Pharr, TX asked in Intellectual Property and Copyright for Texas

Q: What is the legality involved in representing a copyrighted piece of visual art in a literary work?

Say I was writing a fiction novel and wanted to overtly reference a distinct piece of visual art created by a real, living artist. Could describing it in detail in a literary work infringe on copyright? Specifically if I changed the context of the art, in this instance had the piece created by a fictional character

1 Lawyer Answer
Barbara Berschler
Barbara Berschler
  • Intellectual Property Lawyer
  • Rockville, MD

A: You pose an interesting question, not easily answered based on what you have described. However, there is a concept in copyright law called "moral rights." Some countries, like France, take a broad view of the concept. In the US, moral rights are addressed in Section 17 U.S.C. 106A. They are reserved for the author/artist of the visual art work. I suggest that although you will not be copying the work of art in the book, but describing it, if it is as recognizable as it appears, the living artist may take issue if the work is not correctly attributed. Best to consult with a copyright attorney familiar with visual art issues and moral rights.

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