Ask Harriete

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
www.harriete-estel-berman.info

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