. When the children created the images, they also became copyright owners of those images. Copyright lasts for life plus 70 years. There is no law that allows you to use a copyrighted work even though, as a practical matter, you cannot get that permission because you don’t know who the copyright owner is. So to be absolutely safe under copyright law, you should not reproduce the children’s artwork. As an alternative, you can commission new artwork from children now, and get their parents’ permission to use it.

 

 

Or you can try to create your own child-like artwork to emulate the qualities of the children’s art. If you create your own artwork, be careful to emulate only the general feeling or style of the images, rather than making “substantially similar” copies. (“Substantially similar” is the standard for copyright infringement. It means that an ordinary observer, when viewing both images, would recognize the new one as a copy of the original. This requires a visual comparison, so it can’t be established with words. However, as a general description, to avoid creating images that are “substantially similar,” the former teacher should try to draw different subjects in the same style as the children’s art, e.g., a fire engine instead of a race car.)

Alternatively, you can decide to take the risk of going ahead and using the old children’s artwork in your prints without permission. The risk would be that the former child artists see their new artwork, recognizes their own images, and makes a claim of infringement. While this is not impossible, it seems remote. However, if the prints were successful (i.e., they are shown in galleries or museums, acclaimed by critics, sold for large amounts), the potential risk would increase. First, success would mean that the prints might become more visible, which increases the risk that the adults would see them and perhaps recognize their childhood artwork. Second, the more your prints are sold for, the more profits you’ve made from the work. A copyright owner is entitled to recover your profits from an infringement. Thus, they might be more motivated to sue if it appears there’s a chance of collecting significant monetary damages.

Finally, with respect to the third question, there are no laws, which govern how you should compensate authors who contribute copyrightable matter (which includes the children's comments and artwork) to your project. As part of granting permission, the children’s parents can tell you how they want their child to be credited, or you can suggest your standard accreditation form in the permission form you provide to them. But again, there are no laws requiring accreditation. How you give credit, and how much you pay for using the copyrighted material, are negotiable terms to be worked out in exchange for permission to use the material.