Ask Harriete

Pandora's Box or Toolbox - COPYRIGHT of Photographic Images

On November 18th I wrote to Garth Clark via email to thank him for his comments about the previous post of ASK Harriete. We were discussing the issues surrounding the importance of photographic images in creating a dialog and critical discourse within the arts and crafts community. 

Many issues surround the use of photographic images.  So in an effort to bring this discussion into a more public forum, Garth Clark agreed to a post of our email conversation.

Garth Clark is a noted author and lecturer who recently lectured at SOFA Chicago. I have listed a few of his many books on the right column of this blog as affiliate links for your convenience.

HARRIETE email text is in black.
 GARTH Clark's email text is in steel blue.

Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Thanks for your comment [on the previous post on ASK Harriete]. I am glad to hear your point of view directly rather than filtered by my notes and memory.
 
Trying to be organized here …. It seems that there are three issues:
Issue#1. Hampering versus encouraging ”legitimate scholarly or critical usage.” Publishing books and articles including images for “legitimate scholarly or critical usage” should definitely be encouraged.  This is the reason I wrote the previous post about this topic. The arts and crafts will grow and develop by expanding such discourse.  I would like to encourage authors, publishers, artists and makers to all cooperate in this endeavor.  We all benefit.

GARTH:   Encouragement is not enough. See comments below. It has to be a legal option for the writer.

Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Issue #2.  Copyright protection and artists’ rights to control images of their work.
I could never endorse that artists abdicate their rights of ownership of the work they created.  If they don’t see a benefit to themselves or their community for participating in someone's “usage” it is a loss for them.  That is their right, whether anyone else agrees with them or not.  Yet, I hope that it is clear that in the vast majority of situations, I firmly believe that the artists benefit by granting permission (even without direct payment) and being included in a publication.

GARTH: I agree but with an exemption. My free speech as a critic should enable me to voice my opinion and illustrate the object of my criticism with or without the artist's permission so long as it does not constitute commercial usage. It cannot be "by permission only" because my experience in real life is that artists are into free speech for themselves but not when someone wants to question their work. So to think that they will just cooperate is naïve.

 

Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Issue #3.  Use of images for commercial enterprise.
While the premise of books and articles may be “legitimate scholarly or critical usage,” my understanding is that someone is selling those publications.  Whether or not anyone makes a profit, such use is a commercial enterprise.  For example, book publishers sell educational textbooks but are still required to obtain permission to publish copyright images. Even if profit is not the primary motivation, the author or publisher is still benefiting from the use of artists' images in the publication.

GARTH:
This defeats the whole purpose. The craft world is so concerned that someone might be slipped a buck or two and they will not. How can criticism be disseminated without someone being paid, a publisher, a critic, a photographer. The point is whether one was making a critical statement about the art or trying to exploit it for profit.

Do you know what a reviewer gets paid by a daily newspaper for a review, $130. In many cases what the writer gets for writing a piece is less than what the artist receives for copyright fees. Current fair usage already mandates limited use of the imagery. If I were to write an entire book on an artist, pro or con, that would be a violation. But if in a text with 200 images I needed to reproduce two photographs that were essential to the critical argument, that is fair usage.

And that does not give wholesale permission for anyone else to use the image thereafter. No primary right has been lost. And it's not that artists use this to control copyright in a fair and open manner but often to control content (i.e. smother dissent with threats of lawsuits). I find that antidemocratic and an affront to the supposed open exchange of the aesthetic experience for which the art world purports to stand.

What this has resulted in is that independent book publishing is on its way out.  Over 90% of the books you see on artists today are artist sanctioned volumes (often with fees waived because its to their benefit) that are paid for upfront and in full by their gallery, a sponsor, collector or their estate. Publishers are too scared to cross this line, so all we get now is coffee table PR. Don’t you think something has been lost?

I would warn younger artists in trying this ploy. Publishers simply exchange images for which a fee is requested with those of artists who make no charge. So unless you are crucial to the document, you could find yourself edited out by the accounting department.

But before you get your crafters smock in a twist, bear in mind this applies ONLY to LEGITIMATE critical writings. And there are already some guidelines. Books such as Lark are not critical studies and would not be exempt. I am arguing for a very narrow exemption on the correct side of free speech.

Critic’s Choice © 1986
"Resonant with obligue social
implications"
brass, copper, steel, painted, plated,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
So an exchange of benefits seems like an opportunity.  Let the two parties negotiate.  Hopefully, both sides see the mutual benefits of working together (with or without cash compensation), but if they don't agree, both must walk away empty handed.  I think it would be heavy handed to "amend the law" to assure that one side always wins.

GARTH:
And as so often happens in the arts with “enlightened” legislation to protect the artists such as 5% resale fee to artists, 99% of the benefit goes to the superstars. If you are going to pay for photographs, the bulk of that budget is kept for the Koon's and Hirsch’s of the world because they have the greater bargaining power. (Although Koons was very gracious in allowing me to include his work in my recent Metalsmith piece without cost.)

And it gets worse because in some cases one has to pay the museum that owns the piece, the photographer who shot it, and the artist. Three charges! That bill can come to over $1500 per image! Bear in mind that almost nobody makes big money off art books. So while it may fit into your commercial use bracket, neither the publisher nor the author earns enough for a week in Monaco. And what books do in developing audience for artists is immense. Copyright fees are now strangling the independent book publisher. Major artists will not feel any pain because they self-publish. Lesser artists (financially speaking) will become invisible.

Thanks for giving this subject some air.

HARRIETE to the readers: This discussion is just beginning. Do you have any comments or questions that you would like to add? Does this issue impact only the rarefied artist or the entire community? If you are paid for using images of your work, is your photographer going to expect additional compensation?   I personally wonder who decides what author or document fits into the category of "LEGITIMATE critical writings."  Are we opening a Pandora's box with this discussion or can we arrive at a broad consensus?

Pandora's Box Make Me Over, Over, Over  © 1984
brass, copper, steel, painted, plated,
Artist: Harriete Estel Berman

Opinions from Joanna Golberg, Don Friedlich and Alan Revere about using their Step-by-Step Instructions.

Three authors of step-by-step instructions, Joanna Golberg, Don Friedlich, and Alan Revere offer their opinions about how makers should utilize their step-by-step instructions. This is the third post on the legal and ethical issues surrounding the use of step-by-step instructions. The previous two posts offered my opinion for Protecting my Step-by-Step Jewelry Designs? and Can I duplicate published patterns as my own work?

The crux of the issue is what happens after step-by-step patterns are published, then used as tutorials for education or creative inspiration. The replies from Don Friedlich, Alan Revere, and Joanna Golberg are below edited only for clarity and do not necessarily reflect the opinions of ASKHarriete or Harriete Estel Berman. No endorsement or refutation is intended or implied.

One more point, while my examples here have a jewelry focus, there are tutorials available in all media and the issues are the same.

An interview with JOANNA GOLBERG:

Harriete asks:
How would you feel if someone made a copy of a project from any of your books and then sold the work as their own?

Joanna:
I have actually seen this occur, I saw someone on ETSY selling a pair of earrings from a  project in Making Metal Jewelry: Projects, Techniques, Inspiration.  I do not care if someone does this, as those projects are put out there (not as my work), but as free designs for others to use.  (Sort of like in the Dover design books, I like to think.)  However, my HOPE in putting projects out there is that people will use the projects as a design guide and will change them suitably to come up with their own designs.  I know this does not always happen, but that is what I hope people will do. If they don't, it does not bother me personally. I keep my designs for my business out of the books.

Or alternatively, if they wanted to sell the work with an attribution such as “from the design/project of" [insert name of the book or name of the maker here] or something to that affect would be fine too. 

Harriete asks:
I didn’t notice any proviso in the books in my library.  Is there a statement in any of the books that say, "the step-by-step projects may be constructed only for personal use and not sold as a commercial item?"

  The Art & Craft of Making Jewelry
  © 2006 by Joanna Gollberg
   Page 47 showing step by step
   instructions by Joanna Gollberg.

Joanna:
No.  They cannot copy any of the text and reprint it, and they could not copy the project and say it is their own in print as a step-by-step anywhere, but they could certainly make the projects and sell them.  I think it is a little shameful for people to call those projects their own designs, but if they make them, it is their own WORK...just not their design. I hope they would recognize the difference, but also realize some wouldn't.  It takes all kinds, you know. I am happy to help people make things.

I want people to start with my books' projects, then branch out on their own and make their own designs once they have practiced the skills and techniques from my designs.  If this does not happen, that's OK, too.  I think it is so important for people to make things with their hands.  I love to be able to help other people do this. 

Harriete asks: 
Have you ever discussed this issue before with Lark Books (or another book publisher)?

Joanna:
Yes.  My editor and I have discussed this.  When I put a design out there in a how-to book, I cannot call it my own, for my personal use only.  I have given permission for everyone else to make it by printing the designs in a how-to book. That is why I am careful about what designs I put in my books.

Interview with DON FRIEDLICH: 

Don Friedlich produced one series of step-by-step instructions as a chapter in the book,  Professional Goldsmithing. In this example, Don Friedlich's instructions were not generic tutorials of a technique, but a clear step-by-step tutorial by the jeweler of his own work.

Harriete asks: How would you feel if someone made a copy of your step-by-step project in Alan Revere’s book Professional Goldsmithing: A Contemporary Guide to Traditional Jewelry Techniques and then sold the work as their own? 

Don Friedlich: My first reaction is not to be happy about it. But, when Alan Revere did the book, I knew it was possible. He stated it upfront when he contacted me.

Harriete asks: How would you feel if someone make a copy of your step-by-step project  and then wanted to sell the work with the attribution “from the design/project of Don Friedlich”, (or something to that affect)?

Erosion Series Brooch        ©        1985
Slate, 22k gold, 14k gold, sterling,
Artist: Don Friedlich
Photo Credit:  James Beards

Don Friedlich: For me, doing that piece would be really hard for someone else. That's always my best defense to being knocked off. The "you have to be crazy to try this" defense. In general, I have a real problem with people copying others' ideas. There will always be some cross-pollinating going on, but it is a matter of degree.

