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 of 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)

• The 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 transformative.
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 purposes 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 possible 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

This post was updated on December 15, 2021

Work Returned from a Gallery Poorly Packed! What should I do?

Dear ASK Harriete:
I'm hopping mad. A necklace was returned to me by a gallery that held a special exhibition of emerging artists' work. The necklace was all in a jumble in a loosely packed box (not the box or packaging I shipped it in, by the way). There is damage to the piece that I must now repair. Arrgghhhh! The gallery blames the shipping company and the shipping company blames the gallery.  How do I get someone to repay me for the damage?

Hopping Mad

Dear Hopping Mad,
From experience, I think you can rule out collecting from the shipping company as they only cover damage to work that has been packed properly.  Obviously, this was not packed properly.  Ideally, the gallery should bear at least a portion of the responsibility as they are supposed to know how to pack work to avoid damage. 

Realistically, you must document damages in order to make a claim; i.e. with photos of the necklace “in a jumble, in the loosely packed box” when it was returned from the gallery and compare these to the photos sent to the gallery initially with the work.  If so, use the “Claims for Damaged Work” document in the Professional Guidelines. The “Claims for Damaged Work” offers a step-by-step approach for making a claim for damaged work. 

To make a claim requires a good deal of time. Could you repair and refinish the necklace in the same amount of time? Also, keep in mind that telling the gallery that they did not pack the work properly without clear photographic documentation will probably “burn” any chance to work with them again.  It may be better to take this experience and learn from it. 

There is a very important factor in this situation.  Artists should assume that the people receiving and returning work are overwhelmed – especially around an exhibition – and no special attention will be extended unless you provide both the packing materials and clear packing instructions to follow.  In general, if work needs special handling or extra care, I recommend that the artist should provide original packaging that is reusable, durable, and memorable with foolproof instructions and packing materials that the gallery should save for return shipping.  Even your shipping boxes need to look special so they are saved by the gallery and used for return shipping. Your original packaging needs to set such a high standard that the gallery follows your example for return shipping.

A suggestion for a delicate or complicated necklace: 
Suitable packaging for a necklace
Suitable packing for a necklace might include a flat foundation with ties to hold the work in place.

I use the packing suggestions below for sculpture as well.

Here are some step-by-step suggestions for preparing suitable packing for a necklace.
1. Start with sturdy cardboard with about one-inch margin larger than the necklace. (If the necklace does not lie flat, then construct a 3-dimensional foundation from cardboard.)
2. Cover the cardboard with flannel or felt. Use "tacky glue" or something similar to glue the fabric to the cardboard. This fabric covering should look neat, tidy, and professional.  Cover the underneath side of the cardboard completely also. The more attractive this looks, the more professional your packing for the necklace will appear and the more memorable to the gallery
3. Glue ties onto the flannel in strategic locations to hold the necklace in place. The ties should be made from ribbon or fabric seam binding.  Do not use a string which may bind into knots that are impossible to open.  The fabric or ribbon will glue on better also.
4. Tie necklace into place using the seam binding with neat and tidy bows or slip knots.
5. Depending on the value of the necklace and the form, maybe a second layer of fabric over the top can prevent the packing materials from rubbing on the necklace during shipping.
Bubble wrap should never touch paint, or metal or many materials. It can leave marks or stick to the surface.
6. Place the necklace on the flat cardboard (or cardboard form) in a box or plastic bag.
•    For small artwork, or jewelry a Tupperware-type plastic container may be an excellent interior box.
7. Double box. That means to place the necklace in an INTERIOR BOX slightly larger than the necklace and then place that box in a larger EXTERIOR SHIPPING BOX with packing material surrounding the interior box.  
    •    Glue instructions for Unpacking, Display, Maintenance, and Packing on your interior box.
    •    Always include a pair of disposable gloves with your work (placed inside the interior box).
    •    Place the following papers inside the interior box with your work:
        o     A list of Inventory (including wholesale and retail value).
        o    CONDITION REPORT  (especially if this is an important piece or traveling exhibition). Find the Condition Report in the Professional Guidelines at: https://harrieteestelberman.com/professional-guidelines
    •    Include a current RESUME, ARTIST STATEMENT, and CD with images if you haven’t sent them already.
    •    Use brass brads or ties to securely close the box (if the lid doesn’t already seal like Tupperware, for example). DO NOT USE TAPE to seal the interior box. (Every time the box is opened it will damage the box, or add layers of yucky tape.)
8. Place the interior box into the exterior shipping box. The exterior shipping box should be at least one inch larger all around. This buffer space should be filled with foam peanuts or air pillows.
9. Ship with insurance. I recommend “USPS registered, insured mail” for items worth more than $1,000. Use USPS-insured mail for items worth $1,000 or less.
Never pack work in bubble pack secured with clear tape. The person unpacking the work can't see the tape and they may cut the work when cutting the tape.  In addition, when the tape is cut, the bubble wrap is damaged and not reusable for return shipping.

If you must use bubble wrap to wrap work, use colored masking tape which is easy to see and easily removed. If the above instructions are too elaborate for the value of the necklace, then perhaps the necklace could be mounted on a plain piece of cardboard (or even a piece of cereal box cardboard or file folder), tied with twist ties (to keep it in place), and then placed in a plastic bag.  Whatever the appropriate level, you want to send your work in packaging that is sturdy, neat, reusable, and labeled properly for return shipping.

Sincerely,
Harriete Estel Berman 

This post was updated on December 15, 2021