While I’m Talking About Public Domain…

Never underestimate the value of the U.S. government when it comes to surreal and absurd images, many of which are in the public domain.

I mean it.  And, if you’re easily offended or the subject of VD bothers you, avert your eyes.

1940s poster from the U.S. government (Artist, "Christian")Seriously, this poster (at right) appears to be in the public domain.  (See notes at the U.S. National Library of Medicine.) You can download a 4MB copy of it at the gov’t website.

I can see so many very wrong uses for that image.  I’d like to put it on a tee shirt, except that I want to replace the VD words with… something else.  I’m not sure what, yet.

I look at her and think, “Really? I mean really? Is that what men found alluring in the 1940s?”

However, that’s not the only image of its kind. A search at the gov’t website using the phrase “venereal disease” turns up all kinds of strange posters of apparently dangerous women.

She may look clean...Check out the sweet girl in the poster on the left.  (Click on the image for the full, print-quality image at the NLM.)

Wasn’t she a famous movie star?  She looks really familiar… like someone I’ve seen in old movies.  Well, now we know about her history! *LOL*

I’m amused by the phrase “‘good time’ girls.”  It makes me wonder, were there “bad time” girls?

That poster is in the public domain.

1944 - beware waterThe next poster for your consideration (or amusement) is about clean water.  Gosh, it looks like our boys were dealing with all kinds of dangers in the 1940s… wasn’t war enough?

Because that was produced specifically for government use, I’m pretty sure it’s in the public domain.

Click the image to see a really large copy of it.  There may be even bigger versions in the NLM files.

(Of course, if you’re going to use it for a product, it’s smart to research the provenance at the NLM website.)

And, so it’s not all one-step-away-from-zombies, at left is an early poster that has a lot of possibilities if you’d like to alter it for a political statement.

This one is from 1917, so it’s almost certainly in the public domain.  (Most — but not all — American works from before 1923 are now in the public domain.)

If you have questions about copyright law and what’s in the public domain, one of my favorite resources is Cornell’s chart about copyright terms and limits.

If you’re really concerned about the details of copyright law and art, the following book is one of the most complete (and recent) to address this complex subject.

Copyright and Free, Royalty-Free Resources… again!

emu photo
Image courtesy of FreeImages.com

Many people — perhaps most people online today — don’t know how copyright laws work.

I know no one who deliberately breaks copyright laws.

But yes… some people believe that anything online is okay to borrow, at least for personal or one-time use.

After all, everyone else is doing that, so it must be legal… right?

Umm, no. Really. No.

I’M NOT A LAWYER

I’m not an attorney.  My interpretations of the law are my own opinions, not legal advice.

Also, even judges don’t seem to agree on copyright law.  How harshly you’re treated, if caught, can vary from one courtroom to the next.

WHY I CARE

I’m an artist.  Since the mid-1990s, when I created my first website — gosh, was that really over 20 years ago? — my own images have been stolen.

The tragedy is, I usually give permission when someone asks, first.  I was thrilled when one of my original photos was used for a record album cover. But, the band asked permission.

I go directly to the webmaster when I find someone using one of my illustrations illegally.  Most people quickly (and apologetically) remove the image from their websites.

However, a few balk.  They insist they bought the image from someone else, as part of a package, so they think the image is in the public domain now.

Or they found the image at Flickr.  Or something.

That’s when I contact the person’s website hosting service. Usually, the hosting service shuts down every website that person has.  They’re banned.

Nobody’s happy, and it didn’t have to conclude that way.

I’ve written several popular articles about copyright, the “three stroke” myth, and how copyright law affects artists.  Some of that information may apply to you.  My original article is at http://aisling.net/copyright-and-the-three-stroke-rule/ , along with several other copyright-related articles.

I also teach artists, including photographers, how to protect their images so they can prove they’re the original creators of the respective works.

It’s a simple technique: I remove about 1/2 inch on at least two sides of the original image, before I post it online.  When the hosting service asks me to prove it’s my original graphic, I can show them the larger version that has never appeared online. So far, that’s always worked.