A woman at the shows once knocked off my slate work. She had come by my booth for years, sometimes with her family, to see my work. Then it appeared in her booth. I was quite upset. Plus the work was made poorly and much cheaper than mine.

You feel a little violated.
 
Harriete asks: Is there a statement in the book that says that the step-by-step projects may be reproduced only for personal use and not sold as a commercial project?

Don Friedlich: I don't recall if there is anything in the book about it.

Interview with ALAN REVERE:  Alan Revere published a book titled, Professional Goldsmithing with step-by-step instructions by several different jewelers.

Harriete asks:
How would you feel if someone made a copy of a project from your Professional Goldsmithing: A Contemporary Guide to Traditional Jewelry Techniques book and then sold the work as their own?

Alan Revere:
I think they are acting dishonestly if they claim the design is theirs. However, if they acknowledge that it is classic or traditional and they made one for sale, that's more honest. Unless noted otherwise (as in The The Art Of Jewelry Making: Classic & Original Designs, which explicitly states the pieces may be copied for non-commercial purposes) when I publish an instructional book, I am giving away the information and will not protect the rights.

Harriete asks:
Is there a statement in the book that says that the step-by-step projects may be constructed only for personal use and not sold as a commercial item?

Alan Revere:
Only in The Art Of Jewelry Making: Classic & Original Designs because it is about other people's work.

Purple Bead Identity Necklace  © 2001
Recycled tin cans, brass, electrical wire
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
Similar necklace featured in The Art &
Craft of Making Jewelry by Joanna
Gollberg

IN SUMMARY:
I hope that this discussion about step-by-step instructions has been enlightening. While there are many books offering step-by-step instructions, it is clearly the intent of the authors to offer this information for education, fostering creativity, skill development and personal enjoyment.

Thereafter, it becomes the maker's responsibility to understand that if they faithfully reproduce the step-by-step instructions, they are not the designer, they are the maker. Using designs or construction methods from other authors/designers in your work will always be a copy or imitation of the original. Whether it is copied from a step-by-step book or an image published in a book, magazine or online, it places an ethical limitation on how you can show or sell this work.

The really challenging part of making anything is coming up with your own ideas. It also offers the greatest reward. At some point, I think it is important to close the book, put it back into your library shelves or turn off the computer and start doing your own problem solving and creative designs. This is when your work will truly start to blossom and become ( your name here)'s work with a unique identity.

Harriete
www.harriete-estel-berman.info

P.S. Books mentioned on ASK Harriete are in the sidebar to the right. These are affiliate links. IF you purchase a book, this blog may receive a few pennies.

Can I duplicate published patterns as my own work?

Luci Wilder sent an email with numerous questions prompted by the recent article in Lapidary Journal, Jewelry Artist, April 2010 written by  Sharon Elaine Thompson. I have divided her email into two separate posts. Click here to read part one. This is part two.

Blue Dreams ©   Luci Wilder
Sterling Silver, Lapis Lazuli cabochon

Hi Harriete,
If I purchase a pattern book, am I able to make and sell pieces made from the published pattern? I ask because while I've got a piece of embroidery in the Smithsonian, it wasn't my pattern, only my adaptation of another designer's pattern (and I didn't sell it, I was "invited" by a former First Lady's secretary to stitch a piece for a White House Christmas Tree and I never made any claim that it was my design).  Now I find I've fallen in love with making jewelry... some with original designs by me that I would like to have published.. and others that are made from published patterns... it's the latter that concerns me... what I would like to do is give credit to the original designer, the magazine or book where the pattern is published as well as to the crafts person whom I contracted to make handmade glass beads, which I may want to use in a published patterned piece...

Basically, I'm asking is it "OK" for me to do all of the above? I do not want in any way to do anything illegal, but do feel that if I publish a pattern I'm giving everyone the right to make a piece of jewelry from that pattern, right?
Luci Wilder

Witnessing the Weight of Words © 1996
(close-up view)
Recycled tin cans, aluminum rivets,
electric motor.
Artist: Harriete Estel Berman
Photo Credit: Philip
Traditional quilt pattern used as a format
for contemporary commentary.
Permanent Collection Racine Art Museum

The examples in this post and in the previous post illustrate many historical precedents for use of patterns and step by step instructions.

Witnessing the Weight of Words © 1996
Recycled tin cans, aluminum rivets,
electric motor,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
Traditional quilt pattern used as a format
for contemporary commentary.
Permanent Collection Racine Art Museum

I'd like to first comment on things like an embroidery stitch which may have 100's of years of historical precedent and are elemental components which may be included in an infinite variety of patterns. The personal creativity is in the layout of the stitches. However, If you copied the larger pattern for the layout of the stitches, this is definitely a gray area.

The legality of copying depends on whether the design is in the public domain or not.  Most copyrights expire 75 years after the designer's death. 

Quilt patterns are another example with over 100 years of folk tradition. Copying a traditional quilt pattern does not infringe on the copyright.The contemporary use of quilt patterns may be drawing on this long history of "woman's' work" as a commentary or a traditional quilt pattern may serve as inspiration for another interpretation. There is no copyright right infringement on quilt patterns with a long history. 

Also, there is nothing wrong with using published patterns (assuming that you obtained the pattern in a lawful manner) to make or even copy an object for your own use or for educational purposes.  Step by step instructions and patterns supplied in contemporary books, magazines or television shows are provided exactly for this purpose.

I draw the line at using step by step instructions or purchased patterns and then claiming the work as your own.   

In my opinion, even with proper attribution to the instructions or pattern, the items should not be sold or published as original work. No work based on step by step instructions should be produced as a commercial product either as one of a kind or as multiples for sale.  This type of commercial application goes beyond the intent of the step by step instructions for the purpose of education, fostering creativity, developing skills, or personal enjoyment.

Professionally, I see your questions representing a complex set of issues with many every day parallels.   For example, we use recipes frequently (essentially a set of step by step instructions), and you are encouraged to enjoy sharing your cooking with your family.  But it would be unethical to enter a baking contest and claim the recipe as your own.   

IN SUMMARY, it is fine to follow a pattern or step by step instructions for your education, skill development and personal enjoyment, but the resulting work should not be sold or published under your name as your original work even with attribution to the source.

Stay tuned to the next post with comments by individuals or authors of step by step books based on their experience producing step by step instructions. Let's see what they have to say.

Harriete
www.harriete-estel-berman.info

Protecting my Step-by-Step Jewelry Designs?

Luci Wilder sent an email with numerous questions prompted by the recent post and article in Lapidary Journal, Jewelry Artist, April 2010 written by  Sharon Elaine Thompson titled, Intellectual Property. Her questions were divided into two separate posts. This is part one.

Denmark in Silver by Luci Wilder
Sterling Silver, unakite, found object
Art Nouveaux broach possibly Goerge Jensen.

Hi Harriete,
If I design a piece of jewelry and release the design for public use through publication in something like Step By Step Wire Jewelry, is it protected from commercial reproduction?
Sincerely,
Luci Wilder

Luci,
If you write step by step instructions for making artwork, it is a reasonable assumption that people will sit down and follow your instructions. That is why you wrote the instructions,  right? 

Now you want to control what people do with the finished product. Perhaps only beginners or hobbyists need step by step instructions and they will not claim that this is their design for commercial purposes.  But a published design probably increases the risk of being copied.

Have you considered a proviso at the bottom of the instructions? Something like this:

These step by step instructions are provided by (your name) and (name of magazine) for educational purposes only. Duplication of this design for commercial purposes including, but not limited to, selling, reproduction as a published image in a book, magazine or internet or reproduced as a production item in multiples, is prohibited.

BACKGROUND: There is a long history of selling patterns to the public. This dates back to 19th century women's magazines such as Ladies Home Companion that included patterns for clothing, embroidery, and quilting in the magazines. As another example, going back to the 18th century there were many books published with decorative motifs, pattern books and templates for furniture and household decorative arts.  Current television programs such as the New Yankee Workshop  and The Woodwright's Shop all offer patterns for wood workers. Some of these shows offer patterns for purchase, others offer step by step instructions for free online with the presumption that the television show makes its revenue from another source.

As another example, Alabama Chanin produces one of a kind line of clothing, but also wrote a series of "how to" books such as Alabama Stitch Book: Projects and Stories Celebrating Hand-Sewing, Quilting and Embroidery for Contemporary Sustainable Style with her methods spelled out in detailed instruction for the D.I.Y. (Do It Yourself) makers. (Look in the right hand column of this blog to see her books.) She also teaches workshops when she visits a city for her more exclusive trunk shows at the stores that sell her clothing line. She generates a following and revenue stream from each venue. These are just a few examples of patterns and step by step instructions. I could keep going for pages and pages.

In all the above examples, including Luci's, it is unethical to claim such patterns as your own for commercial reproduction.

While step by step instructions have value as a tutorial for education or creative inspiration, the final product should be for personal enjoyment and never be exhibited outside your home or claimed as your own creation.  It is unacceptable to take any one else's pattern, kit or product and sell or publish it as your own design.

To avoid entirely the "pattern/step-by-step" issue, the garment design contestants on the television show Project Runway are not allowed to use any patterns from outside sources. All the work needs to be an original design from start to finish. Clearly, the television producers realize how important it is for the contestants to produce entirely original work from start to finish.

My recommendation for anyone in Luci Wilder's shoes would be to select from the following options:

• include a disclaimer  as suggested above;
• create special projects that are very different from your own art or craft so that you do not think people are copying your personal style or identity;
• discontinue creating Step by step instructions (if this issue bothers you);
• let go of this issue and make sure you feel that you were properly compensated for creating the step by step by patterns in the first place.

Stay tuned for Part Two of Luci Wilder's questions and additional posts....this issue is quite complex.

