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I have been quite surprised at how far out of date the Copyright Office seems to be about what is a copyright-able artwork.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 anyone 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 has 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.  The 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 media 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.

Scrapbooking 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 artwork 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 sheets, 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. The 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, aesthetics, 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 led to believe.  Personally, I have a lot more faith in artists and makers who constantly evolve and improve their work.

Harriete

This post was updated on January 2022

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 stationery 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

 

 This post was updated on December 22, 2021, to provide current links.

Start creating online visibility - with Social Networks to promote your art and craft

Dear Harriete,

I haven't tried the Internet yet to promote my work. What do you suggest to start with first?

Signed,

Overwhelmed and Confused

Dear Overwhelmed,

The internet can certainly help your marketing efforts, even for a novice.   Start with the easiest web exposure by joining a couple of social networking sites. 

Think of this social networking as sharing, rather than self-promotion. It will be a lot more successful.
Below is a list of several good social network options.

Instagram seems to be very popular right now. You can upload images to create an online presence. Even businesses are using this for an online identity and to drive traffic to a link in their profile. This can be changed anytime.  It is relatively easy to post images on Instagram. There are tons of tutorials out there.  If you don't have Photoshop (or other photo editing software) you can upload rather large images directly from your computer or phone.  Start with the free stuff.  You can upgrade any time to the fee-based premium options. Regular posting and 'following other people, commenting, and liking are all part of the social dynamic.  Just like everywhere else, great images are key. 

Facebook is a social networking site that is also free and very easy to use. You can make your profile public or be private. (On a personal note: I don't see how posting online can really and truly be "private."  That seems like a pretense that is not realistic. ) Make posting images of your art or craft work a primary focus for your pages.  You'll gain a lot of visibility with a wide new audience both inside and outside of the arts and crafts world. You'll meet lots of people on Facebook and it helps break the isolation of the studio. 

LinkedIn is a social networking site without images but it can be useful to connect with other individuals or possibly your collectors who might have a "professional" profile. It doesn't cost anything other than a bit of your time, and it provides another possibility to connect with colleagues from your past, present, and future. Keep this site completely professional. Skip any reference to your family, children, and pets, etc.

Every one of these sites generates visibility for you and your artwork or craft. As you become more proficient, make sure to add links on each of your profile pages for every site and your website to interconnect them.  This creates more traffic for your artwork or craft and more name recognition. The Internet is called the "web" and it is up to you to create a web of links and connections to catch the attention for your work.

Pinterest was hotter a couple of years ago (I am updating this information in 2022.) Still, I would not divorce myself from any site. Mix it up. Pinterest seems to be trying to regain traction with videos. Create a profile and go forward.

TicToK and YouTube are for videos. And since every phone creates a video in 2022....why not.   

Your goal is to gain visibility online that could lead to purchases.  Experiment first with the free sites and learn before spending money on Internet sites that promise visibility for $100 to $200 a year. You can create a lot of visibility without spending any money. Do not think you can buy your way into visibility. That doesn't work.

Save your money to invest in fantastic professional photography. 

Go ahead, jump into social networks and get your feet wet. If you don't like it, you can either delete your account or update it once in a while. 

There are multiple posts about visibility on the web on ASK Harriete. I endorse the idea of branching out, but it does not substitute for a website.

Signed,

Harriete Estel Berman

P.S.  I have included the links to many sites in which I participate, but you may not be able to see much unless you sign in.  Hopefully, you'll see other examples to give you a feel for the particular site. Leave a comment on any post, and I will respond. 

This post was updated on January 2022, to provide current links.

Marketing Fundamentals for Artists and Craftspeople

How to improve the marketing and visibility of your work?  Recently, I had the opportunity to choose a special Gift Guide on Etsy of SNAG members selling work on Etsy. This invitational showcase is a wonderful opportunity for additional exposure for SNAG members.  However, the selection process revealed some far too common shortcomings and Marketing 101 mistakes.   Below are a few suggestions that artists and makers should follow without exception if they want to promote their work.

1) Use your COMPLETE name - and make it easy for customers to find you.  If you have a common first and last name, add initials or use your middle name.  Check the Internet for how many other people have the same name.   Do you know that there are so many users named "Adam Evans" on Facebook that they formed a club?  On Etsy alone, there are 374 sellers named "Kristin". Use your complete name consistently and make all references to your work or related sites the same (or as similar as you can).

2) Always reply to opportunities with complete and comprehensive information.   When I put the call out for SNAG members on Etsy, many people sent me incomplete information. VERY FRUSTRATING!  Over and over people didn't send enough information for me to find them.  It was challenging, and for some people, I just had to give up.  When an entry asks for information, make it as complete as possible.  Include your name, contact information, email, name of your Etsy shop (for example). Maybe even your website or another portfolio site.

BTW (or by the way), an Etsy shop has a name.  This name is much easier to associate with a person than the technical URL address.  Can you imagine how difficult it is for normal people to track Etsy sellers when only those funky number URLs are given?  Using your name for the Etsy shop also creates an identity for you and your work. It gives your shop a memorable brand name to your customers and colleagues. Apply this brand-name concept to every situation.

3) Use only professional-quality photos. Use the  Professional Guidelines  Guide to Professional Quality Images. Compare your images to the qualities discussed in the document. Are your photos helping to sell your work or just documentation? Photos should be your best sales tool to reach potential customers - make it work for you, no excuses!  I will discuss this topic more in later documents but really look at your photos with a critical eye. They represent your work. Are they as good as they can possibly be?

4) My final suggestion for today is "be polite."  Some people were rude - perhaps unintentionally, but that is how I perceived it.  There was an opportunity for exposure and some people responded with no more than a single line of information that was often incomplete (as described above) without so much as a "hello". "please" or "thank you". That really doesn't work very well as an introduction, nor does it make a favorable impression in the big competitive world of reality.

So next time you want to improve your marketing, invest some time in developing a unique and consistent name and professional identity, think ahead and have some GREAT PHOTOS, and make all of your correspondence memorable and positive.

Learn more about professional development in the arts community by reading ASK Harriete regularly and checking out the  Professional Guidelines.

Harriete

This post was updated on December 22, 2021, to provide current links.

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 a while, 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      Saundra 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 BAD or UGLY 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 content 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 websites 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 Estel Berman

This post was updated on December 22, 2021

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

 

This post was updated on December 20, 2021

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.  

Stanford University Libraries offers an excellent post on Measuring Fair Use: The Four Factors

If you have information that you would like to add to these Fair Use Guidelines, either comment here or email me.

A lecture given in March 2013 discusses common issues surrounding copyright in the crafts community "The GOOD, The BAD, and The UGLY in the AGE of the Internet."

 

Harriete Estel Berman

This post was updated on December 20, 2021

Post with more information below: 

REFERENCES to Keynote Lecture Synergy 3: The Good, BAD and the UGLY in the Age of the Internet