Others use techniques such as digital watermarking: http://www.digitalwatermarkingalliance.org/default.asp

WHY YOU SHOULD CARE

Maybe you shrug off copyright laws.  If you don’t know anyone who’s been caught “borrowing” images, and you haven’t felt the anguish of seeing your own work stolen, maybe it’s no big deal.

However, if you’re breaking the law, it’s only a matter of time until you’re caught.

Today, software can identify images being used illegally online.  Art museums use this technology to protect their images, online.

Just like Google Image Search, the specialized software recognizes distinctive elements in original graphics and scours the Internet looking for any matches.

Once you’re caught by someone who has deep pockets or an attorney with whiplash mentality… heaven help you.

You’re playing a dangerous game if you’re using photos or artwork without permission.

USE LEGAL IMAGES INSTEAD

There is no reason to use illegal images in any product, including website design.

There are many great, public domain images online.  Pre-1923 images are generally (but not always) safe to use.  You can find them online; Wikipedia often features gorgeous public domain images by famous artists such as John William Waterhouse.  http://en.wikipedia.org/wiki/John_William_Waterhouse

Many (but not all) works on the United States’ government website are in the public domain.  https://search.usa.gov/search/images

Some modern-day graphic artists & photographers have released some or all of their rights.  Some websites include modern, public domain photos, such as http://www.4freephotos.com/

You can also find great, legal images — with various licenses to use them — via Creative Commons: http://creativecommons.org/image/

And, here’s a mother lode of free image resources (or kinda-sorta free, so read the fine print): Almost 100 Free and Freemium Stock Image Websites.

Those are just some of many great resources for free, completely legal, royalty-free images.  (Remember: The images are still copyrighted. You’re simply given permission to use the images without paying a fee.)

Stock.xchng was one of my favorites.  No matter what the name of the site is now, if the option is offered: be sure to search with “Restricted OK” set to “NO.”  http://www.sxc.hu/

Morgue File (not what it sounds like), also called MFile, is another great resource.  Like Stock.xchng, be sure to check the licensing terms for each image.  http://www.morguefile.com/

Most free, royalty-free websites also offer higher-quality images for a fee.  The fee can be as low as $1 with unlimited use rights, and that often depends on the size of the image you want (for online or print use) and whether you’ll be reproducing it on tee-shirts, coffee mugs, etc.

Or, if you found an image — like one of mine — through an image scraper or photo-sharing site, it’s easy to double-check the owner (and the rights to that image).

Browser plugins like Search by Image for Google make it right-click easy.

Then, ask the owner for permission to use the image in your project.  Many of us are happy to say yes.

The best idea of all?  Take your own photos.  Practice makes perfect (or at least good enough), you don’t need to get a photography degree… though you could.  And, once you’re comfortable with your camera, consider adding your photos to sites like iStockPhoto.com and earn money from them.

Don’t feel bad if you’ve been using images without permission. 99% of the people I teach or consult for have no idea they’ve been doing anything wrong. This includes respected artists including photographers and illustrators.

What’s important is to use legal images as much as you can, starting right away.  The Internet is always changing, and copyright law is becoming a far greater issue across the online community.

Besides, there is no reason to copy others’ graphics without permission.  There are many wonderful, free resources for great images.  Use them instead.

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Want to reprint this?  You can.  It’s free.  This work by Aisling D’Art is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Trademarks, original ideas, and copycats

Copying is a regular topic of discussion among artists. Recently, someone suggested copyright and trademarks as ways to protect clever product or workshop names that we use, and so on.

I can’t give you legal advice. I’m not a lawyer. But, here are a few of my experiences and opinions:

 

I’m not convinced that it’s worth the time or trouble for a small business to trademark a zine, eBook, or workshop name.

My opinion is, unless you’re the first one to do something, or the first to do something WELL, you don’t have much protection when it comes to ideas, titles, or names. Ultimately, it has to be about you, personally, and the energy that shines through in everything that you do.