If you have any ideas or suggestions regarding this issue please leave them as a comment. I would like to hear what the readers of ASK Harriete have to say. Do you use step by step instructions? Fine. Do you sell or promote work created following a step-by-step project as your work? What do you think are the consequences of this action?
Harriete
View my April Flower's on Object Fetish/Jewelry

April Flower Nutrition Brooch constructed entirely from nutrition labels from post consumer recycled tin cans in honor of Earth Day 2010 by Harriete Estel Berman.  This image shows the front and back.
Photo Credit: emiko oye. This April Flower pin is sold.
Stay tuned for more April Flower pins on ASK Harriete.

Fair Use and Copyright Infringement Highlighted in Jewelry Artists Magazine

 Campbell's Carnation Brooch © 2010
 Post consumer recycled tin cans by
 Harriete Estel Berman.  This April
 Flower Brooch is sold. View other April
 Flower Brooches on Etsy & Object Fetish
 Jewelry.  Photo Credit: emiko oye

We've had a lively discussion about copyright, Fair Use, and intellectual property on numerous occasions. You can find all the posts on Copyright Issues here.

Our discussions have been noticed by others, as indicated by an interesting article titled, Intellectual Property in Jewelry Artists Magazine April 2010 issue.

Champagne Nicolas Feuillatte Bracelets
©  Harriete Estel Berman
Recycled tin cans.
Photo Credit: Philip Cohen

This article covers many issues including, copyright and trademark including a fabulous layout of my work.
(Check out the thumb nail images of the article below.) Find this magazine issue at your local bookstore or library.

The article even references my practical list of Fair Use Guidelines that itemizes key factors in a brief and easy to understand format.

Stay tuned for two important questions from Luci Wilder  prompted by this article (in the next two posts). Lucy raises critical concerns regarding the use of step-by-step instructions published in books and magazines.

Harriete
www.harriete-estel-berman.info

 

A Copyright Question: Is Using Covers of Romance Novels "Covered" within Fair Use?

Hi Harriete,
I have a copyright question that you may be able to answer.  I am making a neck piece (not really wearable) in which I've cut out small sections of romance book cover illustrations.  I will probably produce a small series using similar illustrations.  If I exhibit these online and an  illustrator recognizes his/her work, could I be sued?  Or would it be true that since I have altered the work it would be considered OK?  I seriously doubt that I would ever sell huge numbers of these pieces.  Thank you for your help.
Claudia Rush

Take Me Now! © 2010
S.silver, fine silver, copper,enamel, book
cover illustration, resin,pearl.
Artist: Claudia Rush

Claudia,
In short, I think you could use portions of the cover illustrations if you are able to transform the images within your work to make your own commentary about romance novels or about these particular images.

Please refer to my Fair Use Guidelines which briefly itemize five key factors necessary to be considered Fair Use.   In this post, I'm going to add a bit of artistic critique as well.

To paraphrase Fair Use Guideline #3, Work using found objects (e.g. romance novel illustrations) needs to impart parody or commentary that is different than the original work.  Right now, I don't see a differentiating commentary. I see couples kissing or staring into each other's eyes associated with heart shapes and flowers.  These objects and images seem to be reinforcing the original intent of the illustrations.  To be more blunt, Fair Use does not cover the use of copyrighted images just because they are convenient or they already say what you want to say. 

While I am very supportive of artists using found materials under the concept of Fair Use in Copyright Law, I am concerned that this neck piece is not pushing the images into new territory. Specifically, I don't interpret a larger commentary or parody about romance novels or about romance in your work.  The images could just as easily be from movie advertisements or magazine ads or from other sources including photographs that you took yourself.

What alternative statements could a neck piece inspire to fit more clearly under Fair Use? The deeper meaning will make your work stronger and protect your fair use of the copyrighted covers more effectively.

How would you do that? For example:
Put small books (referring to the romance novels) on the necklace opened with bleeding hearts;
Put thorns on your necklace (you said they weren't wearable);
Put a small pens on your necklace (that looked like it was a thorns); 
Put a fabricated silver pen or pencil on the necklace that was bleeding or exploding with warped hearts;
Add paper Saccharine or sugar packages as "leaves" or "flowers".  

I just suggested a variety of ideas. You don't have to use any one of them. The issue is that the reason for using the copyrighted images in your work needs to make this necklace more about your own unique statement or some interpretive commentary about the illustrations or about the romance novels.

Your Fair Use commentary or parody could be about how the story line of romance novels follows a predictable or repetitive pattern. Another idea might be how romance novels sell the idea of romance which is thin like a piece of paper. Or the saccharine sweet illusion of romance from this type of literature.

While all of my opinions are subjective, and to some extent involve a critique of your neck piece, the point is that Fair Use does not protect use of found objects simply because they are images you want to copy.  A Fair Use work has to transform the found objects into a new work with a different message. 

Claudia, thank you for sharing your work for discussion.  It takes guts to make a piece and then put it out there for other people to review.  I hope this conversation will only make future work stronger and more effective.

If more people are willing, I might try critiquing other work in this blog in the future. 

Harriete
www.harriete-estel-berman.info

* According to the online ARTS Magazine of the Arizona Daily Wildcat the romance novel industry makes up 55 percent of paperback publishing in the United States, and more than 200 million books are sold each year, according to Desert Rose. The genre, and its various sub-genres, have their root in Samuel Richardson's Pamela, according to Desert Rose. Image scource can be found HERE. 

A response to comments on Copycat, Copyright and Coincidence.

Many people left comments regarding the series of posts about "COPYCAT, COPYRIGHT or COINCIDENCE". Here are some responses to a number of comments.

This series of posts was originally based on an Opinion article I wrote for the January 2010 issue of Metalsmith Magazine, Volume 30/No.1/2010.  I hope you get a chance to read the entire article in the magazine, but to facilitate a dialog on this blog, a summary of the opinion is presented in an earlier post. 

My response to some of the comments (in no particular order) is below.

Tamra Gentry asked how I feel when people say, "There's nothing new under the sun?" as a rationale for copying other artists' work.  My reply....a few people try to justify allowing copycat work to be sold in a show or included in a book by rationalizing "there is nothing new under the sun."  While I agree that we all build on a foundation of ideas established before us, this doesn't justify copying other people's work and taking credit as the originator.  It takes a lot of work to be "inspired" and create something new and innovative.  The originator should be recognized for creating and the imitator should be labeled "copycat."   

K. Alice asked, "How to prove that someone is a copycat?" I don't think you have to prove that the work is a copycat unless you are taking the case to court. The issue here is whether a "reasonable observer" would conclude that another artist's or maker's work is too similar or that the style or technique inappropriately resembles your own.

It is comparable to a person who steps on your toes in line.  If they did it one time, apologized and didn't do it again, then you would graciously accept that it was an unintended accident or coincidence. If that person repeatedly steps on your toes, you would no longer consider this unintended.

In most circumstances you will be making a judgment call, dividing hairs, whatever you call it.  There will always be room to quibble about differences.  But I have seen multiple examples where similar work seemed like no accident. It was inappropriately close, i.e. a "copycat" to any reasonable observer.

If you're concerned about an incident of copycat work, ask your fellow makers, artists or mentors for their opinion.  Ask for help from individuals you respect.  

Everyone should be an advocate for their own work, but I never suggested being rude or showing disrespect. Polite professional communication while standing up for your work is always best.

As a comprehensive statement, I would like to emphasize that this copycat issue should be part of an ongoing discussion and mission statement within the arts and crafts communities at large.  This is about fundamental ethics. Teaching and learning from one another is an honored tradition for skill development, but copying another maker's work should not be condoned nor tolerated.  I'll admit the boundary line is not always perfectly clear, but we should be united in saying out loud to the entire community, copying should be discouraged and originality should be encouraged.   

The article in Metalsmith Magazine and these blog posts are an effort to openly discuss a problem that may have always been there.  Not discussing the issue and whispering complaints behind closed doors doesn't do anything to rectify a problem.  Imitators get away with it only if everyone remains silent. 

Raising the issue of copycat work may be difficult in the real world but you could be performing a great service. A copycat will always have a limited audience for their work. The copycat person has much more to gain by finding their own voice, and in doing so, discovering an exciting future of possibilities. 

IN CONCLUSION: While I don't think that we can entirely eliminate copycat work, I believe that the best protection is a clear message of community ethics. 

I hope these posts offer a forum for ongoing discussion. Even if you are reading this post months later, you are welcome to leave your comments.

Save the Cease and Desist letters for your future reference. ["A kinder, gentler Cease and Desist Letter" and "A Formal, Assertive Cease and Desist Letter". 

Share this information with your fellow artists and makers. Discuss this issue at your next Critique Group or online.

Bermaid  Pin © 2010
Recycled tin cans, sterling silver rivets,
Artist: Harriete Estel Berman
Available for purchase on Etsy

Become an advocate for other artists. When you see copycat work, it is your responsibility to say something.  Either contact the originator, send a letter to the copycat, or speak to the exhibition or craft show organizer.

Perhaps the Internet can be a tool for effective change, rather than a medium where people are afraid of being copied.

Harriete
www.harriete-estel-berman.info 

 

What is the difference between Copyright and Trademark?

It is easy to find plenty of information online regarding copyright, trademarks and patents.  Perhaps an overwhelming amount.  So this post is just to get you started if you want to look into the various forms of legal protection for your work.

Start with the U.S. Copyright Office, especially their online page of frequently asked questions (FAQ's).

How is a copyright different from a patent or a trademark?
Copyright protects original works of expression and authorship.
A patent protects inventions or discoveries. 
A trademark protects words, phrases, symbols, or graphic designs that identify the source of the goods or services of one party and distinguishes them from those of others.

Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be.

Nolo Press offers this explanation about the difference between copyright and trademark. "Copyright protects original works of expression, such as novels, fine and graphic arts, music, audio recordings, photography, software, video, cinema, and choreography by preventing people from copying or commercially exploiting them without the copyright owner's permission.

Copyright laws do not protect names, titles or short phrases. That's where trademark law comes in. Trademark protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.

