Author: Aisling

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.

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

No, that 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 team of 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 those 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

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. Check the fine print.

Is this sounding confusing, murky, and just plain weird? Well, 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

“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.

Link – http://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.

Link – http://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.

Link – http://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. So is “intellectual property.”)

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.

Link – http://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 practically an urban legend, not a law. You may need more changes – or less – to avoid copyright problems. It varies from work to work and case to case.

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.

Aisling’s notes: Bob Baker, author of “Unleash the Artist Within” and “Branding Yourself Online” offers some very helpful advice about creating interesting and helpful websites. This is a reprint of one of his articles. I wish that I’d read some of this years ago.

9 Ways to Communicate a Rock-Solid Identity
by Bob Baker

Branding has been a business buzzword for many years. But the term has implications far beyond corporate logos, mission statements and theme songs. Effective branding is all about telling customers who you are, what you do and how you do it. Despite recent tragedies in the U.S. and the bad rap that the Internet has received over the past year, more people are spending time and money online than ever before. That’s why it’s vitally important for small businesses and solo entrepreneurs alike to use the Internet to make an impact. Here are nine tips to help you carve a focused identity online.

1. Define your brand up front. When visitors arrive at your web site, let them know immediately what you do and why they should care. Far too many web sites shroud their identity in flashy graphics and ambiguous slogans without telling people what the company or person actually does. View your Web site through the eyes of a new visitor. Does it spell out exactly what your brand stands for? If not, redesign it so your purpose and identity are unmistakable. For example, Terri Lonier’s Working Solo site at www.workingsolo.com does a good job of establishing her as a resource for freelancers. The opening paragraph lets visitors know exactly who the site is for.

2. Lead with what you do, not who you are. It may defy logic, but making your company name the most visible element on your home page may not be the most effective way to reinforce your brand. A Web-based or e-mail marketing message should state a benefit right off the bat. Which of these paints a clearer identity: The business name “Dog Owner Central” displayed in large letters or the more specific description “Training tips for busy dog owners”?

3. Use a real person as a figure head. The online world can be a cold, mechanical place. Your branding efforts are more effective when you add a recognizable, consistent human element. Think of the way Dave Thomas promotes Wendy’s. If your company has a CEO or spokesperson who is closely identified with the company offline, make sure that connection carries to the cyberworld. If you run a business by yourself, by all means, put your name, photo and personal message on your web site. Nothing creates mystery and distrust more than a site that is void of a human contact and asks visitors to send e-mail to the “webmaster.”

4. Develop a fan-club mentality. Most online marketers try to generate readers, visitors or users. I encourage you to switch gears and create fans. “Users” are people who visit your web site, subscribe to your newsletter or buy your products and services. “Fans,” on the other hand, cheer you on, rave about you to their friends and eagerly follow everything you do. Which would you rather have?

5. Make good use of words. Verbal content is not only king, it’s the entire kingdom. Even though designers try to squeeze as much graphic impact as they can out of limited bandwidths, what matters most online are the words you use. I don’t buy into the less-is-more, bullet-point mentality of writing for the web. To create fans online, you must deliver useful brand-related information and speak to readers in a conversational tone. If it takes more than one or two scrolling screens to do that, so be it. As an example, illustrator Bob Staake has designed a web site that uses his personality effectively at www.bobstaake.com.

6. Make sure visual elements reinforce your identity. While words are important, the look of your Web site must also support your brand image. Is your brand best served by hard edges or softer, rounded shapes? Do primary colors capture your personality or would earth tones be a better match? Find the design scheme that best compliments your identity.

7. Become a one-stop destination. Let’s say your company sells unicorn-themed knick-knacks, posters and greeting cards. You might simply post an online catalog and a few profiles of your products. However, a far better approach would be to set up your site as a clearing house for all things unicorn-related — articles on the history of unicorns, personal stories from customers who have been touched by their unicorn possessions, unicorn-related photo galleries and message boards, etc. Your online presence should establish you as the primary resource in your field. For a great example of this concept in action, check out Hot Air Ballooning at www.launch.net.

