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 lawsuit 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

 

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.     

 

This post was updated on December 20, 2021

Fair Use - Is your work "transformative?"

It is important for artists to understand the concept of 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 Estel Berman

Many people have requested permission to share the content on ASK Harriete.

FOR PRINT: You have my permission to share a post for educational purposes in whole or in part as long as you include my name, Harriete Estel Berman,  ASK Harriete, the URL for that particular post along with the date of the post, and the date the post was printed. 

INTERNET: It is not acceptable to copy an entire post from ASK Harriete on your blog or website. This would be duplicate content on the web. Duplicate content on the web is negated by search engines. However, it is appropriate to write a review, comment, rebuttal, or endorsement and link to the original posts. The same goes with Facebook or any social network.  LINK to the original post adding your own original comment or content.

This post was updated on December 20, 2021
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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, a 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 website.) 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 stationery from a large N.Y. City legal office with the names of 111 lawyers on 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 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 your experiences by telling ASK Harriete.  

 

 

 

This post was updated on December 20, 2021

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. The 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 principle of Fair Use is whether the artist's use will be confused with the original copyrighted brand name or product. 


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 a use that would supersede the original purpose of the copyrighted materials. 

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, e-book, tutorial instructions or artwork is not O.K.  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 Estel Berman

This post was updated on January 5, 2022 

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How do you stay motivated when trying to find a market for your work?

Dear Harriete,

There's so much to consider when making and marketing work that I sometimes feel like the crazy plate spinner in the circus.  For the past year, sales have been almost non-existent which also has me feeling a bit disgruntled.  I have a ton of work that I've made during the eight years since my BFA and I'm kinda tired of looking at it.

How do you stay motivated when trying to find a market for your work?

Signed,

Disgruntled and lost

 

Dear Disgruntled,

For aspiring artists and craftspeople, the path for success is NOT about making work to sell. The path to success is to make the best most interesting, deep, esoteric, off the beaten path, unique,  "_________(fill in the blank here)" in the whole world. It has to reflect your inner core, not what you think will sell.  You need to dig deep.

Expecting to sell what you make as a measure of success is a poor measure of the merit for your work (and bound to make you feel bad in this poor economy). [Covid 2022 update: This is not a good time to measure success from what you are selling. Covid quarantine is the time to stay home and work in the studio.} This is the  oIf you want to make work to sell, then make work for Target or Wal-Mart. That is what sells. In reality, nearly all artists and craftspeople must find supplemental income.

As for staying motivated, the book titled, Talent is Overrated, by Geoff Colvin. analyzes how people become successful. I recommend that you read it. A very important concept of the book is regular, "deliberate practice."  Most successful people accumulate over 10,000 hours of deliberate practice before they become a success.  If you started in elementary school, or when you were 3 years old like Tiger Woods, then you will have your 10,000 by the age of 21, or 24. But if you started your deliberate practice as a student in college, then you've just begun your 10,000 hours of practice. 

My favorite part of the book is in the last chapter, "Where Does the Passion Come From?"   Colvin points out that focusing on extrinsic motivation such as awards (or money) reduces the creativity of the outcome. This principle is backed up by academic research.  So where does passion come from? It certainly has to come from within.  Think about what you really love to do.

While doing your "deliberate practice" every day in the studio, develop visibility for your work outside of or beyond the gallery/consignment world.  Look for other opportunities to gain insights and experience like submitting your work to calendars or magazines, or volunteering with your local or national arts organization, or at a local small museum or non-profit.

Share your work online. Comment on other people's images.

Save your money from your day job for professional photography when you are ready. (Taking your own pictures is a backup plan.)

Start or join a Critique group.  I have been in several critique groups for over 28 years. It is an absolute necessity to hear solid critical feedback from your professional peers. Eventually, the group may even create or lead to group show opportunities.  Avoid talking about children, dogs, cats, and personal problems. Talk only about the work of the members.

If you don't have a Critique Group, invite another artist friend, one on one to critique your work. Give permission for honest feedback. Be specific. 

Ask your mother! My mother has a great eye and she doesn't hold back her sharp criticism. This can be a great opportunity to get the feedback you need.  

One final thought. Have you considered giving away a few of your experiments or finished pieces to friends or family that appreciate your work? This may expose your work to a wider and diverse audience.

Above all, .......Keep working. Get your  10,000 of practice.

Harriete

 

This post was updated on January 6,  2022.

Are you wondering if your website is working for you?

Are you wondering if your website is working for you? Can a website provide more benefits?  Good questions!  Well, in 2009 Marla Johnson Norris from Aristotle Design spoke at the SNAG Professional Development Seminar.  The program was fantastic. For some people in the audience, they learned a lot about the role of a website in developing professional visibility and driving business. It has become even more important since then.   

The first hour was: Improving Website Performance & Design

In this highly informative and entertaining hour, Marla Johnson Norris shared tips on building new websites, modifying existing ones to better engage web visitors, and developing visibility in search engines.

The second hour was titled: Using Social Networking and Virtual Communities to Drive Business

Social networking and online communities were quickly becoming some of the most useful tools in the virtual marketplace. Marla Johnson Norris showed us how to cut through the clutter using these free venues to create buzz about your work. During this session, she covered a wide variety of networking opportunities that are readily and inexpensively available – from articles and blogs to consumer sites such as YouTube, Twitter, Facebook, LinkedIn, Pinterest, and Instagram.

The Program was called "Revolutionary" Maximizing the Online Revolution: Websites and Beyond. 
Take time within your year to look at how other successful artists and makers use social media and their websites to create visibility and document their work for a larger audience. No longer are artists and makers limited by gatekeepers such as editors, curators, or galleries.  Create opportunities for yourself. Invest time and energy into your work and share it with the world wide web - www. 

 

This post was updated on December 20, 2021

Are Your Images Good Enough?

Are Your Images Good Enough? 

This is an important question for all artists and makers in all media.  Images are perhaps the most important issue for success. 

Fabulous photographic images have always been important but with the circulation of images on the Internet, and with opportunities to have your work published in books, magazines, or exhibition publicity and catalogs,  great photographic images have become even more important.

That is why I decided to write the Professional Guidelines document about Quality Photographic Images.  There is also the topic Working with Digital Images Effectively. 

To be successful, all creative individuals need to strive for improvement and "deliberate practice" as described in the book TALENT IS OVERRATED by Geoff Colvin. Are you striving for improvement? Do you show your images to your Critique Group and ask for critique? Have you ever projected your images to see if they still look good to a lecture audience? Do they grab the attention of a jury? Are your images memorable?  Have you ever asked your most critical artist friend their opinion of your images? A digital camera or the camera in your phone does not make you a photographer. Evaluate your images carefully as a key to success.

Here is an updated example of what it means to have great images. 
Ornament Magazine editor Patrick R. Benesh-Liu had asked Glen R. Brown to write an article about my work. At the beginning of 2020, Patrick contacted me for images of my jewelry.  I sent images, and images and images.  I mean a lot of images. It took the better part of my free time for a week to look for all the images he wanted, and then he wanted more!  Does a magazine editor ever think there are too many images?  Evidently not!  Not only did he include many images in the article, but he added another two pages of images in what he titled "Artist Showcase."  

The article in Ornament Magazine published in the spring of 2020 led directly to the next opportunity....the inclusion of my work in JEWELRY produced by Craft In America for PBS.

 

Are your images good enough to create new opportunities for your work?
Share your images with me on Instagram.


Harriete

P.S. Images of my artwork were taken by Philip Cohen. 

This post was updated on January 6, 2021.