There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product. For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark may protect the graphic or logo from use by others in a confusing manner in the marketplace. Similarly, trademark laws are often used in conjunction with copyright laws to protect advertising copy. The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad."

Patent  Leather Shoes (joke des)

Next destination is the U.S. Patent and Trademark Office web site.  The "PTO" is a separate agency from the Copyright Office.  To obtain a trademark, it is usually a good idea to hire professional legal advice and guidance. While the PTO web site says that most trademark applications are filed online, trademark is not as simple as copyright. From everything I have heard, it is expensive and a service typically performed by attorneys specializing in trademark.

Jasmine Trademark Pin © 2009
Recycled tin cans, sterling silver rivets
Artist: Harriete Estel Berman
Private Collection

The Trademark search is a significant step. The Nolo Press web site has information about doing your own trademark search.

Nolo Press also provides a useful article on Getting a Patent on Your Own if you're interested.  Quoting the Nolo Press web site: "You cannot get a patent just on an idea. You must show how your invention works and your invention must be new. This means it must be different in some important way from all previous inventions. It also cannot be for sale or be known about for more than a year before you apply for a patent."
 
Harriete


Authentic Iconic Copyright,
Trademark and Patent Pin
© 2010
Recycled tin cans, sterling silver rivets
Artist: Harriete Estel Berman
Available for purchase on  Etsy

Copyright - Practical and Financial Issues

Should you "register" your copyright?  In the previous post, the ease and low cost of applying to the U.S. Copyright Office were highlighted, but a bit of effort and expense are required.  So let's get real, When is it worth it?

  Copcycat Won't Scratch © 2010
  Recycled tin cans, sterling silver,
  Artist: Harriete Estel Berman
  Available for purchase through Etsy

If you intend to sue a copycat in court, a "registered copyright" provides a strong legal foundation.  Beyond this particular situation, though, I don't see much practical benefit. 

The least of my concerns is the time to prepare documentation for the application which diverts you away from your studio.  The application fee is reasonable.    

Of much greater concern is whether you have the financial resources to hire lawyers and bring your case to court.  This is the really critical issue. It costs a lot of money to bring complaints into the court system. Even if you have an "open and shut" case, what is the cost of pursuing the legal action versus the financial award you might recover?

If you can not prove the financial damage of the infringement, what is the point?  For example, if someone copied a necklace or painting worth $2,000, then "damages" that you can claim are limited to $2,000.  On the other hand, if you plan to make a series or a production line based on the ideas, then you have much more to lose and a larger potential claim.  But unless you can prove this financial loss, don't plan on a large settlement.

Copycat See'em   © 2010
Recycled tin cans, sterling silver rivets,
Artist: Harriete Estel Berman
Available for purchase through Etsy

What should be done?  In the previous post, it was officially noted that "your work is under copyright protection the moment it is created."  That may sound like you don't need to do anything, but here are some proactive tips.  Photograph and date records of your completed work. Keep records of all shows, sales, and exhibitions. Never let people photograph your work or booth at a craft show. Hopefully it never happens but if someone starts to copy your work, you will have documentation.

However, without any doubt in my mind, your best protection is your own personal advocacy for your work and the general integrity of the arts and crafts community.  As discussed in earlier posts:

1) Continued professional innovation:

• design to avoid copyright infringement
• develop your signature style and technical skills;
• develop mastery and expertise in your own techniques;

2) Cease and Desist Letters:

• Begin with a "polite" request
• If necessary, send a more formal letter;

3) Help your community

• Teach that copycat work is not acceptable
• Inform the gallery, exhibition sponsor or craft show organizer whenever you see copycat work;

With or without a registered copyright, you must be an active advocate for your work and for the ethics of our community. 

And, Yes, if it makes you feel better to register your copyright, go right ahead.

Let's discuss this. . . .  "Here kitty, kitty, kitty."   Stay tuned for the final posts in this series. Please feel welcome to leave you comments or share your experiences.

Harriete
www.harriete-estel-berman.info

Copyright - Legally Protecting Your Work

Many artists are concerned about protecting their work from copycats and copyright or trademark infringement.  It is certainly understandable. All of us invest a great deal of time, energy, and money in making our work. 

Never Let Your Eyes Deceive You From
the Real Truth © 2001-04
from Consuming Conversation
Recycled tin cans, bronze, 10k gold,resin
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Obtaining your own copyright is relatively easy and inexpensive.  Go online to the U.S. Copyright Office where you can access lots of information and a page of frequently asked questions.

In general, you need to fill out the copyright application, include appropriate documentation, and pay the required fees.  Copyright may be for an individual work or a related series of work.

As an additional resource, Nolo Press offers multiple pages of do-it-yourself copyright information on their web site for free.

Consuming Conversation 2 © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Two questions that people often ask me.  Here are the questions and the answers copied directly from the U.S. Copyright Office page of frequently asked questions. 

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

These answers bring us directly to several critical issues:

First, it is not necessary to apply for copyright immediately to be protected.  You can apply ("register" your copyright) at a later time.  

Second, what you have created may not be copyrightable. To register (or to be granted) a Copyright with the U.S. Copyright Office you are going to have to prove that your idea is "original" to the anonymous reviewers sitting behind desks at the Copyright Office. This can be a challenge.

I have been turned down for copyright on some of my work. Using found objects of any kind from product packaging, to twigs and seeds, puts you in a kind of gray area by the narrow perspective of the U.S. Copyright Office. Same goes with trying to copyright functional items such as a necklace or a chair. You need to prove that your design for a necklace or chair, as an example, is a truly unique design.

Consuming Conversation © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

So, ultimately, is it worth it?  This is the topic of discussion for the next post.

Harriete
www.harriete-estel-berman.info

Cease and Desist Letters - A formal, assertive example to help artists and makers protect their work.

When someone copies your work, what can you do?  In the previous post, a sample letter with a polite approach was provided.  Many artist's feel that a personal appeal to "a fellow artist or maker" is better than being confrontational. If that works, fine, but . . .

If you tried being polite and it hasn't worked or you know an imitator will defy your initial efforts, it is time to get more formal and assertive to protect your rights. 

As mentioned in the previous post, it would be wise to step back and take a critical look at the situation.  Is this really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends, mentors, and fellow artists for an honest assessment.  

Collect "evidence" of infringement (e.g. side by side images of your work and the copycat work).  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the Internet to search and start asking around. Examine the details as well as the overall design.  

Ultimately, whether intentional or coincidence, if it is infringing on your work, you should take action. To keep this in perspective, remember that the copycat is taking something away from you.  They are benefiting from your work and hard-earned reputation.  

Nutrition Fact Earrings Drop Shape
© 2009
Recycled tin cans
Artist: Harriete Estel Berman
Available on Object Fetish

A sample of a formal Cease and Desist Letter is provided below.  Modify it to adjust for your specific situation.   Send it to the offending artist or maker first.  Hopefully this will be enough to resolve the issue.  However, if you get no reply or a belligerent reply, send copies to the offending artist/maker's gallery or representative and any other place where their work is shown (exhibition, book, magazine, etc.)  Your correspondence with these other parties establishes the fact that your work is "prior art" and that you do not condone imitations.  Raising awareness is your most practical path to stop the copycat.  If you do not take action, people may begin to think that YOU are the copycat.

sample Cease and Desist Letter

Name of artist
address
city, state
web address
email
Address of artist, gallery or exhibition
City, State

RE: Cease and Desist Copyright Infringement

Dear

I am the owner of and have reserved all rights in the artistic work titled, [name of work] (hereinafter, the "Work"), which was first expressed in material form on [original date of completion].

It has come to my attention that your work titled, [name of work] imitates or is substantially similar to the copyrighted Work.  Consequently, any offering for sale, sale, and display of such work constitutes infringement.   

Or
It has come to my attention that you have made and offered for sale at [name of gallery or exhibition] works which appear substantially similar or in imitation of the Work, which infringes my trade dress rights in violation of 15 U.S.C. §1114.

Additionally, your use and display of these works may cause or has caused confusion and mistake among purchasers thinking that these are the Work or derivatives of the Work, in violation of 15 U.S.C. §1125.

In light of the above, I must insist that you immediately cease and desist from all further use, making, offering for sale, sale and display of all artwork that is confusingly similar to the Work, and to cease advertising and promotion of such works.  Please notify me in writing that such actions have been taken.  

Alternatively, you may request a grant of limited and non-exclusive use rights which would require that you pay a license fee (among other terms), all of which would be the subject of a separate agreement.

If I have not received your response by [date], this matter may be handed over to my attorneys for further action and additional expense for which you could liable.

Sincerely,
Name of artist
address
city, state
web address
email

If readers of ASK Harriete would like to copy this letter for future reference, I am giving you my permission for future use.

Metalgramatic © 1986
from Critic's Choice
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

If you have additional suggestions to improve this sample letter, please don't hesitate to add a comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

Harriete
www.harriete-estel-berman.info

 

 

Cease and Desist letters - A "kinder, gentler" example to help artists and makers protect their work.

Discovering that someone else's work is uncomfortably similar to yours can be jarring.  Why would they do that?  It is not flattering -- you feel violated. That copycat is taking something away from you.  They are benefiting from your hard work and hard-earned reputation.   

It would be wise to step back from the emotions and take a critical look at the situation.  Ask yourself if it is really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends for an honest assessment.  It may be time for you to evolve your own efforts toward more unique work.

   Eye of the Beholder © 2009
   Recycled tin cans
   Artist: Harriete Estel Berman 

However, if the other artist's work is just too much of a coincidence, you should take some action.  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the internet to search and start asking around. 

It surprises me, but even with mounting evidence of an imitator, many artists and makers are reluctant to assert themselves for fear of hurt feelings or being labeled a "mean person."

While you have likely heard that there is no such thing as a "nice" Cease and Desist letter, there are occasions when an artist should consider approaching another artist with sincere concerns to protect their work from copycat work or   coincidence.

You can raise the issue and awareness without being confrontational. 