8. Publish an e-mail newsletter. Having a brand-centered web site is great, but you must rely on people taking it upon themselves to visit it. Offering a free e-mail newsletter allows you to build a database of subscribers who are specifically interested in what your brand represents. Best yet, being able to deliver your message by e-mail puts you in control of the frequency with which your audience is exposed to your brand. Repetition is crucial. To generate subscribers, place a newsletter sign-up form on every page of your site. Note how I’ve done this at my www.BrandingYourselfOnline.com site.

9. Be visible through online forums. Small business owners should also regularly post to online forums, such as message boards and discussion lists widely read by people likely to be attracted to the brand. If your area of expertise caters to motorcycle enthusiasts, make sure you offer useful information — not just a sales pitch — in the places where motorcycle enthusiasts gather. Be sure to include a link to your web site in a signature file at the end of each message.

The Internet is still a gold mine of opportunity, especially for those who use it to create a recognizable brand identity. Use these tips to create your own indelible image online.

— Bob Baker is the author of “Poor Richard’s Branding Yourself Online: How to Use the Internet to Become a Celebrity or Expert in Your Field.” Download two chapters and get free branding tips by e-mail at www.BrandingYourselfOnline.com.

It’s important to be friendly when you have a booth at an art show, a crafts fair, or any art-type festival.

Often, owners of new art galleries visit shows like this, to spot new talent. You may be invited to participate in an upcoming gallery show, or find a similar opportunity to “move up” to galleries.

Here’s how it works for me:

I’m painfully shy in real life. Oh, with enough preparation, I’m fine in front of an audience. But, one-on-one such as fairs & festivals… I tend to stammer and blush a lot.

Don’t just stand there, do something!

I set up my portable easel or create a work space at my table. I casually work on some art. That helps me to dilute the focus. When someone approaches, I’m less self-conscious; we’ll usually be discussing my art, not me, personally.

Curiosity–wanting to see what I’m doing–also attracts people to my booth. Because my attention seems primarily on my work, visitors feel less “stared at”, too.

I look up regularly and smile, even if no one is watching me. I’ll usually break the ice by saying, “Isn’t this a GREAT day!” or something. Most people agree, and we chat a little about the weather before talking about whatever I’m working on, and/or selling.

Be memorable with freebies

I usually give out freebies of some kind. Maybe it’s a simple crafts pattern… a single b&w sheet that I’ve photocopied. Maybe it’s a dish of sweets or wrapped candies, with a “take one” sign next to it.

(If you can, put your name and URL or contact info on each one. That’s smart advertising!)

But, I try always to give my visitors something. It brings them into the booth, and they leave with a smile. I’ve been amazed at how many remember me for that, years later, and come back to buy something as a “thank you.”

I’ve tried professional arts/crafts festival circuit, and–especially for beginners–I recommend smaller fairs instead. I prefer the less expensive shows & fairs; at them, I can relax more. It’s not much cash out of my pocket if I don’t sell anything, and–worst case–if I create art all day, I’ve accomplished a lot.

Also, at the less expensive venues, my booth has a chance of shining in the crowd. I always work on looking professional, whether it’s a small fair in a church hall or a glitzy festival show.

At smaller fairs, the other vendors are among my best customers, too, so it’s good to be friendly. Yes, I suppose that we’re competing for the customers’ dollars. I never see it that way, myself, and I try never to act that way.

And finally, it’s vital to have items at the lower price range for people on a tight budget. Or, for people who’ve never bought original art or crafts before, and won’t fully appreciate an item’s value until it’s been displayed in their homes for awhile.

Plan to make the day fun for people who pause at your booth or display. You’ll go home with a bigger smile, and perhaps more money in your wallet as well.

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.

In the following short video, Bob Baker talks about the importance concepts of Be – Do – Have, and how it affects us as artists.

3 Step Formula for Creative Success

For more about Bob Baker and his advice for artists, see Bob Baker’s Artist Empowerment Blog.

This article originally appeared at this site 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.

In my non-legal opinion, 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 ItsArtLaw.org)

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:

• Project Gutenberg is a good business model to follow.
• Copyright for Collage Artists, another artist’s opinions.
• Copyright Term and the Public Domain in the United States, easily my favorite resource.