Of course, those of us with slightly neurotic Virgo tendencies, get caught up in the “if you can’t do something well, don’t do it at all” trap: We don’t follow-through with great ideas because we can’t do them perfectly.

Likewise, don’t hold yourself back from great ideas because you’re neither first nor the best to do them. Or, because you’re afraid you’ll be copied.

But, unless it’s the most blatant act of copying AND you’ve got deep pockets for a protracted legal battle, don’t get bogged down by fears that you’re “copying” someone else (even inadvertently), or that you might be copied, yourself.

Oh yes, a clever workshop name makes your class stand out from the rest, sometimes. But generally, students take a class because they want to study with YOU, first & foremost.

Quirky brand/business names–such as Yahoo, Google, and Amazon–are just funky enough that people tend to remember them. “Branding”, as it’s called, is an entire field of study in itself; Internet marketing expert Seth Godin has given his books such stand-out titles as “The Big Red Fez” and “Purple Cow.” That’s a good idea.

From there it becomes a PR game, so that you (and your project) are well enough known that anyone else who does the same thing, is labelled as a copycat.

Be the very best YOU that you can be. Don’t copy, of course. But also, don’t worry about the copycats, and don’t fret if it turns out that your original idea was–at the same time–being developed in someone else’s studio at the same time.

Do what you do, and do it as well as you can. And, as you approach the big leagues, get attorneys to sort out trademark issues for you. That’s my best advice on the subject.

Copyright and the ‘three stroke’ rule

The “three stroke” rule suggests that you can copy anyone’s art as long as at least three brush strokes are different.

This is NOT a law. In fact, even within clear copyright law, every legal case will return a different decision.

My background in copyright law

I’m not a lawyer, so this is opinion and based only on personal experience.

When I worked as an editor at M.I.T., I often helped professors rewrite portions of their own textbooks for publication elsewhere. And, since the textbook publisher (not the author/professor) often held the copyright, I had to be sure that the professor wasn’t plagiarizing his own work.

So, I spent several days with teams of attorneys, discussing just how many changes are necessary to avoid lawsuits. And, even in publishing, there are no clear rules. We settled on “three to five major changes, per page” as a cross-your-fingers guideline.

Since then, and for my own art, I’ve followed copyright cases closely.

Simplest answer: Use copyright-free materials

Working for M.I.T., with its own lawyers, is different from being an artist on a limited budget. You probably don’t have the resources to consult an attorney, much less hire one if you’re sued for copyright violation.

This is one reason why, from time to time, I offer products & freebies for artists to use without these headaches.

It’s also why, in the past, I’ve organized tours to popular (and picturesque) European destinations: So you can take copyright-free photos for use in your art.

Don’t make copies

Basically, you can’t copy someone else’s work (art, music, writing, etc.) in a way that deprives him or her of income that would otherwise go to that person. So, a “knockoff” is illegal.

Photocopying or otherwise reproducing someone else’s art/images to avoid buying a copy (or extra copies) is also illegal. (For personal use–for example if you want to photocopy part of a book that you own, to keep copies of those pages in a reference notebook for your own use–you can sometimes photocopy others’ work.)

Reproducing others’ art online (without permission) is very definitely a copyright violation, unless the art is old enough to be in public domain. (But, if you’re posting someone else’s photo of the art, the photo itself may still be protected by copyright. Again, the tours I’m scheduling will include museums, so you can take your own photos for use in your art.)

Additional opinions:

      Protecting your art, online –

http://www.rightsforartists.com/copyright.html

      Copyright, in general and online –

http://www.templetons.com/brad/copymyths.html

About.com on copyright for fine artists – http://drawsketch.about.com/cs/resources/a/copyright.htm

Copyright and collage

Collage is where the debates get heated.

If you use an item that you purchased in a collage that you sell, and there was a copyright notice on it, the copyright notice needs to remain visible, if possible. You may also choose to document the sources of the images in your collages, on the back of the work. (I generally don’t, but I may in the future, if only for my own reference.)

And, some artists will argue that you can’t use any copyrighted material in your collages, even an original item that you purchased. I’m not sure that I fully agree with this, but I recommend reading this and checking with an attorney if you are very concerned about this.