Below is a sample letter for politely approaching an artist who is doing work uncomfortably similar to yours.  (A more formal Cease and Desist Letter will be in the next post.)  Simply letting them know that you are aware of the similar work may be enough for them to change direction.

Make your own modifications to this sample letter as necessary for your circumstances. Suggestions are in brackets.

sample letter

Date: (Month Day, Year)

Dear [fill in name here],

I am a/an _______  [pick one: artist/ maker/ craftsperson] working  with ____________________ .  [Describe your materials or design style and how long you have been working in this style or with this media.] 

Last week, ___________ [pick one: Google Alerts, a fellow artist, book, magazine, etc.] brought to my attention that you recently published an image of work that appears to  ____________ . [Describe the offending aspect that you feel copies your work without being rude or insulting. Stick to the facts.]

I have been working with this _______ [material, media, style] for the past _____[number] years while your use seems to have been launched more recently.

At this time, I respectfully request that you discontinue this particular line of work that so closely resembles my work. The fact that your work is so similar, significantly increases the possibility of confusion between my work and yours.   Most galleries, exhibitions, and collectors will avoid showing or buying work that appears to copy an earlier artist's prior work.

Whether the similarity in your work was intentional or coincidence, I hope that this notice will allow you to rethink your efforts.  I sincerely believe that each artist will achieve their best work by finding a unique path that provides long term growth and personal expression.  Please consider taking your skills in another direction.

I would like to resolve this issue between the two of us without further publicity or involving formal legal action.   Please email me or give me a call at ____________ [telephone number].

Thank you in advance for your cooperation.

Sincerely,

Name of artist
address
city, state
phone number
web address
email address

This is the "polite" approach. If readers of ASK Harriete want to copy my sample letter for future reference, go right ahead.

I also recommend that you use the Internet as a tool by setting up Google Alerts for your name, titles of your work, materials or techniques so that you can catch copycats early.  And when you find one, at least send this polite letter of concern. 

If you have additional suggestions to improve this letter, please add your comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

A sample of a more formal Cease and Desist Letter will be provided in the next post. Future posts will cover legal protection and other recent points of discussion.

Harriete
www.harriete-estel-berman.info

Designing to Avoid Copycat, Copyright or Coincidence.

Previous posts discussed the problem of copycat work. I hope that you have had a chance to read my Opinion article titled "COPYCAT, COPYRIGHT or COINCIDENCE" in the January issue of Metalsmith Magazine, Volume 30/No.1/2010.

  Earrings © 2010
  Recycled Game Board
  Harriete Estel Berman

While researching for this article and interviewing artists and makers, several suggestions surfaced about how to design your work during the creative and fabrication process to avoid copycats or, at least, minimize the chances. The suggestions below are meant to be approaches or methodologies during the designer's or maker's creative process.  Legal methods such as a Cease and Desist letter and applying for a copyright or trademark will be covered in another post.

1) Avoid using any commercial kits, forms, patterns, molds, glazes, etc.  For example, PMC (Precious Metal Clay) makers can buy patterns to emboss textures. If you can buy these patterns so can other people. Same goes for patterned metals, pre-printed papers, etc. Create as much original materials for the fabrication of your work as possible.

  Plexiglas Beads I made for new work
  © 2010
  Artist: Harriete Estel Berman

2) Use more unusual materials that you find from obscure resources or make yourself.  For example, using beads purchased at Michael's art and craft store means that anyone else can buy the same materials. While it takes greater effort to create each and every component in your work, the resulting unique pieces make it far more difficult for other people to duplicate your signature style. In other words, make your own beads, paper, colors, patterns, glazes, etc. from start to finish. 

3) Reinvent your materials. Even taking common every day materials and using them in new innovative ways can create a signature style.

4) Make your work more complex and detailed. This will eliminate many would-be copycats who don't want to invest the same amount of labor or tedious effort.

  The Dilemma of Desire © 1997
  Recycled tin can candy box
  Artist: Harriete Estel Berman
 Top of box in Photo
  Candy box hold tacks that look like
  M & M's - available on Object Fetish

5) Continue to innovate and develop within your own signature style.  Continuously repeating one style, fabrication method or technique without growth allows other people to catch up.  Constant evolution is the key!

6) Develop mastery and expertise in your own techniques. Working with the same materials over many years with constant innovation can lead to mastery of skills and expertise that would make it impossible for others to copy your signature style. 

  The Dilemma of Desire © 1997
  Recycled tin can candy box
  Artist: Harriete Estel Berman
  Inside view of candy box.

7) If you work with commonly available materials (that anyone can find, buy or cast) you will have to make more work, better work and be better at your own publicity and promotion than anyone else.  You can't depend on copyright as a protection.

 

8) If you work with historical forms and symbols (such as Celtic Circles, as just one example), it will be difficult to develop a signature style or identity. Try to develop your own vocabulary of forms.

9) Don't teach workshops in your signature style.  I know this isn't going to be a popular statement.  Workshops are great for teaching a wide variety of skills, but I'm shocked when someone teaches their signature technique or style.  They are teaching a whole room of people to be copycats.

 Words Like Winter Snowflakes (pins)
  © 1999-2004
 Recycled tin cans, brass, s.silver,
 Artist: Harriete Estel Berman
 Pins can be worn as a group,
  individually or rearranged.

What else can artists do in the design of their work to prevent copycat work?

 Words Like Winter Snowflakes
 © 1999-2004
 Recycled tin cans, brass, s.silver rivets
 Artist: Harriete Estel Berman
 Photo Credit: Philip Cohen

Do you have ideas to share about how to prevent copycat work? Please share you ideas with others as a comment. 

Harriete

www.harriete-estel-berman.info

   

 

Copycat, copyright or coincidence - simple steps for prevention.

This is the second post regarding the 2010 Winter issue of Metalsmith Magazine, Volume 30/No.1/2010 in which I wrote an Opinion article  titled, "COPYCAT, COPYRIGHT or COINCIDENCE". This post discusses some of the steps that can be taken to prevent or resolve problems of copycat, copyright or coincidence. 

After many interviews, I now realize that artists and makers too often lack confidence and knowledge about what actions can be taken to reduce or confront imitations.  I was especially surprised to learn that many artists are reluctant to take any action at all .  It makes them uncomfortable or they do not want to be viewed as a “bad guy.”   This has got to change!   

Would you stand in line and let someone step on your toes? Would you let them push you out of line? Wouldn't you say something? Letting a copycats infringe your own signature style is a very close parallel.

Artists and makers can take simple and inexpensive defensive measures to protect their designs and techniques.  No matter how the imitator got there, whether copycat or coincidence, the imitation looks like copyright or trademark infringement to me and everyone else.

1) Academic programs, workshops, and instructional books must make this issue part of their curriculum.  Any mentor or teaching forum should clearly state that copying is not ethical and should encourage students to create their own identity. 

2) Each artist and maker is personally responsible and must be an advocate for his or her work. Artist’s should not be bashful or reluctant to stand up for their work and their livelihood.

3) The artist should send a copy of a Cease and Desist letter to every exhibition, gallery, show, wholesale/retail event or book that displays copycat work that infringes. 

4) No exhibitions or craft shows should admit work that is a "copycat" in nature. This includes student and emerging artist shows. While this is impossible to implement 100 %, jurors have a responsibility to be well informed about their field. It is also very helpful to appoint jurors to review work within their field of expertise. For example, I would not be a good juror for a glass show as this is not my area of expertise.

5) Finally, everyone can help. Copycats should not be allowed to hide in broad daylight. Raising awareness is the most effective remedy.  Whenever or wherever anyone sees copycat work, tell the gallery owner, exhibition sponsor, or website owner about it.  Most professional venues value their reputations and will remove copycat work that is brought to their attention.

The next post suggests modest changes artists, designers, and makers can make to the  design and fabrication of their work to help prevent and protect your work from copycats and/or copyright infringement.

Harriete
www.harriete-estel-berman.info

Lifesaver Bracelet - Identity Collection
© 2007
Recycled tin cans,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
more info

Copycat, copyright or coincidence? An Opinion in Metalsmith Magazine

In late January 2010, the winter issue of Metalsmith Magazine, Volume 30/No.1/2010 includes an Opinion article that I wrote titled, "COPYCAT, COPYRIGHT or COINCIDENCE". This publication should be at your newsstands or waiting in your local library.  Subscribers of Metalsmith already have their issues.

I hope you get a chance to read the entire article in the magazine, but to facilitate a dialog on this blog, a summary of the opinion is presented below.

How often have you said or heard, “That looks just like . . . (some other artist’s) work.”   The arts and crafts community is suffering from “copycat-ism” or more accurately, infringement of intellectual property or copyright infringement.  It is infecting the entire art and craft community, from schools and universities, to wholesale/retail shows, stores, galleries, books and even award competitions.

The problem is not new … but the Internet has given this issue greater visibility, and at the same time, a viable path for advocacy to confront this issue.

For years major craft shows have grappled with this problem.  But what about other situations such as commercially oriented wholesale/retail shows, galleries, websites, or other market venues?  What about knock-off manufacturing?  In my research for opinions, it seems that some imitators actually justify production of copycat work with the fact that the originator is not in the same show.  GASP!  I envisioned the guys at Times Square showing me “Authentic Rolex” watches from the inner lining of their overcoats, or Gucci bags at a flea market. So who loses? Actually all of us are hurt by this practice. 

The remainder of the article goes into more details and outlines how we can help our community.  In the next few posts, I will be offering a practical action plan, a few tips on how you can prevent this from happening to you and two samples of Cease and Desist letters.

Vigilance and vocal opinions are necessary to help inform the arts community.  Please share your tips and suggestions with others as comments below this post and upcoming posts.

Do you have any experiences with copycat, copyright, or coincidence? I think the only way to deal with this is open discussion.

Please feel welcome to leave a comment below.

If you have a lot to say (especially if you have images of originals and copycats or look-a-likes, as examples) you may ask to be a "Guest Author".

Harriete
www.Harriete-estel-berman.info 
 

Copyright, Fair Use and Baseball Cards

Dear ASK Harriete, 

I like to make collages. I have a ton of sports cards I'm trying to get rid of.  If I take the player out of a sports card (several different cards with same player let's say) and make a collage and then sell the collage along with the cards I used to make the collage is this an infringement of some kind of copyright?   I know some people put several cards together and sell them as a collage but I only want to use the player portion of each card with a different background and, as I said, would include in the sale the exact cards I take the player from along with the collage photo.  

Thanks,  

Batty about Baseball Cards

Dear Who's On First;

Creating collage for personal consumption or within a classroom for educational purposes is fair use expression under copyright law.    Selling, exhibiting, or publishing a collage as your artwork may not be fair use if it is an obvious derivative of the original and competes with the commercial purpose of the copyright holder.

However, your situation seems a lot simpler since there has been a long tradition of third party buying, trading and reselling sports cards.  The copyright holder (the original printer of the baseball cards) has accepted the practice of reselling cards.  You legally own the cards and have chosen to resell your cards, perhaps in a cropped or modified form.  It is likely that you could not obtain a copyright for your collage of the baseball cards, but you are not infringing on the original copyright owner either.  Consequently, in this particular case, I don't see a problem.  Go for it! 

For most collage artists, I would suggest reviewing the Fair Use Guidelines that I posted in May 2009.  If you expect to exhibit or sell your collage, then you need to pay attention to fair use criteria.  A collage of images from public media, even from purchased media, is not guaranteed to be fair use. 

Fair use does allow quite a wide range of expression.  I especially encourage artists to include their own voice, artistic vision or commentary within their art or collage.  A crucial element of fair use is the extent of transformation.  Just cutting images and pasting them together isn’t really adding that much artistic contribution or transformation.  It would be better within the concept of fair use and artistic integrity if the collage made some larger statement such as (and these are just a few baseball related examples):

• A commentary about celebrity

• Super-hyped salaries of athletes

• Marketing and consumerism of sports

If you want some more insights on fair use collage take a look at a fotolia.com blog post in December 2006.  

Harriete
www.harriete-estel-berman.info

 

Jewelry from found objects that are medical devices? Am I committing patent infringement, or worse?

Quick Set, Diabetic for life Series 2008
Silver, garnets
Photo credit: Adrian Ordenana

Dear Harriete,
I make castings of some diabetic pump sites that I use personally.  I have made a few jewelry pieces out of them, and was wondering if I might get in trouble for using them? Could the company sue me?

Kelsey Simmen
www.crafthaus.ning.com/profile/kelseysimmen

Kelsey,

I assume that you are not using the actual operating pump as jewelry, but casting some of the parts to be used as abstract forms or decorative elements. You are not:

• selling the diabetic pump,
• competing with the pump manufacturer by producing or selling a similar diabetic pump
• confusing the consumer that purchases a diabetic pump for medical purposes.

Silhouette, Diabetic for life Series 2006
Silver, garnets
Photo credit: Adrian Ordenana

Your jewelry appears to be transforming the diabetic pump into a decorative piece of jewelry.  You are making a commentary about the decorative value of these pumps and the statement appears to involve the idea that people wear diabetic pumps without thinking about their decorative possibilities. You are publicly revealing the diabetic pump that is usually hidden underneath clothing, etc., to create a conversation about what we wear and why we wear it.

Little Quick Set, Diabetic for life Series 2008
Silver, garnets
Photo credit: Adrian Ordenana

For all these reasons, I don't  think that a diabetic pump manufacturer should be concerned with your "fair use" of a component of their device in this new and thought provoking fashion (pun intended).

One more suggestion.  Change your materials description for the photographic image to silver and garnets as shown here (below the photos).  Eliminate the reference to "silver casting" (most people don't care whether it is cast or not) and the casting technique is irrelevant to the concept behind your work.

Also eliminate any reference to a specific brand name or trademark name of the manufacturer in the description. This is not to hide identity but to avoid the appearance that the company endorses your work in any way.  In your artist statement include information about the reason for using diabetic pump parts. If the pump manufacturer is important to the concept you could include that information.

Hope this information helps you feel more comfortable continuing with this series. It seems like an idea worth pursuing in depth and with continued evolution. You also might consider submitting your work to an upcoming book opportunity from Lark Books titled:  500 Silver Designs. This is discussed in the previous two posts, Part 1 and Part 2.

Harriete
www.harriete-estel-berman.info

Do I need to copyright my work? - Part 2

Can I copyright my work?  In Part 1, I stated, "if you created the work, you own the copyright - automatically."  But a more basic question is whether your work can be copyrighted at all. 

I have been quite surprised at how far out of date the Copyright Office seems to be about what is a copyright-able artwork.  My experience is that they have very narrow definitions of copyright for art or craft objects. 

Original Enough for a Copyright?  Years ago I submitted one of my chairs to register my copyright. The filled-in form and check were sent in by mail.  A few weeks later my application was rejected. My chair made of recycled tin cans was not considered "original."

No matter, I don't think that any one could copy my work even if they wanted to. I've been working with tin cans for 21 years....my repertoire of skills and techniques have evolved over the years.

What does matter.  This is exactly the point that I want to make to all the artists and makers out there in the world of creativity. You need to keep developing your unique repertoire of skills, design and aesthetics so that no one can copy your work. Their "copies" will be poor copies at best. Keep moving on.

One aspect of making your work difficult to copy is to fabricate your own designs, from beginning to end, from the concept through the fabrication.  If you are worried about someone copying your work, resist the impulse to purchase pre-fabricated materials.  If you buy the amazingly beautiful pattern sheets from David H. Fell and Company, so can other people.  Same thing goes with the textures, patterns and templates available for PMC from Cool Tools  These are just two examples. Many companies sell these types of pre-fabricated items in all medias for purchase and assembly. While these are all wonderful tools and quick design solutions, they are not unique and your work can easily be copied by another maker.

Scrap booking would be another example. There are tons of beautiful borders, stickers, papers, decals, scissors, collage books, etc. to make beautiful objects, but they aren't sufficiently unique or original if you use purchased materials.  If you want to consider your art work as original, it would be wise to steer clear of any purchased items and create your own images.

I am not dismissing the beauty of the many products offered for crafters.  Many of the options available to makers such as bezel wire, textures, pattern sheet, findings, papers and more are intoxicating, attractive and free of copyright license fees, but they aren't your designs. Anyone can use these designs and patterns. Same goes with paint, glaze, stain, fabric, thread, wool, or any purchased designs or patterns in any media. Develop your own materials, techniques and skills.

If you think this is an obscure issue, it is not. A few years ago I was teaching a professional development workshop and was asked by a maker how he could protect his jewelry design when he was using the PMC (Precious Metal Clay) pattern sheets.  It did not occur to him that the idea of protecting the copyright of his work was a moot point when he was creating a texture from a purchased silicone texture tool that anyone can buy.

Artists and makers who have developed a reputation for their work as unique and special have developed their own techniques, methodology, designs, aesthetic and more.  Applying to register your copyright may be appropriate in some cases, but even if accepted, it is not the panacea that many people are lead to believe.  Personally, I have a lot more faith in artists and makers who constantly evolve and improve their work.

Harriete
www.harriete-estel-berman.info

 

Do I need to copyright my work? - Part 1

By law, if you created the work, you own the copyright - automatically.  As the copyright owner you and only you have the right to grant or deny permission for others to copy your work, whether or not you file any forms with the Copyright Office.  In the vast majority of situations, the most practical approach is to simply archive a set of dated photographs of your work. 

So the real question is, Should I register my copyright?              

Registering your copyright does cost money (a minimum of $35 per application) paid to the Copyright Office.  Registering provides an official date and legal foundation that you own the copyright.

But here is the real problem! Whether you register your copyright or not, if someone starts copying, i.e. infringing, on your copyright, the burden of stopping them is entirely your responsibility.  You will need tons of money or a lawyer in the family - or an amazingly good case so that a pro bono lawyer will take on your case for free. All of these are possible but not likely for most of us.  You have to be willing to invest a lot more than the registration fee to seriously defend your work.  At a minimum, you should send a "cease and desist letter" either on your stationary or the stationary of your lawyer to see if this will scare off the offending party. You can send a "cease and desist letter" as the copyright owner whether you registered or not. 

So, should I register my copyright?  Is it worth it?  If you believe that your work will be duplicated commercially, then I would recommend registering your copyright.  Otherwise, I have a few suggestions and alternative perspectives in Part 2.

Harriete

www.harriete-estel-berman.info

 

Can I use another artist's work in my collage without copyright infringement?

 

       Bunny in Wax
       Saundra Lane Galloway

Harriete,

I've been enjoying your blog. The information you provide is wonderful! I actually DO have a question about copyright. I have two pieces I did with bunny images that I think came from paintings in a magazine. They are wax collages I did in a workshop I was teaching as examples during class. It has been awhile, but if I remember correctly they were from paintings that were in magazines. Since the images are so recognizable, would I be treading on trouble if I were to try to sell them? I usually work exclusively from my own photos as I paint and collage, but these are unusual for me. I won't try to sell them if it is a copyright infringement, just curious...Thank you!

Sincerely,

Saundra Galloway

 

 

Bunny in Wax 2
Saundry Lane Galloway

Dear Saundra,

Using the original bunny image for personal use or as a demonstration for educational purposes one time and for a limited audience is O.K.  -  but now you want to sell this "sample" collage as YOUR ARTWORK, hmmmmmm…… this gets into a gray area.  

 

To summarize your question:
How can you tell if the use of another artist's work is copyright infringement - or is it Fair Use?

I'll refer to my Fair Use Guidelines to give you my opinion.  #1) Is your artwork transformative? To keep within the boundaries of Fair Use the image or its context must be significantly altered.  If you used the bunny image so that it was for bunny texture as background (with other items collage-ed on top) or you wanted only the line or shape so that the original bunny artwork was no longer recognizable, that would be much better.  I don’t think the medium (in this case wax collage) is a significant factor in the transformation.  It also appears that you simply placed the original bunny image intact on a new background - yes, a different context but not much transformed. 