Every artist–especially those of us who aren’t lawyers–will interpret the law differently. Many attorneys (and even judges) will disagree with each other, too.

We’ve all seen collages in artists’ published journals and diaries, and some of them feature copyrighted materials. The days of Andy Warhol’s free use of the Campbell’s soup can… well, that’s ancient history. But, copyright can be less of an issue when the individual copyrighted image is a small part of a larger work. Nobody can give you a firm rule about this, not even attorneys; use common sense.

Also see Copyright law and art – Just my non-legal opinion for collage & assemblage artists.

Fabric in art that you sell

Likewise, fabric designs are copyrighted too… but I’m not going to hand-paint every piece of fabric that goes into my quilts and other fabric art that I sell. So, yes, my collages–paper and fabric art–include material copyrighted by others. I try to be careful about reproduction rights, but I’m less anxious about the original work, especially if I’m not creating it to sell.

Then again, if you make clothing, accessories, or even dolls from a commercial pattern and sell the finished item, you can sometimes get into trouble. Many pattern companies specifically state whether you can sell items made from their patterns.

Is this sounding confusing, murky, and just plain weird…? That’s because copyright laws ARE confusing, murky, inconsistent, vague… and sometimes weird!

Avoid the bulldogs!

Certain companies and estates are more watchful than others when it comes to copyright: The Elvis Presley estate, the Walt Disney company, National Geographic magazine, Sony and Star Trek are among the more well-known copyright watchdogs. There are many others.

But, National Geographic was also sued by its own photographers when it reprinted past issues on CD-ROM, and used photos from those issues without the specific okay of the original photographers.

And, when Barbie owner Mattel sued artist Tom Forsythe over his “Food Chain Barbie” art, Forsythe won.

That said, Mattel still tries to shut down websites and artists who parody Barbie using the original dolls. If you can use any other doll for your parody art, avoid using Barbies and you’ll avoid lawsuits.

“Fair use” is not always an excuse

Ahhh… “fair use” is a tangle. And, just because someone else gets away with “fair use”, doesn’t mean that you can use that same image without risks. The issue of willful intent and where the profits go, can make a big difference.

Linkhttp://fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html

The hazards of derivative works

“Derivative works” are also considered “transformative” and enter a truly gray area. But, if you’re obviously making money off someone else’s work, you’re risking lawsuit.

If you take a unique-to-one-artist concept, color scheme, or mimic someone else’s general style AND subject matter, you’re generally in “derivative” territory. How closely it matches the original, and which state you and the original artist live in, will determine whether or not a lawsuit would be successful.

Linkhttp://www.chillingeffects.org/derivative/

And, unless something is actually trademarked, you can copy the “look and feel” of someone else’s work with fewer worries.

Linkhttp://www.dreslough.com/dee/Legal/Primer1.html

“Stealing” ideas

On the other hand, ideas canNOT be copyrighted. So, yes, if I talk about a book idea online and, say, Somerset Studio takes it and announces their own version of the exact same idea… I can’t do anything about it. Ideas–and book titles–cannot be copyrighted. (Sometimes they can be trademarked, which is a different topic.)

Parody is a very limited field

Parody is another blurry area. Sometimes, it’s similar to a kid who taunts a sibling and, when caught, tells his mom, “I was just kidding.” But, in other cases it’s clearly intended as parody, not to be confused with the original.

Linkhttp://www.chillingeffects.org/protest/faq.cgi#QID542

There’s also the question of celebrity images, privacy, First Amendment, and so on, such as the Winters brothers’ case.

In summary

Copyright is a confusing field for artist. The “three stroke” rule is a guideline, not a law. You may need more changes–or less–to avoid copyright problems. And, don’t forget that you can win in court and still lose your shirt in attorneys’ fees.

Personally, I’m careful about art that I sell or commercially reproduce, and generally shrug off worries when the art is for my own journal or other personal use.

My own resources

Remember, you can use artwork & photos I specifically create for reuse. (I’ll always make that clear, with whatever-it-is you’re downloading.) You can use those graphics in your art, even art that you sell.