The second test (#2 No confusion) would be if the consumer might be confused. If people who are familiar with the original artist's bunny style might think that your artwork is by the original artist, bad news. Another conflict with the Fair Use Guidelines.

The third test (#3 Commentary and Parody) is very important.  To be Fair Use, your bunny image must make a commentary ABOUT the original artwork.  It is not Fair Use to copy another artist's image simply for convenience.  It appears that you liked the image, copied it, (or ripped it out of a magazine) and placed it in your artwork without any intent to parody the original image.  The significant issue here is the lack of COMMENTARY about the original image.

On the last two tests (#4 Non-commercial intent and #5 No sponsorship) you are probably safer.  Even though you want to sell your artwork now, you do not intend to compete with the commercial purpose of the original image.  And you have not implied any sponsorship or endorsement from the original copyright owner. 

Taking all the Fair Use Guidelines into account, it sounds like you did not significantly alter the found image, the bunny image is obviously THE ORIGINAL ARTIST'S work, and there is no commentary about the original bunny image.  Consequently, I would not sell the collage, but you could continue to use it as an educational example.

Next time you need an image, it would be better to draw the image yourself or find an image that is copyright free. Copyright is for the lifetime of the artist plus 75 years so a bunny drawn by Leonardo da Vinci would be copyright free. There are also books, CDs and web sites with copyright free images specifically for this purpose.

Perhaps you can use the bunny in wax collage as a prime example of copyright problems using found materials for your students.  Each of the guidelines COULD be argued differently, but as a leader in the art community, I'd suggest that you take the high ground and demonstrate by your actions how future artists should treat the work of their fellow artists.

Thanks for your question,
Harriete

 

Where's Andy Warhol when you need him?

LARK Books recently put out a call for entries for an upcoming book about using found materials to be published in their popular 500 series.

The book to be titled, 500 Found-Object Works,  is scheduled for release in Fall 2010. I waited until after the postmark deadline of March 15, 2009 to avoid affecting the number of entries to the book, but there was a very disturbing proviso in the call for entries.  It said,

"Due to trademark considerations, very few works featuring recognizable brand names or logos will be accepted."

I and perhaps many others could infer from this comment that if you sent work with recognizable trademarked logos or brand names that you would likely be rejected and would not be included in the book.  That is what prompted this thought. Where is Andy Warhol when you need him?

                   Campbell's Soup Earrings
                       Harriete Estel Berman

Andy Warhol made himself famous by using the iconic Campbell's soup can label for his signature image. His Brillo boxes are another example. Didn't Andy Warhol's precedent  clearly demonstrate acceptable Fair Use examples of using trademarks and brand names in art?  Apparently, we are taking big steps backward instead of forward.

It is disturbing that a publisher has self censored all art or craft that depicts trademark and copyrighted images, especially a book about found materials, before the images of work were even submitted. This is despite the long history of Fair Use and the world famous precedent established over forty years ago by Warhol.

Yes, the doctrine of Fair Use has some specific requirements to be applicable. Yes, I understand that the book publisher needs to be concerned about copyright infringement when they publish a very popular book.  But it sounds like the lawyers are running the company instead of the editors and curators.  Freedom of speech is a highly valued privilege of the United States which just got silently stepped on.

Lark Books could have issued a set of Fair Use guidelines to help artists understand the law and let artists know that submitted work would be subjected to Fair Use considerations.  Then after prospective work is selected but prior to publishing, the lawyers could veto infringing work, if any. That is one way it could be handled.  

There must be other alternatives.  But it seems like paranoia and excessive fear have narrowed our lives more than we might realize.

Now I wonder how the book can possibly be as powerful or as interesting when this "don't even try" censorship has been stated in advance to all potential artists and makers. 

I use found materials all the time and feel very comfortable working within the Fair Use doctrine. What are the rules governing Fair Use? Read ASK Harriete Fair Use Guidelines in a recent post and look for other posts about copyright law and Fair Use on this blog.

Best Regards,
Harriete

www.harriete-estel-berman.info  

Fair Use Guidelines

While some people may be fascinated by the nuances of Fair Use legalese, most of us just want an easy checklist that we can understand. 

Here are five simple Fair Use Guidelines for copyrighted work that help me focus on the issues. 

1) Transformative 
Your artwork should substantially transform any copyrighted work, i.e. not a copy.  The degree of transformation does matter - the less it looks like the original copyrighted work, the better.

2) No Confusion
Your artwork should not be easily confused with the copyrighted work.  Consumers especially should be able to instantly distinguish your artwork as something different from the commercial purpose of the copyrighted work.  

3) Commentary or Parody
Your artwork should make a comment or parody of the copyrighted work.   The commentary may be flattering or critical.

4) Non-commercial Intent
It's OK to sell your artwork, but the artwork should not have a commercial intent that would compete with the commercial purpose of the copyrighted work.     

5) No Sponsorship
Your artwork should make no suggestion that the copyright owner endorses or sponsors the artwork.  

Ideally, all of these Fair Use Guidelines should be applied to your artwork - but exceptions do occur.  Most of this is common sense.  Fair Use under copyright law not only permits but is intended to encourage a wide range of possibilities. Be creative!. 

Hopefully, for most people, these five guidelines will be a fast and easy reference.  If you want further insights, a series of posts on this blog provide examples and links to other reference material.  

If you have information that you would like to add to these Fair Use Guidelines, either comment here or email me. I'd like to develop these Fair Use Guidelines into a Professional Guidelines topic in the future and could really use your help, insight and examples.   

Harriete

www.harriete-estel-berman.info

Fair Use and Copyright Infringement - No Confusion

Artists who use copyrighted material in their artwork are often concerned about whether they have violated the copyright of the original source material. One of the key principles of Fair Use is avoiding consumer confusion between your artwork and the original copyrighted work.  Here are a few examples to illustrate the issue.

Infringement Examples
In a recent case, J.K. Rowling won a copyright infringement law suit against RDR Books and Steve Vander Ark, the author of "The Harry Potter Lexicon" - a so called encyclopedia based on the Harry Potter series of books by J.K. Rowling.  The judge ruled that the encyclopedia was an infringement because "The Harry Potter Lexicon" could confuse the consumer.  The text did not contribute enough original content and was not sufficiently transformative -- it was an obvious derivative of the copyrighted work. This legal decision prevented the publication of the "encyclopedia" as a book in its original form -- but see the UPDATE below.  [Ark still maintains a website.]

In the 1992 case of Rogers v. Koons, the ceramicist, Jeff Koons created a sculpture titled, "String of Puppies" based on a black and white photo taken by Rogers titled, "Puppies." Koons openly admitted that he used the photo as the basis of his work.  The court ruled that the sculpture infringed on the copyrighted photo because it was an obvious copy and substantially similar. Koons contributed no original content or commentary to the photo. 

Fair Use Example
In the case of Kelly v. Arriba Soft, the court ruled that "thumbnails" or small images used by Internet search engines and other websites to help guide users to other content is Fair Use.  Kelly owned a professional photography website and objected to the thumbnails. In the court's decision the integrity and marketability of Kelly's images were not infringed upon because the thumbnails were transformative and would not confuse consumers seeking quality images. 

Do you have any questions about Fair Use in regard to your work? ASK Harriete.

Harriete

www.harriete-estel-berman.info

UPDATE regarding The Harry Potter Lexicon

I received a very informative email from RDRBooks stating that they have in fact published a revised version of the Lexicon.  The judge in the case in his decision in 2008 also issued a "roadmap" on modifications that would allow the Lexicon to be published within the Fair Use doctrine.  In the revised version, Ark added about 600 original commentaries to the 2,300 entries.

Also noted was an article titled, “How Fair Use Prevailed in the Harry Potter Case,” available for free download from the Association of Research Libraries and the American Library Association.     

Fair Use - Is your work "transformative."

I think it is important for artists to understand Fair Use so that instead of being intimidated by copyright law, they are inspired by the use of found materials. The concept of Fair Use has a long history and is intended to advance and stimulate creativity.  When you use copyrighted material in your work, the finished product must be transformative.

Transformative means that the original use, purpose, or intent of the material has been changed significantly into something substantially different in both appearance and objective. In my work shown here (as an example), the sculpture titled, 3M & m Candy Dispenser, the original tin can packaging for 3M Scotch tape, electrical tape, Scotchgard, and Spray Mount have been re-purposed into a candy dispenser as a pun on the words 3M and m & m candies.

Another example of transformative work is shown (below) from Emiko Oye.  On the left are two views of an original Boucheron Necklace designed for Maharajah of Patiela (circa  1928). 

On the right, Ms. Oye has recreated the design in LEGOs.  She has transformed the original design and made it in her own style.  In addition, the LEGOs themselves have been transformed beyond a children's toy into social commentary and a unique appearance.

Further examples of Fair Use under Copyright Law will be continued in the next posts including important points for jewelry artists to consider. 

Harriete
www.harriete-estel-berman.info

Cease and desist letters designed to scare artists.

There are occasions when artists use (or should I say "reuse") found materials in their artwork.  This could be the image of a cartoon character, famous person, tin cans (like me), or even candy wrappers like Charlotte Kruk. The use of copyright protected materials is legally protected under the concept of Fair Use. (Read more about the concept of Fair Use in previous blog entries.)

Sometimes large companies threaten artists who have used copyright protected materials in their art by sending a Cease and Desist letter. This is what happened to artist Charlotte Kruk.

Miss Charlotte makes sculptural clothing out of discarded product packaging as her artwork. (Check out her web site.) Typically, the material is literally public trash that she sorts and assembles into artwork.  The photo to the right shows an amazing outfit constructed from TIDE boxes.

Some of the artwork by Miss Charlotte uses candy packaging such as in a costume titled, Snicker Nickers (below).  After working with candy packaging for several years, Miss Charlotte received a Cease and Desist letter. Very scary indeed.

Cease and Desist letters are designed to scare a person into submission. First the letter arrived by Certified Mail, Return Receipt Requested. The letter was printed on stationary from a large N.Y. City legal office with the names of 111 lawyers in the letterhead alone.  I am not exaggerating, I counted the number of lawyers.  It is intended to intimidate the receiver from beginning to end.

The text of the letter goes on to describe an alleged legal infraction of using the candy wrappers. The lawyers for the large candy corporation define the use of the candy wrappers as unacceptable, along with numerous details. Page 2 says:

"Therefore, we request that you immediately cease designing clothing made from these wrappers and turn over to our office for destruction by August 13, 2001  all designs using our client's candy wrappers that you have remaining in inventory."

How would you feel receiving this threatening letter and suggesting that you turn over your artwork for destruction? Most artists don't have a lawyer on retainer, a budget for legal fees or any money at all to pay for a legal defense of copyright infringement.

Ms. Charlotte was paralyzed for years.  Scared into "artist's block", literally.

Well, I am happy to say that Miss Charlotte has no less than the United States Supreme Court on her side.  Fair Use of copyright protected material is entirely legal, even if a thousand lawyers try to intimidate the artist or maker.  Furthermore, you are not required to take any action or cease any action until a judge declares so.  

In a series of blogs, I will discuss the major factors that provide Fair Use protection for artists and makers.  But my main message is, DON'T BE INTIMIDATED!

Eventually, Miss Charlotte got unfrozen and made a new clothing sculpture out of M & M candy wrappers (again from public trash).  It's a Matador Costume, titled "The Reign of the M & M" perhaps to take on the bull of Cease and Desist letters. 

Have you ever received a Cease and Desist letter or something similar?  It would be interesting to hear your story. Share you experiences by telling ASK Harriete.  

Understanding Fair Use in Copyright Laws

Copyright Laws and the concept of Fair Use.

Many artists and makers who use found materials in their work are concerned about copyright infringement. Legitimate use of found materials is sanctioned under the concept of Fair Use within the large body of Copyright Laws.

There are several key provisions to protect artistic work under the umbrella of Fair Use.

Perhaps the most useful and easily understood principal of Fair Use is whether the artist's use will be confused with the original copyrighted brand name or product.

The Dilemma of Desire 

For example, I used tin cans from SLIM FAST products in a candy box titled, The Dilemma of Desire. There is little chance that this work would confuse the consumer or hurt the brand name SLIM FAST.  

Fundamentally, Fair Use allows and encourages "creativity for the enrichment of the general public," but does not permit use that would supersede the original for reasons of personal profit.  In legalese, the use must be interpreted as transformative, not merely derivative.  In plain English, the artist or maker must change or modify the original enough to create something clearly new and different.  

So what is enough difference?  Obviously, copying a book, music album, or movie and changing its cover is not enough.  Sometimes the fine line may be somewhat gray.  Jeff Koons lost his claim of Fair Use when he made a three dimensional sculpture based on another artist's photograph. In this case, he sent the original photograph to the manufacturer to construct the sculpture.  In essence, he made a near copy of the original.

So as long as your work transforms the original content or intent to create something new -- whether you add, subtract, modify, or distort -- you're probably OK.  Just don't copy someone else's work and call it yours.

Harriete

Coming up...

What's the difference between parody and satire?  One is Fair Use and the other isn't. 

Stay tuned for the next blog about copyright issues for artists.

How can I protect my designs?

Dear Harriete,
I am Ms.Chie Kudo, a member of SNAG living in Japan.
I will exhibit my work at a kind of jewelry trade show. I am afraid that my design will be copied by buyers or other jewelers without my authorization. To minimize such chance, I think I need to have proper knowledge about the intellectual property rights.

Sincerely yours,
Chie Kudo

Dear Chie-san,

There is no guarantee that people will not copy your ideas.

However in the United States you automatically have copyright to protect your work.  The copyright is for one design idea or one series. The tricky part is that unless you officially file a Copyright Form with the U.S. Copyright Office you can not protect your ideas or design in court. In other words, you can not take a copyright infringement case through the legal system (filing a complaint against the offending party) without having previously filed the official Copyright Application Form and the Copyright Office has to grant you the copyright.

To get a Copyright, you need to fill out a Copyright Form online or by using a paper copy and mailing it in. This must be accompanied with a payment. Online is supposed to be faster, and costs $35. If you fill out the paper form and mail it by regular post it will take longer and it will cost more.

This is the address for the online form in case the links above do not work for you.http://www.copyright.gov/forms/

There is no guarantee that the copyright will be granted from the U.S. Copyright Office despite the fact that you paid the money. (The money will not be refunded if they refuse to give you a copyright.)

The U.S. Copyright Office will only grant the copyright if they decide the design is a unique copyright design or idea. While the art and craft world consider all ideas inherently unique, the U.S. Copyright Office personnel are not artists or art critics. Their idea of what is unique lags way behind the arts and crafts world.  (This is just my personal opinion.)

If you get the official Copyright approved for your design, and a person/business infringes on your copyright, the official Copyright you paid for still doesn't protect your work unless you take the offender to court.

This will cost a lot of money, but you may decide that this is worth the investment.

If you do not apply for a Copyright, or do not receive a Copyright from the U.S. Copyright Office for the design, you can not take the person to court effectively even if they stole your idea.

Keep in mind, that you automatically have Copyright by law for your unique idea or design. For this reason, you could always send them a "cease and desist" letter that either comes from your "desk" or from you lawyer's desk. In essence, a "cease and desist" letter threatens the person (in a polite, firm and business like manner) that you will sue them if the do not stop copying your design. 

Keep in mind that the "cease and desist" is only a threat. (Read more about "Cease and Desist letters" in a future blog.)   It is just like "yelling" at the person on paper hoping that they will stop using your idea. Maybe they didn't even know about your design ideas or they will feel threatened enough by the "cease and desist" letter to stop. They may not even realize that they are infringing on your unique design or ideas.

The best protection for your ideas is constant innovation. The more your work reflects your unique aesthetic and technical innovations the less likely that person can or would copy you.

Sincerely,

Harriete
www.askharriete.typepad.com
www.harriete-estel-berman.info

Ring photo Courtesy of Chie Kudo

Where do I find a COPYRIGHT APPLICATION?

The U.S. Copyright Office is now accepting electronic filing of copyright registrations.

Advantages of using the Electronic Copyright Office (ECO) system include:

• Lower filing fee of $35 for a basic claim (for online filings only)
• Fastest processing time
• Online status tracking
• Secure payment by credit or debit card, electronic check, or Copyright Office deposit account

The U.S. Copyright Office offers a great tutorial and supplemental information about Copyright. Before filing online read the eCO Tips, eCO FAQs, and the eCO Tutorial which are listed on the opening page.  The information is presented as a PowerPoint type presentation which is easy to follow though it takes a little time.

ASK Harriete

Fair Use and Copyright Issues for Artists

Dear Harriete,

I was wondering what you think about copyright issues regarding the printed images on metal that you use?
I am concerned about copyright infringement when so much of my work is collage. For  example, when I submitted my dinosaur book titled "7 Extinction Events" to 500 Handmade Books by Lark Books, it was a concern whether I could comply with their requirement that we own the rights to everything in our books. 

Concerned Collage Artist,

Judy Hoffman

 Judy,

I have no problem using the recycled tin can materials and subsequently the images on the material in my work. As an artist I think that my work alters the images on the recycled materials sufficiently, not just in appearance but because of the reasons that I use this material and the concepts in the work.  The reason that I use the materials are multiple, but include the premise of using recycled materials, and a commentary about our consumer society. This is in addition to the content within the specific piece. To the right above, you can see my book "Let There Be Light" included in 500 Handmade Books.

There are many examples of artists working with found materials dating back to Dada in the early 20th century all the way to the present. The primary issue that protects artists from copyright infringement is the concept of Fair Use within Copyright laws.

Below is a description about copyright and fair use.

Copyright law covers trademarks, trade names, personal names, publicity, rights and images of people even after they are dead. Copyright and trademark issues are often discussed together.

 

Fair Use Issues for artists related to Copyright   are described below:

• Fair Use is a limiting concept.
• Fair Use is used in defense of copyright infringement so the artist/defendant must be able to prove that the use of copyrighted material was designed to be a criticism or commentary. 
• Fair Use must be a parody not a satire.
• Fair Use in the artwork must be trans-formative. 
• In considering the concept of Fair Use of copyrighted materials in your artwork, the famous brand name or trademark, for example, should not suffer damage from the artist’s commentary or Fair Use.
• In addition, the Fair Use of copyrighted materials should NOT create consumer confusion with the original product, or brand name.
• Fair Use is not a popularity contest.
• The Burden of proving Fair Use is on the Defendant.

 
Criteria of Fair Use (in approximate order of relevance)

• Artwork should be a parody not satire.
• When you look at the artwork is there a simultaneous (immediate) recognition of parody?
• Is the artwork intended for a non-commercial purpose as a social commentary?
• Does the artwork dilute or tarnish a famous brand?
• There can be no suggestion of sponsorship from the famous brand or company.
• There can be no potential for confusion with the existing trademark or brand name product.
• It is important for the artist to make work that avoids consumer confusion.
• The commentary under fair use must serve a different purpose than the original trademark or copyright images.
• The commentary (made by the artist) can not take dollars away from the parent copyright or trademark.
• The commentary can not confuse the consumer.

Fair Use is easier to prove if the artwork is trans-formative.
WARNING: Artists should NOT borrow or download images from the Internet.

Now, back to Judy's work. 

Judy, there is no doubt in my mind that the use of your collage materials sufficiently transforms the original materials into a Judy Hoffman statement. Obviously, this one-of-a-kind book is intended for non-commercial purpose as a social commentary.  None of your college materials dilutes or tarnishes a brand name, nor is there any recognition or inference that there is a sponsorship from any brand. This avoids all possibly consumer confusion. The purpose of your book is definitely different than the intended purpose of the original found materials.

Look for a future blog about Parody v.s.Satire for more information related to this topic.
Sincerely,

Harriete
www.harriete-estel-berman.info