Some other artists offer similar copyright-free images, but be sure to read the fine print before you buy or use those images.  Be sure that there aren’t conditions that may limit their use.

Copying and coincidence in art

Many artists–especially new and/or tired ones–talk about being “copied” by others. Sometimes, it’s not clear who is doing the copying, if anyone is. And, artists–even established ones–are often influenced by the same things as others, and develop startlingly similar ideas as a result.

RICE’S MILAGROS DOLLS

For example, awhile ago I visited Rice’s website, voo-doo-cafe.com, and saw milagros-type dolls almost identical to the ones that I’d been quietly working on for several months.

(Mine didn’t turn out as well as hers did. I sold a few and then abandoned the idea. Rice shines in this area; I don’t.)

There is no way that Rice knew what I was doing, and vice versa. It was simply coincidence.

LESLEY’S ‘FRAGMENTS’

Likewise, in the early 1980s I made pieced and appliqued quilting squares for other artists to use in their fabric art vests, wall hangings, and other art. I sewed them on my favorite treadle sewing machine, using a variety of techniques including primitive image and text transfers. These squares sold quickly in shops along coastal Maine, but by the mid-1980s when I moved to Florida, I’d stopped making them.

Nevertheless, I was stunned when I saw Lesley Riley’s “Fragments“, which are almost identical to what I was making in the early 80s.

Was she “copying”? Of course not! I doubt that she ever saw one of my fabric art pieces. Nevertheless, after seeing Lesley’s pieces I delayed plans to make more of them myself. I’m a little phobic about being accused of “copying,” I guess.

(Note: Both Rice and Lesley are very good friends of mine. And, I’ve mentioned my dilemma to Lesley, who immediately laughed and told me to go ahead with my fabric art, and not worry how it looked to others.)

SIMILARITIES ARE INEVITABLE

My point is, we’re working with similar materials, often similar inspirations… it’s impossible NOT to be on the same wavelength as other artists, whether you share contact or not. You really do have to just plunge ahead with your own projects, products, visions, and dreams. As your work evolves, your unique signature style will be there, and make the differences clear.

But, it’s vital to keep these kinds of coincidences in mind, when you think that someone has copied you, too. It could be simple coincidence then, as well, no matter how “just like mine” their art/workshop/project seems to be. And that’s difficult to detach from, sometimes, when the similarities are overwhelming… especially when you’ve invested a lot in an idea or project.

Yes, my visibility makes people think that I invented the techniques that I use. I didn’t. NObody “invented” them really… we’re all inspired by different resources, or at least in different ways.

Oh, people do research some techniques. I’m responsible for several in popular use, including one kind of gel image transfer. But, that’s still not “copying” as far as I’m concerned. I stumbled onto a few things that worked and cheerfully shared them with others. We all do this. Techniques generally aren’t proprietary.

What makes our art unique–not “copying”–is how true we are to that individual, internal voice that speaks from our respective souls.

COPYRIGHT

Copyright issues come into play when someone is using your notes, or copying your art, line-for-line. But, you cannot copyright an idea, a trend, or a project, per se.

You can trademark a name or a slogan. You can patent a specific design, including the essential points that make it distinctive. But, to do this formally can be complex and expensive, and making it into a legal issue if someone copies is generally more expensive than it’s worth. And, nobody looks good when you sue. There are always hard feelings.

This is an area where we may always have confusion and problems. We must keep moving ahead and creating from our own visions, and take a chance that someone 100 or 1000 miles away isn’t acting on the same impulses and inspirations.

YOUR VOICE IS WHAT MATTERS

Stay true to your own voice. Always be yourself, and trust in that. Art has the most vitality when it is authentic.

When you’re expressing your deepest self, your message will be uniquely yours, but it will also have elements in common with what everyone else thinks and feels, because–underneath it all–we share more than people may realize.

Copyright and art

This article originally appeared here in 2004.

Someone asked me about copyright law, the Sargent images that I’ve used in my printed (reproduced) projects and products.

I’m not an attorney, so this is my personal opinion.In general–works created before 1923 are in the public domain, at least in the United States. And, once something is in the public domain, the individual piece can’t go back into full copyright.

Despite Dover Books’ ominous-sounding copyright notices, for example, the individual images that they use–the ones that are already in the public domain–cannot be copyrighted by them.

All that Dover Books can copyright is how the images are assembled and used. That is, I can’t burn a copy of their clipart CDs and sell them as my own, or even give away copies of the CD if it detracts from Dover’s potential sales.

And, if I use a significant number of images from a single Dover source–enough to compromise future sales of that book or CD–I should pay Dover’s reasonable fees for significant single-source use. (About $5 per image, as of mid-2004.)

Completed works v. elements in them

Likewise, the Sargent image in my collage is in the public domain, but nobody can copy the collage that I created with that image, except by my permission. My copyright–which exists automatically, as soon as I created the work–protects my collage but not the Sargent image in it.

Sargent died in 1925, which is why I’m comfortable using his work in my art. Most of his published work was created well before the 1923 public domain date.

(But, if I use a recent photo of Sargent’s art, and I didn’t take the photo myself, that can be a copyright violation.)

Regarding copyrighted works used in collage… that’s a tricky question and if you ask a dozen lawyers, you’ll get two dozen different opinions.

Photocopies v. originals

Generally speaking, if the piece that you use is readily recognizable as a copyrighted work, don’t print copies of it. The risks are greater if the work/item/photo you’re using is still protected by copyright and represents a essential part of your finished work… but defining “essential part” is something taken up by the courts on a regular basis… and the laws change, steadily.

Except for US paper money, which you aren’t supposed to damage in any way, you can use pieces of anything copyrighted in your art… as long as you bought it (or otherwise acquired it, legally).

For example, I’m working on a collaged cigar box purse, using a whole lot of Elvis playing cards that I bought. That is perfectly legal… they’re my cards and I can do what I want with them, as long as I don’t do anything to defame the copyright holder in any way, or cheat him/her out of rightful income.

But, if I’d taken those same cards and photocopied them to use in collage… that’d be illegal. By photocopying instead of paying the copyright owner (or his/her agents) for the images that I’m using, I’d be technically depriving them–in this case, the Presley Estate–of their rightful income.

Using others’ work as collage elements

Regarding selling the finished art, even if all pieces of it were acquired legally… We’re again getting into a dicey area.

In some states–I think that California is one of them–if someone’s art is resold, the artist is entitled to a percentage of the profits from the sale. This protects, say, someone from buying a movie script for cheap, and then reselling it to MGM for big bucks without giving the original writers a cut of the money.

It also prevents you from using a published photo or even text as an important collage element, and then selling the finished work for huge money without sharing the wealth with the copyright holder. (I believe that Sonny Bono was responsible for this legislation.)

For an artist’s worst nightmare, see the Rauschenberg case, where he use a page from an old Time magazine in one of his “found art” collages, and was successfully sued by a guy whose photo was on the original Time magazine page. (The story of this is at http://www.benedict.com/)

Andy Warhol as a precedent

Andy Warhol and others used copyrighted images (such as the Campbell’s soup can) without thinking twice. Well, it’s a different era now in a more litigious society, and we’re working with different laws, and laws that are more strictly applied.

I wouldn’t use modern images as a significant part of any collage in a Cafe Press calendar, or on fabric created by Spoonflower, etc.

Many pages in Teesha Moore’s “Play” magazine featured collages & journal pages with copyrighted images. Today, several major monthly art magazines display collages with copyrighted images, as well.

I’ve avoided those kinds of risks in my own zines, but that’s a personal decision, and one I may re-think as other artists seem to establish a safe precedent.

Get professional advice

The only thing that’s clear is that there is considerable flexibility in terms of what can and cannot be used in reprinted collage art. Read as much as you can, talk with an attorney, and then decide.

The simplest solution is to use only public domain and copyright-free images, including things like photos that you take yourself.

Related links: