Dealing with Copycats in the Community!

In the previous three posts lawyer Rachel Fischbein provided expert advice from her legal experience about what to do when a copycat copies your work. (Links to her posts are in the text and at the bottom of this post.)  Her approach was methodical and measured in it's response. All of it was super great advice.

In hindsight, looking at those posts, there seems to be an implicit presumption that the copycat was a large company or brand name corporation or knock-off discount retailer. Sure that happens.  As a lawyer, Rachel Fischbein most likely deals with such cases where significant money may be at stake, potentially leading to a resolution through a "licensing or royalty payment for the use of our designs."  

But a number of copycat scenarios brought to my attention by readers are of a more common type involving someone from our own art or craft community, e.g. a student, participant in our workshop, fellow artist or maker, friend or foe.  I hear about this all the time.  Sooner or later, most of us become aware of someone else's work that is just too similar our own.  

When you experience such a situation, a key question might be, "Are copies necessarily an intentional act of the copycat?" And how should you handle this situation? Do they understand the consequences?  

Original Victor Reis metalwork from the gate of the Magnes Museum now shown in Berkeley.

This is not a new problem.  I found an example of this exact situation in the Archives of American Art Research Collections consisting of an exchange of letters between two metal artists in the 1950's.  The first letter is from Victor Reis, a San Francisco Bay Area metalsmith of local renown at the time (ca. 1956).  In the letter Reis writes to Margaret De Patta about a ring she is selling which he declares is a copy of his own design. While Margaret De Patta is well known now for her jewelry, at the time she was a struggling art jewelry maker (just like the rest of us). An excerpt from the Victor Reis letter is provided below. 


"Dear Margaret, This letter is not suppose[d] to be a bad one. But I['d] like to express my feelings and talk open and free to create a clean atmosphere even if there are some clouds around. A visit in the city, a look into Nancy's display, gave me a strange feeling. I saw the Margaret De Patta display with a ring about 100% like one of mine. " .... He continues,  "It's not  a complex of me, that I believe so often to find my work executed through others, like a necklace through Merry Renk."  Victor Reis' letter continues with more examples and small drawings. 

Margaret De Patta replies in a letter, "Dear Victor - Your letter came several days ago. Needless to say I have given it much, much thought. First I want to say that I am glad that you have written openly to me. A person can never honor statements that are made behind one's back, and I have heard of these from several sources."

De Patta's letter continues and suggests that the San Francisco Metal Arts Guild  board should establish a method for mediating such matters.  Obviously, 50+ years later we (the arts and crafts community) still have similar issues and have not yet agreed upon a method for mediating these copycat scenarios even among friends. 

So who is the copycat?

I have not yet found any documented resolution regarding the issue discussed in the letters, but I was impressed that Victor Reis and Margaret De Patta did follow a vital precept endorsed by Rachel Fischbein, to initiate the "Initial Copycat Communication." Write to the copycat offender with a non-threatening business like manner seeking an amicable solution with documentation.  

What would your documentation include? Rachel Fischbein in the post "What is a Copy? Copycat"  describes a methodical approach to evaluating whether something is a copy. The key element to this evaluation is to document the similarities. "Figure out who's product was created first" and "Determine if the copier had access to your work." 

 

Here is my list for copycat communication:  

• Compare and evaluate the copycat version to your work.  
• Document where they may have seen your original work.  
• Write a private, non-threatening letter to the copycat.
• Follow Rachel Fischbein's recommendations for a structure of this letter.
• Discuss the situation with the copycat.
• Do all this direct communication before going public on social media.

During this evaluation, keep in mind that the technique* or materials can not be copyrighted -- paint is paint, clay is clay, metal is metal, enamel is enamel, etc. So the copy has to copy a style, design, aesthetic  or conceptual component in the "copy." 

Going back to the reference to the Margaret De Patta letter she says, "A person can never honor statements that are made behind one's back, and I have heard of these from several sources." Take the time to write a civil communication documenting the apparent copycat scenario as you see the situation.  Just like Victor Reis reaching out to Margaret De Patta, if you have concerns, it is best to direct them privately in your "Initial Copycat Communication."

These are your first and second steps before jumping to public accusations on Facebook (or another public forum). This may fly in the face of our natural impulses to either retreat into a cocoon to avoid any confrontation or publicly "burn" the offender.

However, in the age of the Internet, more than a few online discussions dealing with a copycat scenario start with a Facebook post along the lines of  "what shall I do?" or thinly veiled references to dastardly deeds .

The posts by Rachel Fischbein taught me that no matter what the copycat violation, a key message is to take professional, non-threatening and clearly thought out actions before burning any bridges or escalating to a crisis.  

While I have no easy solutions to the slippery territory of the copycats that live in your community, I do think it is worthy of discussion and communication, hence this post.  

Let me also acknowledge that many individuals have said that pursuing this level of documentation and communication with the copycat is a "waste of time."  The "originators" is this camp typically justify ignoring their copycats with a rationale such as  "I have moved on." or "I don't care so much about old work." or other similar reasoning.

I disagree -- because there are moral, legal and financial consequences of ignoring a copycat, and of being a copycat. This will be the subject of the next post.

In the meantime, I welcome your opinions about this topic.

Harriete

This post was updated on December 11th, 2021.

 *"Copyrighted technique"?  In short, there's no such thing.  The description of a technique may be copyrighted to the extent it includes creative elements, but the underlying technique, and the factual description of it, are not subject to copyright protection. SonnabendLaw Intellectual Property and Technology Law,Brooklyn, USA

Appraisal of Margaret De Patta jewelry on Antiques Roadshow

 

 

 

 

 

 

 

Margaret De Patta jewelry including ring, brooches, and earrings appraisal on Antiques Roadshow
 

 

 

 

 

Read the previous posts by Rachel Fischbein:

What Is A Copy? Copycat?

 

Initial Copycat Communication

 

 

Going Public: Speaking Out! Public Disclosure of a Copycat Complaint

Going Public: Speaking Out! Public Disclosure of a Copycat Complaint

Sometimes when the copying is blatant and direct communication between the two parties fails, the designers, artists or makers who have been wronged by a copycat consider reaching out to the public for support to draw negative attention to the misbehaving copier.

Public support can be a helpful move, if done thoughtfully, particularly for a small company copied by a large company. Before you take this drastic step though, be mindful of the potential consequences, and think carefully about how you’ll plan the public statements. Public shaming is particularly tempting when you’re angry. Before you go to the Internet to publicly vent frustration, consider what your long-term goals are and the impact your behavior will have on your business.

This is the third post by lawyer Rachel Fischbein about dealing with a copycat situation. The first post was "What Is A Copy? Copycat?"  The second post was "Initial Copycat Communication." ASK Harriete recommends that you read these posts before taking any actions. Fischbien recommends focusing on the issue, not the people involved.

The opinions expressed in this post are by the author, Rachel Fischbein, Esg., founder of Law On The Runway, and do not necessarily reflect the opinions of ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete.  As with the previous guest blog posts by Rachel Fischbein, please consider this blog general information, not legal advice. Should you have a concern about copyright infringement, please speak directly to an attorney to get advice on your unique situation.

      _____________________________________________

When preparing to make a public statement about the copycat incident, refer back to your notes of the timeline and educate yourself on copyright laws. Make sure what you are saying publicly is accurate, and you’re being fully truthful. You may want to consider publishing a longer document as a blog post, a downloadable document, or even a website to explain the copying and the interaction with copycat. Include all the important details, so it's clear you aren’t trying to spin the truth in short social media posts. Curious minds will be looking for the facts needed to come to their own conclusion. Walk the readers through the legal standards of copyright infringement and how the facts of the situation show infringement. You may want an attorney’s assistance for this.

While you may be dealing with difficult personalities of the copycat, always keep the statements and public conversations focused on the copyright infringement facts, and not about the people who represent the copycat business or designer. You may encounter a person on the copycat’s side who is deceitful and disrespectful, but your statements shouldn’t be about that person’s character traits directly. Limit your statements to the actions taken by the copycat and the copycat's  representatives.

You may post copies of emails or other documents sent to you by the copier, if the documents or emails were not sent after a promise of confidentiality from you. Be cautious though when using most intellectual property created/owned by the copycat. You may post only want it necessary to make your point, using the Fair Use doctrine of Copyright. Do not copy their logo to add their branding or unnecessarily take screenshots of their website for reposting. When in doubt, consider linking directly to the copier’s website. Be sensitive to their intellectual property and respect any information that they may have shared with you with an expectation of confidentiality.

 

Remember your reputation is also being publicly showcased.
This public statement is not only a reflection of the copycat’s business practices, but your reputation as well. Write your statements with professionalism and care. Try to showcase your logic and a desire for justice. Have a friend who doesn’t know about the issue read your statement first, before you publicly post anything. Ask for honest feedback about how your business looks in light of the posting. Does the statement foster the type of reputation you’re trying to build for your business? A public statement being passed around the Internet may be someone’s first introduction to your business. Remember, once you publicly post anything to the Internet, consider that it becomes a permanent posting. Someone may save a copy and bring it back to public attention in the future.

 

Tell the community exactly what they can do to be helpful.
Go back to your original goals as discussed in post #2 about Initial Copycat Communication. What do you want from the copycat? How can others in your community or the general public help you get what you want? If the copycat is a service provider to others in your community, such as a manufacturer with a private label, perhaps you can ask other designers to not use the manufacturer’s services in the future. If the copycat is a large brand, perhaps you are asking for social media sharing and public visibility.

Include your ideal resolution as well into the messaging. Let the copycat know it isn’t too late, and now there’s only shame to suffer through.  Possible resolutions include:

• A licensing or royalty payment for the use of your designs.
• A promise to stop creating that product in the future. 

If the copier does agree to a payment or to stop production, be prepared to make one final public statement, if requested by the copycat, letting the community know how the problem was resolved.

Rachel Fischbein

ASK Harriete asks: 

Are there any negative consequences to a public airing of the  copycat situation? (This is assuming that everything that the copy victim has written is professional in the public disclosure.)
 
Can the copy victim be sued for this public disclosure of the copycat situation?

Are there any other negative consequences that the copy victim should be prepared for?

I will try to find some answers.

Read the previous posts by Rachel Fischbein:

What Is A Copy? Copycat?

 

Initial Copycat Communication

 

 

More information: 

Fashion Law Primer: Protecting Your Designs

 

 

Information about Fair Use:

Fair Use Guidelines

 

Fair Use - Is your work "transformative?"

 

Understanding Fair Use in Copyright Laws

 

Fair Use and Copyright Issues for Artists

 This post was updated on December 11th, 2021.

Initial Copycat Communication

This post is part two of a three article series by Rachel Fischbein, Esq. on what to do if you find someone copying your work. Today’s focus is on the initial communication with the copier.

Before taking steps to reach out to the copier, please review the first blog article "What Is A Copy? Copycat?" to determine the type of copying and to develop comprehensive documentation of the copycat's copy.  This should be an ongoing effort on your part until the situation is resolved.

Feeling harmed and disrespected by your copier makes it tempting to send an angry email, threatening a lawsuit and berating the copier for his or her actions.  Often this type of email is the least effective way to create a behavioral change or to come to an agreement with the copier.

Below are tips for the first communication, intended to create an opportunity for positive results to end the unwanted copying.

Please note that this is general information and not legal advice. Please contact an attorney for advisement on your unique situation. The opinions expressed in this post are by the author, Rachel Fischbein, Esg., founder of Law On The Runway, and do not necessarily reflect the opinions of ASKHarriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete. 

Decide Who Will Send the Initial Communication
Despite being an attorney, I do believe that sometimes these matters can be more easily resolved by two parties communicating directly to each other. I particularly encourage the initial reach out to be personally between the designers when both parties are small business owners.  When the parties are two artists or small companies, the ability for the parties to relate to each other can be helpful in coming to an agreement.

When an artist or small company has a design copied by a larger company, having an attorney send the communication can be a good way to show the importance of the issue and the confidence of the designer knowing his or her rights.  Even when you’re doing the initial communication yourself, you don’t need to be alone in the drafting of your first communication with the copycat. An attorney can review the email draft, giving suggestions on how to explain your rights, and offer persuasive language tips, coaching you through the negotiation.

Decide How the Message is Sent
In addition to who will the send the initial communication, consider the communication channel. A physically mailed letter adds a tone of severity and formality that can be beneficial. However, the mailed letter isn’t likely to receive a quick response. An email encourages a fast exchange of information and a more personal connection.  In some situations, you may want to send both, to ensure that the copier received the message, knows of the severity, and has the encouragement to quickly respond. If you do send both an email and a physical letter, let the copier know a letter is on the way in the mail, so they aren’t surprised by the duplicate message.

Explain Your Rights and What the Copier Did Wrong
When asking someone to agree with us and to see our point of view, it is important to walk the other party through our thought process with clear details. We need to explain the situation to the other party, offering them first, an overview of what rights are protected by trademark, patent, or copyright laws, and then why their actions were a violation of those laws. Sometimes designers are confused when establishing the line between inspiration and copying. Ideally, we want the other party to come to the same conclusion as us, that their actions were taken against your rights to the designs, and it could harm both of your businesses. In addition, explain why your rights are protected. Designers are visual. Add photos or diagrams if it feels appropriate and helpful.

Share Alternative Resolutions to a Lawsuit
When explaining what the next steps are for fixing the problem caused by the copying, it is reasonable at this point to suggest that a lawsuit could occur to establish your rights, but also that there may be business reasons why it is beneficial for the other designer to end the copying behavior. Every situation is different, so the best way to work through this is to place yourself in the shoes of the copier.

What would convince you to change your behavior?
Are there alternatives that you can suggest that would end their copying and strengthen their business, as well as yours?

Give the copier directions for how they can resolve the issue.
This is your chance to offer options for a resolution to meet your ideal ending. Be clear on what you want.

• Do you want the copier to merely stop selling the product in the future?
• Could you ask for a portion of the previous sales?
• Are you willing to license out your design to them for a portion of the future sales or one-time licensing fee?
• Think about how you can benefit from the copier’s actions and efforts.
• Perhaps along with compensation you might want recognition as the designer for the benefit of having your name exposed to more people.
  
  
  
  

Encourage Communication
Remember, the goal with your initial letter is to create change and movement towards a solution, it is not to vent out your anger and frustration.

• Make yourself approachable and keep the communication channels open between you and the copier.
• Let them know that you’re available by phone or email.
• Suggest some times that would be ideal for a phone conversation.
• Your copier is more likely to honor your rights when you’ve established a personal connection and listened to their side of the story.
• Give them a chance to step up and act with integrity.
  
  
  

Silence or Disrespectful Copier
Most of the time, copiers are willing to change behavior when a personal connection is made and you’ve logically explained the issue to them. However, sometimes we have difficult personalities to face and we have to consider alternative ways to encourage behavior change through reputation damage, threat of lawsuits and/or public shaming. These tools are meant for “worst case” scenarios, and not as starter tactics.

The next post by lawyer Rachel Fischbein will address this "worst case" scenario where  public disclosure, shaming, reputation damage, and threat of lawsuits may be necessary. Subscribe to ASK Harriete so that you won't miss the third blog post in this three article series on ASK Harriete!

Follow this series:

What Is A Copy? Copycat?

Fashion Law Primer: Protecting Your Designs

California Lawyers for the Arts Offers Legal Resources & Information

 

Share this post with appropriate attribution and link to the original post to bring awareness to your community. 

Harriete

 

 

 This post was updated on December 11th, 2021.

What Is A Copy? Copycat?

This post addresses several variations of an all too common story, a designer is gaining traction on her designs, getting known for a particular style, feeling some success from her efforts, when suddenly a friend emails; "Take a look at these designs," the friend says. "They're just like yours." As the designer, you're understandably feeling harmed, disrespected and worried. But before you fire off an angry email to the copycat, read through this post to plan out your strategy. This post is meant to be general information, not legal advice, so if you are seeking counsel on your unique situation, please contact an attorney. 

Note: The opinions expressed in this post are by the author, Rachel Fischbein, Esg., founder of Law On The Runway, and do not necessarily reflect the opinions of ASKHarriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete. 

What is a copy?

Shocked and surprised when we see a copy of our work or ideas the first step is to examine the copycat version carefully looking to see what is being repeated. Is it the unique idea captured by product, or is it the design of the product? If it is the design of the product, did the copycat repeat the functional or useful aspects of the product, or is it the stylistic and aesthetic parts of the design that were copied? Did the copycat try to imitate something about your product that displays your brand identity? 

Functional or Useful Aspects of the Products:
If the copycat looked at your product and saw how the product worked, and decided to recreate the functionality portions of the product, you could look only to patent law for protection. Once your product is released to the public, anyone may copy the functional aspects of your product, unless you have filed for a patent and secured the rights to exclude others from that design. 

 

Aesthetic or Non-Functional Aspects of Your Design:
The parts of your product design that were meant to be pleasing to the eye, and not serve a functional purpose are easiest components to protect from copycats. We typically use copyright laws as protection for designers, but design patents can be used as well. If the copycat recreated your unique print pattern, etching design, drawing, photograph, painting or 3D sculpture design (including aspects of jewelry that look like small sculptures) you may be able to stop the copycat. 

 

 

Branding:
Is the copycat trying to make the products look like they came from your business? Could a consumer be confused in determining if you and the copycat are the same business or separate businesses? If the copycat is trying to make the product look like it came from your business or is using similar branding, we look to trademark law for protection. Always keep in mind that trademark law has two functions, to protect the business owner, and also to protect the consumer from being confused about the origin of a product. 

 

Document & Create Timeline:
After you identify what makes the product similar to yours, its time to document what is happening, before you reveal to the copycat that you're aware of the situation.

 

 

If the product is for sale online:

• Take screen shots of the listing.
• Look to see if there's a history of reviews?
• How long ago did the copycat start selling the product?
• Look at the copycat's social media.
• Has the copycat mentioned this product?
• How long ago was its first mention?  
• If it’s a small business doing the copying, dig into the identity of the copier.
• Do you know them?
• Could you have seen each other at a trade show or event? 
• Did they enter your booth, discuss your work, or attend a workshop you gave?

Get all the facts organized.

• Figure out who's product was created first.
• Determine if the copier had access to your work or would have been prompted to discover your website and saw your public product listings.
• If they have repeated your functional design aspects, look to see if they have any mention of a patent on the product, such as a patent serial number. You can also use Google Patent Search for a preliminary investigation to see if someone else actually holds a patent on the design you thought was uniquely yours! 

Decide What You Want to Best Benefit Your Business

As a designer, you're probably creating products out of passion, but also desire financial success for your efforts. Sometime we can take moments of negativity, such as discovering a copycat, and turn them into a business opportunity.

Instead of approaching the copycat with hostility and anger (and a threat of a lawsuit) consider alternatives.

• Could the copycat bring something desirable to your business, such as a new customer base or a chance to license your designs to the copycat?
• Think strategically about how you can get the copycat, who clearly believes in your products or business to bring you into their profits.
• Lawsuits are slow moving and expensive. Perhaps working together with your copycat will provide the biggest and quickest reward. 

Working through creative ways to benefit from the copycat’s actions brings us to our next post, sending that first letter to the copycat....

Stay tuned for the next two posts by Rachel Fischbein, Esg.

The next post will be about the Initial Copycat Communication.

The final post in the series will be about the issues of public shaming of a copycat to gain the attention of the copier.  and hopefully, generate a resolution.  

Follow this series:

Fashion Law Primer: Protecting Your Designs

California Lawyers for the Arts Offers Legal Resources & Information

 

Share this post with appropriate attribution and link to the original post to bring awareness to your community. Harriete 

 

 

 

Post Guest Author: 
Rachel Fischbein is the founder of Law On The Runway. She primarily assists fashion and beauty entrepreneurs as they build the foundations of their companies and navigate contractual relationships.  She has been published by Women 2.0 and Young, Fabulous, & Self- Employed Magazine. Ms. Fischbein is also on the board of directors of PeoplewearSF, a nonprofit supporting the Bay Area fashion industry. Rachel is a frequent presenter on topics such as intellectual property rights within apparel and jewelry designs, privacy law issues of wearable technology,
and the regulations of social media and blogging.

 

This post was updated on December 11th, 2021.

RELATED POSTS ABOUT COPY, COPYCATS & COPYRIGHT:

Copycats Cost Artist $250,000 Loss 

Alibaba Who? AlibabaMe?

Cultivating A Culture of Copycats  

The Guild of Unauthorized Sharing

Fair Use Guidelines

"I love your work and want to make one for myself"

Purchase of an Object versus Purchase of Copyright or Right to Copy

California Lawyers for the Arts Offers Legal Resources & Information

California Lawyers for the Arts is an advocacy organization for artists, makers and musicians. For 40 years they have been providing artists and musicians with referrals to lawyers, dispute resolution services, and education programs along with a publication library specifically for individuals in the creative arts and for art organizations.

I have attended many of their educational programs and used their arbitration service. In 2015, I attended a program titled, Fashion Law Primer: Protecting Your Designs taught by Rachel Fischbein, Esq. (More information about that class in the next post.)  

Rachel Fischbein will also be writing a post for ASK Harriete on how to approach a copycat infringer, composing a cease and desist letter, and what documents you should keep before and after you notice the copying.  A follow up post will illuminate whether or not to make a public statement about the copying. Are there any legal consequences to discussing a copycat situation publicly? I really want to know. So stay tuned for this series on ASK Harriete.

BACK to information from
California Lawyers for the Arts:

While CLA was the first legal organization to support the arts, I know many states now  have their own organizations. Do some research for your state. 

For any one of us witnessing examples of copied work, stolen ideas or workshop content, or borrowed or copied images, what is the legal recourse that offers an alternative to hiring lawyers?

"Copyright issues are exclusively a matter of federal jurisdiction, but taking a case to federal court, with its arcane local rules and discovery procedures, can be expensive and time consuming. A survey by the American Bar Association showed that the average cost of a copyright infringement lawsuit in Los Angeles through the end of discovery was $292,000; the average cost through the end of trial and appeal was $517,000.  Unless actual damages are truly substantial, the copyright holder will be without an effective remedy in federal court. "

It would be ideal if there was an option such as Small Claims Court. This article,  Small Copyright Claimants Need Access to Justice on the California Lawyers for the Arts website from 2013 discusses this option. Perhaps at some time in the future with advocacy from the arts community there will be a small claims court option available for everyone. 

The blog on CLA includes informative articles which are worth reading about copyright infringement.  The "ongoing debate about sampling rights and legal ownership of musical property" is discussed in their post Blurring the Lines Between Homage and Infringement.  If you aren't familiar with the copyright debate regarding this song, or any copyrighted content, a post on ASK Harriete,  The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use  offers more background on this topic.

 While the legal case above involved music rather than visual arts, the same principles apply. "Ostensibly, it would seem that copyright infringement is straightforward: either you appropriated someone else’s work and called it your own or you didn’t. In order to be found liable for infringement, two things must be proved. First, there must be direct or indirect evidence of access to the original composition. Then, if access has been established, “substantial similarity” between the original and the alleged infringing work needs to be shown." 

Stay tuned for a future post by Rachel Fischbein for your first steps in dealing with copycats.

NOTE "TO WHOM IT MAY CONCERN:" Copying someone else's work or appropriating someone else's ideas or images is not only illegal, but is ethically, morally and artistically a complete dead end to your future career.

Harriete

This post was updated on December 11th, 2021.

 

Fighting Image Theft with Pixsy?

Just discovered this new site for image theft? 

Let me know if you have tried it out.

Harriete Estel Berman

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Copyright and a Non-Exclusive License

Museums are well aware that ownership of an artwork or craft object does not automatically include ownership of the copyright to the image of the artwork. The copyright is always retained by the artist or designer (unless there is an agreement otherwise).  

This is why museums and knowledgeable collectors typically ask the artist to agree to a contract for Non-Exclusive Copyright License.

Museums respect copyright and copyright laws as a matter of integrity and legality. A recent letter from the Kamm Teapot Foundation explains this very clearly. I asked if I could share the information on this post. The issues explained below apply to everyone, but it is quite common for museums, collectors, critics and writers to follow these precepts. The general public or enthusiasts may not be as well informed, hence the BAD, and UGLY issues we see in the AGE of the Internet. But there is much learn from the professionals. 

Below is a quote from the letter from the Kamm Teapot Foundation:
"The difficulty for museums" [with current copyright laws] is that it inhibits us from reaching audiences through the usual educational channels. Without your permission, for example, we cannot legally publish educational books, exhibition catalogs, gallery guides, or video tapes that reproduce copyrighted works. The same is true for newsletters, exhibition announcements, and media-covered events in which your work may appear. Further, we cannot authorize other museums wishing to borrow your work to reproduce it for the same purpose. Under the current law, we would have to seek your permission each time we wished to reproduce your work for non-commercial purposes. An inability to secure your permission in advance of a deadline would result in the exclusion of your work from publication."

Do you see how carefully and seriously the Foundation respects the copyright of the artist? I have encountered similar concerns from numerous other museums. 

The purpose of the Kamm Teapot Foundation letter was to arrange a non-exclusive copyright license. It explains:. "This transfer is mutually beneficial since it allows us to present your work in a number of aesthetic and educational context to as broad an audience as possible."

The Kamm Teapot Foundation letter also says, it "does not cover reproduction for purposes that are essentially commercial: e.g., postcards, stationery, posters, and the like."

I thought that was very honorable & generous, but not standard. I have had museums use my artwork for calendars, for example. It is kind of a trade off to have images of your art work distributed to new audiences with the validation of the museum name on their publications. I am usually pleased that my name and the title of the artwork is correctly attributed. Remuneration for using images of an artist's work is most likely negotiated by big name artists more powerful than myself. 

In the last few years with the expansion of the internet, museums are more likely to post images online of their collections. Putting images online can get really complicated especially as museums and collections are participating on sites such as Facebook or Pinterest pages. This is in a sincere and justified effort to engage a new audience and appear more relevant to a broader spectrum of society. Usually the images are small (and of relatively low resolution), an effective method to protect your work without watermarks. 

Some museums actually have restrictions on the use of the images, or ask for a fee for using the images. This presents a great difficulty for writers and critics writing about the work. There is no concept of "fair use" in this ultra-sensitive territory....and no easy answers either.

My approach is to always say yes to use of my images for education, writing and publication. After all, my goal when making the work was to share the work with a larger audience without watermarks, and hope that

Harriete Estel Berman

Gain perspective about copyright and images 
RELATED POSTS: 

Pandora's Box or Toolbox - COPYRIGHT of Photographic Images

This post (above) includes the informed opinions of noted author, critic and lecturer Garth Clark. He raises the issues surrounding copyright and images. The difficulty for all writers, critics and lecturer's is legally and ethically gaining access to images. 

 

Watermarks on photos - Not Good, The Bad and The UGLY

Read the comments on this post as the discussion about watermarks zig zags back and forth. Still three years later, I frown on watermarks. What do you think?

 

What Information is Needed for Appraising Value?

Purchase of an Object versus Purchase of Copyright or Right to Copy

The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use

Purchase of an Object versus Purchase of Copyright or Right to Copy

Has anyone ever purchased your art or craft work and then started copying the original? I've seen this issue discussed online. Or people write to me when they find out about unauthorized copies of their work, especially when other people are profiting from their designs.  The situation is frustrating and nearly impossible to stop - once it is out of control.   

Normally, when a buyer purchases your work, that transaction does not automatically include purchase of the copyright -- unless it is written in a contract.  I've written about a similar parallel with Copyright Ownership vs. Owning the DVD. The inexperienced or naive consumer does not realize that the purchase of the item did not purchase the copyright or right to copy.

Early in the transaction is where information and advocacy can make all the difference.

A common example is when a buyer makes a purchase and then proceeds to duplicate the design or recast the original. The original work could be a painting, print, pair of earrings or ring.    More insidious are the commercial buyers who may buy your work with the premeditated intent to recast or copy for their own mass production and sales -- without your awareness nor permission. 

The simpler the work or more commercial the design, the more likely you will run into this problem. 

Recommendation: If you are concerned about this issue, perhaps a clause in the sales receipt should clarify that duplication of the work is prohibited. It could be written right next to your return policy. 

Another common example is a commission. The customer asks the maker to create an original design. The expectation is a custom or one of a kind work.  After delivery, the maker learns that the customer is now reproducing duplicates of the original, perhaps for their own use or (much worse) for multiple sales to other parties. In the digital age this is easier than ever.

Recommendation: I'd suggest that your commission contract specify this issue from the very beginning. Protect your work and your designs with clear language. If the customer wants to create multiples from your design then this needs to be clear from the inception of the commission. 

The critical issue here is that instead of selling an item, the maker is now selling a design. Most likely the designer/maker will charge somewhat more than they would for one print, one ring or a pair of earrings. 

What if you make work for a store to sell?  Raise the issue up front before it is a problem. Clarify in advance within your contract that the store may not copy this signature design. Purchase of work is not purchase of the copyright.  

A less obvious example, though rarely discussed, may arise when a collector buys your work. Purchase of the artwork or craft object does NOT purchase the rights to the photographic image. Technically, the collector should not be using or selling images of your artwork without your permission.  However, both of you would normally benefit from publicity. Technically, the collector should ask you for permission whenever they plan to publish an image of your work.   [Yikes, it can get really complicated here, as one could bring the photographer into this discussion. In this example we are not. Generally, it is understood that when a photographer photographs your work, you own the rights to use the images. Practically speaking it gets too complicated if the photographer will not let you use the images of your own artwork.]

MOVING ON....
At the museum level, the photographic image becomes a sensitive issue. At this elite level, museums want to maintain a level of respect and legality rarely understood by the average retail consumer. 

More details in the next post about Non-Exclusive .

Harriete Estel Berman
If you would like to download the graphic used in this post, Click on this link for downloading the graphic. Then right click to "save image as."
 
 The image is 360 x 1205 px at 72 dpi ( 171 kb).

 

 

 

 

 

 

 

 

Related articles

Copyright Ownership vs. Owning the DVD

40 COPYCAT THIEVES that have been seen

"I love your work and want to make one for myself"

Is the Copycat Problem a Small Fraction? With HUGE Impact?

Is the copycat problem a small fraction of the craft community?

Does any data prove the impact of this problem?

In response to the first question.....let's compare how our society as a whole addresses theft, robbery, and assault (as just three example crimes).  Each is a small fraction of what happens in your local communities. Yet, a great deal of effort and money is invested by your community in police, law enforcement, and courts to prevent crimes, enforce laws, and deter criminals.

So a relatively small number of criminal actions lead to real costs which impact the entire community adversely. 

With nothing more than a code of ethics, it is amazing that the arts community has self regulated itself as well as it has in the past.

BUT the internet and digital electronics have dramatically shifted how easily art and craft can be copied and distributed.  Ideas and images travel at the speed of light. Globalization and internet visibility have expanded these capabilities to a global scale.

The copycat problem is further compounded by cultural indifference from countries such as China that had no legal recourse through copyright laws until 1979.  However, artists and makers can use search technology to discover violations as well; violations that would have remained unnoticed just a short time ago. Every media and medium are dealing with these problems. 

Is there data to prove the impact of this problem?
There is no data. There is no art organization that collects this information. There is no art organization (that I know of) that has a policy on intellectual property. 

Who will enforce this policy?
We can not rely on others to enforce. We need to raise awareness for the ethical and legal issues. If we all at least demonstrate respect and understanding of current copyright laws it would be step in the right direction. 

The examples I have are from personal stories told to me by almost everyone I know. Sometimes I hear two stories of copycat theft in a single day. Usually it is at least one story a week. Most people are afraid to come forward. Like many victims of crimes, they wonder how they brought this on themselves.  Did they invite the crime by their naiveté or lack of vigilance?

Listen to the archived discussion about copycats and artistic piracy on Metalsmith Bench Talk with Jay Whaley. We covered a range of situations with some recommendations. There is no easy solution, no one answer that works for everyone, but neither can we make excuses. 

ASK your questions here in the comments. Perhaps you have recommendations for how you handle challenging copycat situations.

Harriete Estel Berman

40 COPYCAT THIEVES that have been seen

Until awareness gains traction in every "craft corner", workshop, retail fair, wholesale show, online forum, manufacturer, retailer, designer, internet site, and becomes a public discussion, the copycat thieves will continue as pirates of our work, our ideas, and our content.

In the "Age of the Internet" and digital technologies we can no longer go back to the studio and come up with the next idea fast enough. Ideas and images are stolen at the speed of light.  

• Are you prepared to protect your work? 
• Do you understand the concepts of Fair Use under Copyright Law?
• Do you understand DMCA

I will be discussing copycats and artistic piracy on Metalsmith Bench Talk with Jay Whaley. You can listen to the archived discussion. Perhaps you have recommendations or stories that you would like to share. How can the arts and crafts community learn from your experience?

40 COPYCAT THIEVES

1. Manufacturers that copy images off maker web sites.
2. Manufactures that copy images off online markets like Etsy.
3. Manufactures that offer to copy craft work for mass manufacturing even though they do not own the copyright to the image or design.
4. Manufactures that make and sell items based on craft work by makers without permission.
5. Manufactures that go to wholesale/retail craft shows to copy ideas to manufacture.
6. Retailers that copy images off maker web sites for ideas.
7. Retailers that look to the craft community for ideas to manufacture.
8. Retails that distribute merchandise based on a crafts persons ideas.
9. Retailers that do not require designers (by contract) to offer original ideas. 
10. Designers that surf the web for ideas. Quoting Suzanne Beaubrun,"Designers should not be surfing Pinterest or the web for ideas. Products “inspired” by original artists and makers are derivative copies and unethical." She is not the only person to say this. 
11. Anyone that loves a makers work and decides  "I love your work and want to make one for myself." For personal use this is unethical, but not illegal. Regardless, it is a copy.
12. Someone who purchases craft work, and takes it apart to copy the components.
13. Anyone who posts/publishes instructions based on another person's workshop or book without permission. To represent the work as your own idea is piracy. 
14. Craft shows that allow copycat merchandise to be included in the show. 
15. Craft shows without a mandate that all merchandise must be original ideas not copied from books, instructional materials, or workshops. This applies to the smallest show to 100's of exhibitors.
16. Workshop teachers that teach workshop based on published instruction they did not create. 
17. Workshop instructors that teach techniques based on a workshop taught by another person. They are a "workshop imposter".
18. Workshop organizers that do not verify their instructors are teaching original content.
19. Workshop participants that copy ideas/designs from the workshop and sell these ideas/designs as their own work.
20. Businesses that copy images of art work without permission to teach how-to "paint parties" of enthusiasts.
21. Authors of instructional materials based on another person's workshop. Do not publish another person's workshop instructions.
22. Magazines that publish tutorials or instructions without requiring that the ideas and instructions are original to the author.
23. Wholesale shows that lack enforcement for no photography including cell phones.
24. Anyone that sells art or craft based on instructional materials. Selling should be the realm for original ideas, style or technique.  
25. Artists or makers that accept commissions to copy ideas, style, technique based on another persons signature work, or photographic image.
26. Anyone that thinks a image posted on line is theirs to take, borrow or steal.
27. Anyone that takes an image from another person's web presence and represents this as their own work.  
28. Anyone that copies books to sell digital copies online.
29. Anyone that copies books or instructional materials to "share" content if the do not own the copyright.
30. Anyone that copies a workshop to "share" the information with their friends in "The Guild of Unauthorized Sharing."
31. Student work that is derivative should not be shown or sold. By its very nature, student work is about learning and possibly copying the masters. But this work should not be shown or sold as original work. In this example, citation of the source, just as in writing should be a standard policy.
32. Anyone that uploads images or artwork they do not own for the purpose of printing merchandise with the image. 
33. The copycats cloaked in naivety or inexperience.
34. Enthusiasts with the express objective to copy another maker's technique and share it with others. (from the comments.)
35. Businesses that grab an online photo or art and make an ad out of it without compensation, or permission from the original artist. (from the comments.)
36. Anyone that steal/copies graphic design images, icon or components for their own T-shirt, graphic designs, advertising and more without permission or compensation to the original artist. This is just one of many sites with examples of stolen graphic design. http://justcreative.com/2008/02/20/graphic-design-plagiarism-rip-offs/
37. Copying a magazine article without permission with the intent of distributing the magazine. (Facebook suggestion)
38. "Enthusiasts/wanna be information mavens who act as compilers, in hopes of generating traffic to their online sites- by posting free pictorial tutorials using screen shots without links to the original source or citation." (Facebook suggestion)
39. Your thief goes here?
40. What have you seen?

Harriete Estel Berman

Resources and articles about DMCA & Copyright Law:

Some Thoughts on DMCA Safe Harbor

CafePress, Self-Publishing and the DMCA 

Why Are Google DMCA Notices Skyrocketing?

Flickr and Facebook STILL Strip EXIF Data

More COPYCAT EXAMPLES:  

Jewelers Jury Images Used by Another jeweler

The $23,000 T-shirt: Teaching Copyright in Today's Social Media Culture

Using Pinterest Link for Visibility and Vigilance to Monitor Your Images

Pinterest has a method to look at images pinned from your website or blog. It is very simple.

COPY this link shown below and insert your website or blog address instead of the yellow text: 

pinterest.com/source/yourwebsitehere.com/

For example; to look at the images pinned from my website the link looks like this: 

http://www.pinterest.com/source/harriete-estel-berman.info/

Why would anyone want to look at Pinterest images of their own work, website or blog?

By checking on these Pinterest results you could:

• ask for proper attribution in the description
• correct descriptions
• see which images are most effective
• gauge interest in a body of work
• ask for the image to be removed (if you object to your work on Pinterest)
• contact the poster - (maybe they would like to buy your work, and talking to the artist is all they need to be engaged for a purchase)

Keep in mind that you need a Pinterest account to contact the pinner or leave a comment.

Harriete Estel Berman

"I love your work and want to make one for myself"

There are rampant versions of copycats within the arts and crafts community. Some are cloaked in naiveté, admiration and enthusiasm.The problems are multi-faceted.

One of the problems is that the copycats don't realize they are stealing from the professionals they most admire.

The issues are serious. By our silence, we in the arts and crafts community are cultivating a climate of copycats. Bringing this issue into the open is not going to be popular, but the undercurrents are eroding our economic, ethical and legal boundaries.

Today's post is about the ethical boundaries and economic impact. There are two general categories.

1) Copycats cloaked in admiration.
These copycats make work to look like the artist/maker they most admire. Instead of buying the work of their art or craft hero, they create sub-quality unauthorized knock-offs. While copies for your personal use with a "Non-commercial Intent" are legal under Fair Use, this practice has a negative impact on the craft community impacting revenue for practicing artists and makers.

Parallel examples are multi-faceted such as commissioning "copy cat work" from another maker. There are too many nuanced examples to illustrate them all.

2) Copycat workshops/tutorials. 

The copycat workshop has several corrosive manifestations. One aspect is the enthusiast that wants tutorials and workshops instead of buying the master's work. The innovator, lacking a market for selling their work may ultimately relent to teaching a workshop purely for economic survival. Or the master might feel obligated or pressured to teach these copycat workshops by the very admirers of their work. 

This copycat culture has become a breeding ground without clear boundaries. Instead of an expanding marketplace for quality and innovative art and craft, we have an expanding culture of copycats. The economy of workshops, schools, and magazines have significant growth largely as parasites on the innovations of the masters.

For the sake of brevity I have simplified the issues....but consider this overall to be a serious problem. A poor economy and eroding prices must increasingly compete with copycats who want to "make one for myself" instead of supporting the master.

Instead of enjoying an object or artwork for its visual impact, content issues, technical skill or innovation, these copycats see the potential for making their own derivative work. This is moving from BAD to UGLY.

Why do we want to clone and copy the original?

Why do we want to copy the formula for someone else's success instead of creating our own? 

Below are observations from people that have written to me about these issues. The identity of the writer is not included, but their voices are not singular.  No artist, maker or workshop teacher is listed below to protect their identity. I have heard these opinions echoed frequently over the past four years. The chorus is growing louder.  

       *******
"I often get emails out of the blue about my techniques, I am not sure how to respond. There are a few techniques I have developed that I feel are unique in my field & that set my work apart in the marketplace. I am all for people learning and developing skills, but it just seems so easy to ask for instructions about how to make my work especially when these techniques are so intimately tied to my livelihood. I feel that I have a right to artistic privacy, but I feel like such a "bad guy" when asked for it."

     *******

"When will the Free Tutorial be available? As soon as I finish new work and post the images online, I have requests for the free tutorial. Things happen quickly on the internet, too quickly. Novel work does not necessarily get much time to mature or become established, making it seem even riskier to share special techniques so casually." 

        *******

"I love your work so I made one for myself" is a shocking statement when I am standing at my booth at a show. Not only have I invested years to develop my skills and technique, but I have invested $1,000's in photography, booth display, and show fees. All of those compliments mean nothing more than they want to copy my work, ... as if this were an acceptable thing to do. This rocks my very foundation."

       *******

"Artist Wanna Bee has just pinned my work to "Things I Wanna Try in the Future" Pinterest board. NO, I didn't make it up.  Guess what. Just try a search if you feel the necessity of nauseating evidence. The shocking spectacle in front of your eyes is a whole group of your work made by other artists."

       *******

"And there is a weird Robin-Hood-in-reverse quality  where less-professional online communities develop a mob-like mentality to "liberate" a unique technique from the established artist/maker who developed the original."

      *******

As one established artist says: "What I fear is that people when they directly ask, are implicitly asking for the permission to copy outright."

      *******

"I've found probably close to 50 paint party studios copying mine and other artists work, and it's growing exponentially because people really enjoy this kind of past time, but have no idea that the art they are "painting" is in violation of copyright laws."

     *******
FROM HARRIETE:

If "I love your work and want to make one for myself" has happened to you, it would be helpful if you left a comment or email me. I could anonymously add your quote to this post to demonstrate that these problems are resonating in the arts community.

SUMMARY

"I love your work and want to make one for myself" is not a compliment, it is a copy. 

Instead, BUY THE WORK YOU ADMIRE. The artist, maker, metalsmith, or artist has worked long and hard to not only come up with the idea but to perfect the techniques and make the item. Why not purchase the item and support a local artist who is doing her best to support her family, etc.?

Harriete Estel Berman

Kate Brennan Hall has generously allowed me to use an image of her poster. Read her blog post titled Golden Rules of Crafting and see what she has to say about the topic. She sells her poster on Etsy. 

Cultivating A Culture of Copycats

Recently another form of copycats was brought to my attention...just when I thought there could be no more versions of the copycat, here it is - the painting party.


Wine and Paint Party Studio out of  Bloomington, Indiana copying Megan Duncanson painting without  permission, recognition or compensation.

At the time of this post,  Megan Duncanson discussed"The Paint Party Studios and the Illegal Copying of Artwork."  She documented her "own art being copied in a Wine and Paint Party Studio out of  Bloomington, Indiana without permission or recognition/compensation in any way."  It seems that copying paintings is a thriving business model as she has found "probably close to 50 of this type of companies."**

Copying an artist's painting (or any other art or craft) as a business model without permission or a license is illegal.

This copycat example raises a couple of issues: 
1)The illegal copying of an artist's artwork without their permission as in the Megan Duncanson and CafePress.com example.

2) The cultivation of a culture of copycats.

With all due respect to the entrepreneurial efforts of a small business, a "paint party" copying another artist without their permission is unethical and illegal. So is teaching a step-by-step workshop or tutorial of another artist's work or style or work or signature technique.   I think there is a BIG PROBLEM teaching people how to copy a painting or any other art/ craft project. 

We need to STOP COPYING, even licensed copying. If you want to paint, learn painting skills. If you want to work in any media, practice a skill.

We need to STOP TEACHING COPYING OF OUR OWN WORK OR STYLE.  While I understand that this is all done in the spirit of goodwill and encouragement, it does not encourage a student to forge their own path. Copycat teaching is a tacit message that it is O.K. to copy.   

"While most authors and  teachers intend these tutorials and workshops to be inspiring, all too often participants  blissfully continue to follow the instructions without further innovation." Consider that if you don't practice your creative muscle it will never be strong. Copying a painting, or copying a craft project does not exercise your creativity.

In the age of the internet, we need to encourage people to move beyond the tutorials and invent their OWN techniques and develop their OWN artistic voice.

In her book “Mindset: The New Psychology of Success” Carol Dweck describes the "growth mindset" and the "fixed mindset" and how it affects creativity.

Dweck describes the problem with tutorials saying,  “The tutorial gives you a fixed idea of a goal…..a fixed idea of perfection….and that accomplishment becomes an objective.” 

 

I am currently reading the book "Creative Confidence - Unleashing the Creative Potential Within Us All" by David Kelley of IDEO and his brother Tom Kelley. The premise of the entire book is that everyone can be creative.

In the book, they say "only 25 percent" of people from an Adobe Systems poll of five thousand on three continents" "feel like they're living up to their creative potential in their own lives and careers."  

At the bottom of this post, I embedded a short presentation from David Kelley's TED Talk David Kelley: How to build your creative confidence

With copycat-style workshops, the arts and crafts community has cultivated and nurtured a culture of copycats. By teaching copying and step-by-step tutorials, we fail to communicate that copying is not O.K. and that participants are missing the one thing that art and craft can teach - creativity.

Harriete Estel Berman on Instagram

*The Megan Duncanson images of her painting and the painting party were included in this post with her permission. She said, "Thank you so much for helping bring attention to this problem, it's running rampant across the country and not enough artists and patrons to these places understand the damage it does to artists."

**The CEO of Uptown Art (a paint party business) wrote to me saying: "At Uptown Art, we license with professional artists or purchase the rights to paintings from our rising artists. We not only agree with you on copying artist\'s works, we support artists by paying them for their work! We have so many paint studios which copy our work while we have paid significant money for the artwork. The integrity of using licensed/paid for artwork is what sets our studios apart from the competition. Providing quality artwork while supporting the artists!"

Books in this post are affiliate links. Clicking on these links and buying a book may provide this blog with a few pennies to cover expenses.

This post was review and updated on January 5, 2022. 

Copycats Cost Artist $250,000 Loss

Some may think that copycats are isolated cases with minimal impact. Unfortunately, many artists and makers would prefer to ignore the mounting evidence that copycat thieves are taking their toll on our community at many levels.

In this particular example, after years of effort, artist Brad 'Tiki-shark' Parker * was thrilled to finally gain some recognition with a commission worth $250,000 for towels featuring one of Parker’s paintings, “Forbidden Island.”   Then the buyer discovered that images of this exact painting were "already being reproduced on over 218 items by Internet retailer CafePress.com." As a result the commission was withdrawn and Parker lost the order. 

This is a real example of copycat thieves in the AGE of the Internet. It is just too easy for copycats to take online images (which are intellectual property of the artist) and upload those images to sites such as Cafepress.com.  Watch the video.  

Brad Tiki-shark Parker says on his Facebook page, "BIG Things are happening this week... I'm headed to Oahu to see what's up with this on-going law suit against Cafe Press over the theft of my art work - in Federal Court."

Here is an update "Big Island artist goes head-to-head against CafePress." 

How would this affect you or me?

If your work has a strong graphic quality, then images of YOUR WORK could be already printed on coffee mugs, t-shirts and telephone covers unknown to you. 

CafePress.com and RedBubble are just two of many online sites that allow anyone with a "profile" to upload images with the express purpose of printing the image on consumer merchandise. Cafepress.com allows the account to "pick the money making option that's best for you, never any upfront costs" to sell merchandise. RedBubble, with a tag line of "A GLOBAL MARKETPLACE FOR INDEPENDENT ARTISTS," seems to have a range of strong graphic images. 

Cafepress.com and RedBubble allow anyone to upload images, print the image on merchandise, and sell the merchandise for a share of the revenue.  Without your knowledge, copycats can profit from your artwork! 

I have heard of many similar examples to Brad Tiki-shark Parker where artists discover images of their art on unauthorized merchandise.

RedBubble and Cafepress.com are two of many internet sites with similar revenue models . Their entire revenue streams are based on anyone, and everyone uploading images for printing and selling consumer merchandise.

I tested both sites.
Cafepress.com requires the content provider to check a box which says: "I agree to use the CafePress.com service in accordance with the Terms of Service and Content Usage Policy"  but you are never required to look at either document before uploading images."

The Terms of Service and Content Usage Policy are hyperlinks to pages and pages of text.  

The user is not required to read the policies. 
The user is not required to review the information before uploading images.
Anyone could order items with the uploaded image printed on the items.

Just pay at the checkout and "earn" a share of the revenue.

Anyone could upload any image whether or not they own the image!  

Cafepress.com does have a policy regarding Intellectual Property on their site. It is very hard to find. The policy that prohibits the sell of merchandise that infringes on intellectual property rights should be a hurdle in clear, plain English that must be checked specifically before images can be uploaded.  It is not.

RedBubble.com did not have anything better. RedBubble is full of images that are obviously stolen.   

Neither site gave me any warning about the illegality of uploading unauthorized images that were not my property.

Cafepress.com especially is very convenient for copycats to use because small images work quite well on the merchandise offered.   

RedBubble requires larger files to make good prints on their merchandise. At least the higher resolution makes it a bit less likely to copy an image large enough for printing on RedBubble....but not impossible.  

At all these sites, the barrier is practically non-existent for unethical copycats to copy images of art or craft from the internet and print the images on consumer items.

People are making money by selling items with images that are not their property. This makes me mad!

What do you think?

Harriete Estel Berman

CafePress.com is located in the San Francisco Bay area. Write to them. Ask them why they abdicate all responsibility for content on their site. They don't even ask people when they upload images:
 
CafePress should be held responsible when vendors sell items printed with images they copied from artists without permission.
Cafepress.com
1850 Gateway Drive, Suite 300
San Mateo, CA 94404
Phone: (650) 655-3000
Toll Free: (877) 809-1659
Fax: (650) 655-3008
Email: [email protected]

 

UPDATE:  

Artist Tiki Shark’s lawsuit vs CafePress goes to federal court   - a YouTube video from local Hawaiian television.

Kona artist sues CafePress for alleged copyright infringement 

CafePress, Self-Publishing and the DMCA

Have you seen the post  Alibaba and the Copycat Thieves?

Hawaii-based Tiki Shark Art settles copyright infringement case

This is resonating in the craft community.

Thank you to Ruby Reusable for bringing the example of Brad 'Tiki-shark' Parker case to my attention.  

*Brad Tiki-Shark Parker artwork can be found at his gallery Abbas Hassan Tiki Shark Art, Kona Hawaii www.tikishark.com

Related articles

40 COPYCAT THIEVES that have been seen

Artsy Shark ActionTakes Down A Copycat

Did you see "Alibaba and the Copycat Thieves"?

At every level of the craft community, thieves are copying ideas, images, and original content without permission or authorization. Yet we in the crafts community too often seem to turn a blind eye or whisper about the problem.  Victims of copycat may be afraid of criticism, embarrassed by the negative attention, or worried about social repercussions.

In the Age of the Internet digital technologies are compounding the problems. 

It is time WE RAISED AWARENESS about the impact of copycat thieves. 

To this end I wrote a post on the American Craft Council blog titled: Alibaba and the Copycat Thieves

Please read this ACC post and let me know what you think.

Please consider sharing this post with your own comment and link to the original source.

Until awareness of the many faces of copycat thieves enters the consciousness of the craft community, the copycat thieves will continue to pirate our work, our ideas, our content, and our livelihoods. 

By addressing these copycat issues openly, we can change the climate of fear, stigma, and worry.  Expect a brighter future for ourselves, colleagues, and community.

Harriete Estel Berman
    

 

Below are posts from artists about theft of their ideas, images and content.

"Stolen images at JC Penney + Call It Spring"

Copycats Cost Artist $250,000 Loss

 

 

DMCA "Take Down" - Action & Advocacy Against Copycats

Are you rrrready to RRRRUMMMMBBle??  Time for a copycat smack down!

One way for artists and makers to remove illegal or unethical online copies of their images, designs or written content is with a DMCA "take down" letter. DMCA is short for Digital Millennium Copyright Act . 


IPWATCHDOG website has a great article titled, "Sample DMCA Take Down Letter" that explains all the steps along with a sample letter. In summary, "If you are the owner of a copyright you can provide notice to the webhosting company that houses the infringing material, and they will almost always take action."

Your goal is to remove the copyrighted image or information so the item can not be found or sold on that copycat website. 

Finding the webhost for the copycat is free and easy.  There are several sites that offer this research tool called Whois. It literally only takes seconds. Almost every site that is selling domain names will have a Whois feature. If you feel uncertain, do a test by putting in your own domain name. You will understand the results much better.

Here are a few links for Whois search on different sites: 

• Whois.com 
• internic whois.
• GoDaddyWhois

You can do all the DMCA research and send the letter yourself.  It is far simpler and easier than I thought.

I also found a site that will do all the DMCA work for you but there is a fee. "Professional takedowns starting at $199 and "Do It Yourself" takedowns starting at $10 / month!" I have never tried it myself and can not attest to whether they are more effective than just doing this yourself. And I do not endorse a watermark on your images as recommended by this site. 

I understand it takes time to file a DMCA. The time is well spent. If artists and makers more assertively protect their work, copycats will be less likely to assume that they can copy our work without repercussions. The first time you do anything it takes a little learning time, but just like anything else, with practice it gets easier and faster. 

Online hosting sites such as Etsy and Alibaba.com are not held legally responsible for the items posted on their sites....for all practical purposes, their level of advocacy for your work is non-existent.

Even ETSY (which promotes itself as a craft community-friendly marketplace) is not pro-active regarding copyright protection.  In my opinion, Etsy's level of advocacy for its sellers is superficial. Etsy and Alibaba.com are obligated to comply with the Digital Millennium Copyright Act (DMCA), but they routinely claim that they are not accountable for the merchandise on their sites. "They have the benefit of the “Safe Harbor” provision which means that if they implement the procedures dictated by the DMCA, the company cannot be sued themselves for copyright infringement. Regardless, that safe harbor gives Etsy little reason to be proactive in stopping in infringement but only reactive as per the DMCA requirements." 

SUMMARY:
A DMCA notice is relatively easy to do. It is one level of advocacy that you can use to be an advocate for your work. Use the DMCA to take down anything that infringes on your copyright.

Harriete Estel Berman

More posts about copycats issues coming this week! Stay tuned!

RELATED POSTS

HOW 4 SMALL BUSINESSES PROTECTED THEIR INTELLECTUAL PROPERTY FROM CHINESE MANUFACTURERS AND ETSY COPYCATS

 

The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use

The award winning show "The Good Wife" offered a lively banter discussing Copyright Infringement in the recent episode titled, "Goliath And David." Watch the show online.

I loved every minute of it and think the issues brought forward are relevant to many of the discussions circulating in the arts and crafts world regarding legal issues, copyright, and copycats. Six minutes into the story the first revelation arrives. And if you are confused about copyright, copies, derivative work, parody, and fair use....it is all explained in the story. Pay attention to how precise and specific the discussion needs to be in teasing out the legal issues.

They use music, more specifically a rap song, as the example....and... sure, this is just a fictional story, but the information was fascinating. The issues presented in the case become more relevant with the recent cases brought to court by Marvin Gaye estate suing for infringement against Robin Thicke song "Blurred Lines."  

Compulsory License, and Derivative Copyright were the first two issues brought forward in the story. Quoting the show, "The compulsory copyright allows you to cover the song, but the derivative rights protect you if you make changes in that song." This is specific to the music industry.

The next issue discussed is a legal agreement. Alicia Floric (the main character of the show) says, "Money has to change hands even if it is only five dollars." True.  A similar example in the Netflix series "Breaking Bad", a lawyer asks for a dollar from each prospective client (in the middle of nowhere, at night, in the windy desert) to enter into a contractual relationship with his new "clients" to establish lawyer/client confidentiality.

Continuing with The Good Wife copyright issues...
We then hear the voice of "excuses." Statements that are often used to justify copies. The character on the stand in court says, "I do know artists are sponges. We take in the same information from the zeitgeist, transmute it into something new. And sometimes there is a best way to do something. Uh, good artists will often duplicate each other because they hit on the best way at the same time."  I can't tell you how many times I've heard these kinds of comments. 

Testimony of the copycat continues...
"Similarity does not constitute theft." "Similarity is not a crime. That's how our culture develops and grows." 

 

Additional issues brought forward in the story include parody and fair use.* I love how the musician is lost in the legal arguments. "This is so cool.  It's like legal jazz."  The dialog is really funny. His scripted opinion echoes half the audience watching the show.

The story then moves onto the idea of transformation under Fair Use. "The judge wants the characters to prove that it was a "transformative artwork."

Two music experts are brought into the courtroom. Fascinating as their opinions diverge. Unfortunately the show confuses "satire" and "parody" using the words interchangeably, but ultimately the program does state, "Originality must be protected."

"A transformative artwork by its very definition must be transformative." 

I don't want to reveal the entire show.....you might have to watch the story a couple of times to absorb all the legalities. And the whole show has it's usual multiple threads of intrigue, sexual tension, and character development. All worth watching any night of the week!

The only thing that I will tell you is the copycat lost the case. Watch the show to find out how this is revealed.

Listen to this YouTube video to compare the two songs "Blurred Lines" from Robin Thicke and "Got to Give It Up" by Marvin Gaye.

Harriete

Harriete Estel Berman

 

*The Supreme Court has unequivocally held that a parody may qualify as fair use under § 107. According to the Court, a parody is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. Like other forms of comment or criticism, parody can provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.” Id. In other words, parodies can be considered “transformative” works, as opposed to merely “superseding” works. Since transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright,” the more transformative the parody, the less will be the importance of other § 107 factors that may weigh
against a finding of fair use. Id. at 579.

RELATED POSTS:

Fair Use - Is your work "transformative."

Blurring the Lines Between Homage and Infringement from the California Lawyers for the Arts

 

Related articles

What are derivative works under Copyright law?

Is your great idea copyrightable?

Jamie Spinello's Copycat Discovery! This wasn't supposed to happen!

After the posts last week about copycat problems, Jamie Spinello contacted me on Facebook. Jamie says that she has discovered that three of her necklace designs have been copied almost exactly by Forever 21, Charlotte Russe, and Nasty Girl.

It takes a lot of courage to speak out about these issues. There is no easy solution. Recognizing the problem and a willingness to speak publicly about the struggle to protect your work takes courage, a lot of courage.

Think about the issues presented here. What if this happened to you?

Note: The opinions expressed by the author, Jamie Spinello in this post are hers and hers alone, and do not necessarily reflect the opinions of ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied.

The red questions are my questions to Jamie Spinello.
If you have your own questions, why not ask Jamie in the comments?

PREAMBLE FROM JAMIE SPINELLO:

I am not an attorney, I am only stating what I have learned so far. My actions regarding the copycats have just begun. My story is not yet over. 

Before beginning this narration of my story, I'd like to reinforce that it is a good practice to get in the habit of registering copyright for all the designs an artist creates and wants maximum protection. That is a step all artists need to start taking if they are career artists/ designers.

Also, it is $35 per piece to register a copyright online. If your work qualifies (read the details and fine print) you can register a whole "series" for $35 which would save a ton of money. Make sure it qualifies by the definition of "series" as defined by the US Copyright Office, which is a bit different than an artist's definition. 

Jamie Spinello story starts with this email:

Harriete,

Thanks for your interest in my story. I appreciate you sharing it. There is misleading and confusing information about whether or not an artist can defend their work. Many people seem to think "no", but if you go to the US copyright office's website, they have a number of free .pdf downloads on the subject available for anyone to read and educate themselves. There they can read about what is called "common law copyright".

"Common Law copyright" is an automatic copyright given to a work upon creation, "pen to paper" so to speak. Common law copyrights are backed by proof of first publication and first sale dates. If you publish something online with an e-commerce site, a record of its existence in time is created and preserved.

For example listing an item on Etsy and paying for that listing fee through PayPal, once it is available for public view, it is "published" on that day, both an Etsy and a PayPal record will exist for this.  The first time the item sells, another record in time is created that can serve as evidence, especially if it is through PayPal or another reputable payment service that keeps exact records.

Although it is not required to register your designs because of common law copyright, it is advisable to do so as extra protection, first and foremost because the infringer will suffer a much greater monetary loss once the copyrights are filed with the US Copyright Office site (there are many details about this, read more at the US Copyright Office site) , which makes it a bigger risk for them and it shows that you are poised to defend yourself should someone choose to try to take advantage of you.

I get really upset when I see people say, "Oh well, nothing you can do, can't copyright art" etc., not only because it is a really callous thing to say something like that to someone that has just been robbed, but even more so because it is simply FALSE. The false rumors about artists not having any rights need to stop.

I think the photos speak for themselves.

The way that I found out about all of this, is that I happened to be reading some forums and someone was upset that a big company had stolen one of their paintings and put it on a t-shirt (with the artist's signature still on it and everything).

 

Right then I thought, "Hmmm wouldn't it be horrible if...." and then I went to Google Image Search and reverse image searched one of my most graphic necklaces.

Within seconds, there were gold plated copies of my design popping up in the Google image results. I was shocked! "This wasn't supposed to happen! This can't be real. This can't happen to me!" I thought.

So after one search, I did another reverse image search of another design, replicas popped up, and then a reverse image search of another, and more replicas popped up. At that point, I decided to educate myself as fast as possible about what my rights were regarding copyright infringement and to seek an attorney.

How long ago did you make this discovery for the necklaces?
I discovered the first knockoff of my work at the beginning of October 2013. I discovered many more of my necklaces and earrings being knocked off by well-known stores all on the same day.

After I posted about the first infringement that I had found, people messaged me about more infringements that I had not even seen yet. Some of my designs have been for sale online and through large retailers for many months in 2013 without me knowing.

I think all artists and designers need to do reverse image searches of their work at least once every couple of months and get in the habit of formally copyrighting their work that they want to protect seasonally. This is a serious problem and large mass producers are thinking they can get away with it.  
 
What has been your legal action so far?
I have gathered and cataloged a ton of evidence. I am letting my social media followers and customers know about this issue, so that they can keep an eye out and also know that these knockoffs are not authorized by me if they see them in stores.  I am currently working with attorneys.

The copycats are competing in the same market. Do you think the copycats of your jewelry could cause customer confusion?
That was my number one first concern. I don't want my customers thinking that my ideas and my designs are not my own if they see the knockoffs of my work in any of those stores. I also do not want my customers thinking that I willingly do business with those companies. I have a different set of values than a store that mass produces items.  I am a one woman handmade studio. I do not mass produce any of my creations. I take pride in designing all of my work myself and making my designs by hand one at a time.
 
I wonder why you're being reserved about this?
I just want to be as professional as possible by maintaining a level head through this all.

Jamie will you tell us more about your legal battles as your case evolves?
I don’t know what specifics I will be able to give along the way, as I mentioned before I am at the beginning of this. If there are specifics that I think could help others, I will ask my attorney first if it is OK to share details. If nothing else I would be happy to talk more specifics after a resolution is found.

Jamie Spinello
Austin, Texas

Copyright and COPYCATS

Recently I learned some details about a far too common practice in which contract designers and manufacturers surf the internet for design ideas.  They are looking for trends in consumer tastes to "inspire" new design concepts.  Unfortunately, the line between "inspiration" and "copy" which may be clear to most of us has been crossed on enough occasions to raise real concern.

Therefore,protect your work with a registered copyright.  

Legally, copyright belongs to the person who can prove that they are the earliest author or original creator.  But one small additional step can make a big difference if you find someone copying your work. 

"Registering" your copyright through the US Copyright Office provides a clear legal foundation (i.e. a dated document officially issued by the US Copyright Office) that you are indeed the original creator.  

However, even a registered copyright does not automatically protect your designs and ideas from infringement.  The Copyright Office will not take action against an infringer.  If you discover that some entity is copying or infringing on your designs, then you (at your own expense) must sue the infringer in court for copyright infringement.  But the registered copyright provides a powerful foundation supporting your claims.

 

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

You can register copyright on your design (or series of designs) at any time.

So the real question is, How should I decide whether or not to register the copyright of my work?         

Registering your copyright does cost money, a minimum of $35 per application.  So it is probably not worth registering every single piece of work that you make.  However, if you create a particularly novel design or a design that will likely influence subsequent work or a series, then the expense and effort of registering your copyright may be worthwhile. 

Even with registered copyright, legal enforcement via the courts may be too expensive and time consuming and far beyond the resources of most single individuals.

Consequently, social norms and raising awareness can actually be the most effective path to quell growing copycat abuse. The internet can help this call for action . . . and  I am advocating for a change in our collective thinking.  We need to raise our voices loud enough and expect a new behavior regarding "borrowed" or copied designs, i.e. a policy that compensates artists and makers for commercial use of our art and craft designs.

Instead of just shaking our heads, giving up, or slinking back to our studios, we need to bring visibility and awareness to the copycat problem. 

Many artists and makers are afraid that any controversy, even as the victim, will shine a negative light on their work. 

I understand this fear. This week I witnessed what was intended to be an open discussion about the issues turn into an abusive fight over craft carrion.  As long as the craft community can't stand together with united voices for just treatment of fellow artists and makers, we will continue to be exploited.

Look at the real and growing impact of copycats.  It is time we said out loud that stealing our designs is UGLY.  It is illegal and unethical to copy other people's work.

Kim Lyons says: "Where I sell on the weekends, its flooded with foreign manufacturers (and local stylists) taking pictures. There are apps now that allow the photographer to be even more sneaky with their i-phones. Some days you get exhausted by all the "no photos" or "please delete that photo" that it distracts from selling.

Lyons continues: "And yes they do like simple designs that are easy to rip off. But blaming the artist for having a simple style is not fair. Those styles are the bread and butter keeping the artist afloat."

"Blaming the artist for creating simple designs, is the same mentality of blaming any victim for being victimized." END QUOTE

Going back to the copycats:
This flock of predators pick over the craft community for mainstream manufacturers and marketing venues. The stores with their distribution channels, brand names and superior marketing budgets assume that the artists/makers will never find the copycat version or we will just walk away in defeat. They are counting on our collective passivity.

As a community we can change the culture of defeat and tolerance of exploitation.  We can raise our voices in a chorus to call out copycat abusers.

It can be worth your time individually and collectively.  Design fees could range between  $2,000 to $5,000. (That is a guess...anyone want to tell me clearly what to ask for as a fee? There are many variables.) Typical terms could be a flat fee or a percentage of sales or both.  Ideally, a contractual arrangement should be agreed upon before the company starts manufacturing and selling the product. 

My hope is that these posts and the numerous discussions on Facebook bring visibility to the ethics within the design communities. 

It is time that we ask our craft organizations and marketing channels to support a voice against copycats.

Help make the change you want to see in crafts. Do not let copycats continue to steal from the arts and crafts community. Raise visibility for these issues from within and without.

Harriete Estel Berman

 

Are you an artist reading this? What actions should you be taking to protect your work?

RELATED POSTS on ASK Harriete:

Copyright - Practical and Financial Issues

Copyright - Legally Protecting Your Work

A response to comments on Copycat, Copyright and Coincidence.

Copycat, copyright or coincidence - simple steps for prevention.

The "No New Ideas" Justification for Unethical CopyCat Behavior

Preventing Copycat Behavior

What is the difference between Copyright and Trademark?

 

"Abilities versus Choices" & Choice Quotes

In one of the Harry Potter movies, Dumbledore the wise wizard says: "It is not our abilities that show who we really are, it is our choices."

Of course, Dumbledore is a fictional character, but a character everyone admires. Why? Because he represents courage, perspective, careful reasoning and wisdom. He was willing to be "The Force for GOOD" regardless of political pressure and public opinion.

A book, "As a Man Thinketh", inspired some of my preparation for the lecture.  Written in 1902 by James Allen, the writing style is a little old-fashioned but his words merit being read -- and repeated. Here an excerpt:

"Man is made or unmade by himself.  In the armory of thought he forges the weapons by which he destroys himself; he also fashions the tools with which he builds for himself." 

"By the right choice and true application of thought, man ascends to the Divine Perfection; by the abuse and wrong application of thought, he descends."

“...as they may have been hitherto woven in ignorance and pain they may now weave in enlightenment and happiness.”

A very interesting perspective about individuals making "choices" within a community is presented in this TED Talk by "Dan Ariely: Our buggy moral code".

This lecture offers compelling evidence that raising awareness about ethical behavior, even just a little, can have profound impact. After absorbing these insights, it should be clear that not only do our individual choices impact our community, but our community also impacts our choices. 

Reflecting on the words of Jonah Lehrer, How does our "desire for attention, a willingness to take shortcuts, and a carelessness provided that no one will notice" affect our choices?

Laurel Thatcher Ulrich said,  "Small actions by large numbers of people can bring about profound change."

Margaret Mead said, “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.”

Change has started.....but it is up to everyone to keep it going.

Share the links to the posts. Share the links to the lecture "The GOOD, The BAD, and The UGLY in the AGE of the Internet". Create visibility for the issues.

Do we have the strength and courage to stand up against naive, uninformed, or self-serving choices?  Even small efforts by each of us can proliferate into profound impact.

Harriete Estel Berman

Related articles

The "Force" for "GOOD"

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

The Gray Zone Framed By Black & White

The discussion in response to my lecture, "The GOOD, The BAD, and The UGLY in the AGE of the Internet" has ranged all over the map.  Most of the debate has touched on copyright and questions about ethical and legal sharing of intellectual property.  

I would like to reiterate that Copyright Law tries to clarify ethical and legal sharing to encourage creativity.  Proper sharing expands our communication and enlightens our community.  In contrast, unethical and illegal sharing dilutes and diminishes the value of our collective efforts.  

The lively debate and comments about "sharing" reminded me that the concept of Fair Use under copyright law has already addressed many of the issues under debate.  

Fair Use almost always involves a similar or derivative work that copies elements of the original work. An understanding of Fair Use can help clarify some situations that may appear to be gray areas - and instead frame them more clearly as black and white.

A few years ago I wrote a post about Fair Use Guidelines which concisely itemizes five key factors regarding Fair Use of copyrighted materials.

To claim Fair Use in making a derivative work (or before posting, sharing or selling a derivative work), ASK these questions:

Is the new version transformative?
If the derivative work borrows ideas or content from another person's work, book, or instructional materials, is it transformative?  The new version must look less like the original source and more like a NEW IDEA or NEW WORK.

Could the new version be confused with the original source?
There should be no confusion between the original version and the new version. Consumers especially should be able to instantly distinguish your artwork/tutorial as something different from  the original copyrighted work. Comparing both versions, if there is any possibility that consumers would be confused about who is the originator and who is the copycat....this is a copyright violation.

Are you selling the idea, art, craft or information?
Commercial intent or financial compensation are significant, often deciding factors in determining Fair Use. Copying an idea or information for your own personal use is permissible under the definition of Fair Use.  However, selling the derivative work or idea, or receiving financial benefit, violates the principles of Fair Use.  Even if you are distributing the copied work for FREE, but claiming or implying that it is yours, also violates Fair Use.

Is there an implied sponsorship or endorsement?
"Your artwork should make no suggestion that the copyright owner endorses or sponsors the artwork/ information." An example:  "_______( famous artist)_____ is my hero, I ’m sure that he won't mind if I copy this idea and share it with you" is an implied endorsement. This is NOT acceptable under Fair Use.  Before posting information or content, it is best to ask permission, and then cite your source clearly as in "This information was provided with permission from __________."

Ideally, Fair Use Guidelines can be applied to art/craft and writing (including sharing of information or instructions).  Most Fair Use is simply common sense.  Fair Use not only permits sharing but is intended to encourage a wide range of possibilities.  In other words, Be ethical AND Be creative!

Harriete Estel Berman

If you want further insights into copyright issues here are links to posts on ASK Harriete about copyright. 

Fair Use Guidelines

Fair Use - Is your work "transformative."

Pandora's Box or Toolbox - COPYRIGHT of Photographic Images

Related articles

ASK Ourselves, ASK Everyone

Copyright Ownership vs. Owning the DVD

Ethical SHARING Honors Original Content

Copyright Ownership vs. Owning the DVD

There seems to be some confusion in the arts and crafts community about ownership of information. Previous posts discussed sharing information as an ethical issue, but in fact, it is also a legal issue discussed and defined by the Supreme court on numerous occasions.

As a result of a recent Supreme Court decision, there are many articles on the web about copyright. The article "Copyright protection. First Sale Doctrine." by Attorney Francine Ward explains ownership of information clearly.

"A common misconception by many people who purchase content, e.g., music, videos, images, photographs, is that they own the rights to that work. They think since they paid money for it, that they can do anything they want with it. WRONG!"

"The copyright holder is the one who creates the content, unless it is a work for hire.  The purchaser is just one of many, who bought the book, rented the movie, or licensed the images from the copyright holder or the 3rd party licensee. Because you bought a book, does not mean you can make copies of that book."

"To be clear  the copyright holder and the purchaser of products are not one in the same."*

I hope that this information has made the legal issue very clear.

If a person purchases a DVD of instructional materials, they have purchased access to the information for their personal use. This information may not be copied or duplicated. You own the DVD not the information.

If you have a subscription to a magazine, you have purchased the privilege of owning the magazine. You do not own the information. You may not copy the information.  You only own the digital or print copy of the magazine. 

These principles also apply to books. The information is for your personal use. Duplicating the lessons, tutorials or images for selling as an object or workshop is beyond the boundaries of "personal use." 

These issues surrounding copyright are clear. Sharing content outside of a properly attributed citation is not legal or ethical without permission from the copyright holder.

Harriete Estel Berman

*This quote was provided with permission from Francine D. Ward, Business & Intellectual Property Lawyer in her post "First Sale Doctrine. Copyright Infringement."
Read the entire article here: http://francineward.com/first-sale-doctrine-copyright-infringement/

Related posts: 

The Color Blind Paint Salesperson and the Workshop Imposter  

The Guild of Unauthorized Sharing

"I love your work and want to make one for myself" 

"Abilities versus Choices" & Choice Quotes 

The Gray Zone Framed By Black & White

ASK Ourselves, ASK Everyone

Ethical SHARING Honors Original Content

The GOOD, the BAD, and the UGLY in the Age of the Internet

 

Related articles

BAD, UGLY, and ALTERNATIVES

The Guild of Unauthorized Sharing

AFTER my lecture The GOOD, The BAD, and The UGLY in the Age of the Internet, many people have responded. Views of the lecture continue grow. Dialog and discussion continues about many topics.....but, ..... 

But there is a situation that I didn't consider, didn't even think about... until  it was brought to my attention after the lecture... "The Guild of Unauthorized Sharing."

Here are the examples:

• A guild member takes a workshop, then comes home to show everyone else the workshop's techniques, tips and tricks.
• Guild members distributing copies of handouts that they did not create or own.
• A member demos a skill learned in a magazine tutorial.
• A guild hires a copycat workshop instructor instead of hiring the original innovator of a skill or technique.

Ironically, all this sharing is usually rationalized as "helping" each other. But with some reflection, this "feel good" cloak of generosity is concealing ethical, legal and moral issues that, in the long run, have an impact on our community.

Bringing attention to "The Guild of Unauthorized Sharing" is NOT an effort to prohibit the sharing of information. This is about knowing the difference between appropriate sharing of your own original content in contrast to the unethical infringement or appropriation of material created by other people. 

This Guild of unauthorized Sharing is also NOT about enthusiast vs. professional. This is a standard that needs to be applied at all levels, with all organizations small to big.

IMPACT:

1) Unauthorized sharing misrepresents to the members regarding who is the "master" original author. Members do not learn the ethical boundaries of copyright and intellectual property. 

2) Guild members teaching content from workshops without the experiences and understanding from the master teacher offer a sub-optimal 2nd hand educational experience from the original workshop.

3) The master teacher,  or innovator looses revenue when guild members reiterate even small portions of their workshop. The impact is if they can not make enough money from their efforts, they may discontinue teaching, writing their books, creating their handouts or stop sharing their technical innovations.

4) If handouts from a workshop are distributed at guild events outside of the workshop setting the master has lost future workshop participants. This is unfortunate as the master workshop teacher has earned appropriate compensation and respect for their efforts in developing these materials. The impact is lost revenue for both the workshop teacher, and the workshop sponsor such as your guild. I hear that some workshop teachers have stopped creating handouts for exactly these reason.

5) Guild demos based on magazine tutorials means that the magazine has lost potential subscribers. If they do not sell enough subscriptions, they will discontinue publishing.

I am hoping that our shared goal is a vibrant and innovative craft community supported by the artists and makers that care about the future growth of their media.

Frankly, I don't think I understood this problem and the impact so well until I heard about so many examples. 

Many people have opened my eyes. "Suddenly I see why... this means so much to me."

ASK Ourselves, ASK Everyone

A profound realization in both my personal and professional life is that the simple act of asking can prevent small problems from becoming big problems. 

We need to ASK ourselves. We need to ASK everyone. Open the conversation.

 

In my lecture The GOOD, The BAD, and The UGLY in the AGE of the Internet, I raised several issues regarding sharing tutorials, instructions and information.

The important issue is that
EVERYONE needs to "ASK." 
This is an issue about respect, not enforcement.

Ask the author, workshop, teachers, blog writer before sharing information from their blog, web site, tutorial, magazine or workshop.… ASK, start a conversation, find your answers.

 

Sometimes WE need to ASK Ourselves:
Am I going to turn a blind eye to inappropriate sharing of a tutorial by someone who is not the author? Or am I going to ASK that person, "Has the author given permission to distribute this information?"

When our Facebook friend shares a handout from a workshop, can we ASK, "Has the author granted permission to share this handout from the workshop?"

 

The value of ASK is that the answer will guide your direction.
This is about an ethical foundation within our community. It's time to examine the issues and consider the long
                                         term consequences.

ASK to obtain permission before distributing someone else's content. Contact the author with a quick email, Facebook message or phone call to clarify a situation or even open new opportunities for you and the community.  

If we ASK each other about a question, problem, or ethical issue, huge misunderstandings and mistakes can be avoided.

If you are afraid to ASK the author, or teacher then ASK yourself, "Why?"
The answers may be even more profound.

ASK Yourself: What is my motivation for sharing information? If you attended a terrific workshop, or discovered a very informative tutorial, that is great to hear, but it doesn't give us permission to copy the content and distribute material that we do not own or create ourselves.   Instead, it could be an opportunity to follow up with the author. ASK before sharing their information with a broader community.

Harriete Estel Berman

P.S. You may link to ASK Harriete or a specific post anytime. A recommendation for better SEO is to provide your own commentary, or opinion as original content.

 

Your comments are welcome, whether you agree or disagree. Each of us can be an advocate for our community by posting a link to the lecture, sharing this post and discussing the issues.

The GOOD, The BAD, and The UGLY in the Age of the Internet

On March 14, I gave the keynote address for Synergy 3, the International Polymer Clay Association Annual Conference.     Watch this presentation from YouTube. Sit back with a cup of tea or coffee to watch the full 45 minutes of entertaining and provocative observations concluding with four recommendations for the arts and crafts community.  When I gave this lecture half the audience was in shock!  The other half of the audience gave me a standing ovation. What do you think>

The GOOD, The BAD, and the UGLY in the Age of the Internet 

PLEASE COMMENT if possible.  This presentation tackles an issue that affects both aspiring and established makers and artists and needs to be shared, circulated, and discussed throughout the arts and crafts community. 

CONTINUE THE CONVERSATION.
If willing, you can easily embed this presentation in your website or blog directly from YouTube . 

 

Find the full text and RECOMMENDATIONS in this lecture at:

RECOMMENDATIONS from The GOOD, The BAD, and The UGLY In The Age of The Internet

Depending on the reactions, some future posts on ASK Harriete will expand on the topics raised.  Contact me privately through the email link in the left column of ASK Harriete or leave a COMMENT.

 Harriete Estel Berman

The "No New Ideas" Justification for Unethical CopyCat Behavior

Every so often, the ugly head of a monster in "maker land" rears its hideous head. The "No New Ideas" justification for Unethical Copycat Behavior. The horrible monster blows hot air and says, "we can all agree that very little is truly new," or that "there is nothing new under the sun."

While I agree that ideas are often culturally, historically, and socially based, and usually build on some precedent, this is no excuse to justify copycat behavior.  Copycat behavior is not OK and it is time we stopped thinking it should just be overlooked.  If someone copied you, it is not OK, and if someone else is copied, it is not OK. 

Even if we did not act in the past, I hope we have learned our lesson. Past behavior does not have to be a model of future performance. While materials can not be copyrighted, there is a point where appropriating someone else's signature use of material is copycat behavior.  Rampant examples abound of copycat twigs, stones, touchstones, beach stones, beach glass, earplugs, retro-romantic, wrapped wire, or fixtures that fit in your mouth. This is not an issue about sincerity, insincerity, like or dislike. It is lazy, self-serving, and misinformed.  Any rationalization for adopting someone else's signature style is unethical.

It is time to say, "STOP the copycats."  

Some people say they were "inspired" by someone else's work.  Read, COPYCAT. There is a difference between inspiration and copy.  Impressionists were inspired by Japanese prints, but they did not make copies of Japanese prints. Cubism was inspired by African art, but they did not make wood masks

The source of inspiration is not a template to copy but a departure point for personal exploration....moving well beyond the original territory of the idea. If you haven't moved far enough...then keep going, keep trekking on your own path, develop and experiment. Don't show, sell, display, publish or exhibit work "inspired" by another maker until your work has clearly moved beyond the inspiration with your own signature style.

In a related scenario, a gallery or store that sells a maker's work one year, and then a year or two later comes out with a similar line of their own work... that is too close to unethical for me.  I really can't justify such behavior.  It is copying, it is wrong, and a line in the sand should be drawn.

Harriete

Related posts  include:

A Twig Is A Twig Is A Twig*

Preventing Copycat Behavior

 This post was updated on March 31, 2022.

Preventing Copycat Behavior

Filing for Copyright is the best legal protection for your ideas, and it's fairly inexpensive initially.  However, it costs a significant amount of money to enforce and protect your copyright in court.  While the law supports the copyright holder, I believe that artists and makers also need to be more effective advocates for their work through additional proactive measures.

So what can you do to protect your art or craft from copycats?

 

Cynodon © Curtis H. Arima
Silver, 18k gold, patina

1. Create designs that can not be easily copied. This only happens if you develop your OWN techniques, style, or design vocabulary beyond the easily available resources. It will not likely come from a book, workshop, or tutorial. It comes from working in the studio, hour after hour, day after day to create new and distinctive capabilities. Taking your ideas, developing them over time, and making them better, different and unique.

 

 

 

Roots © Curtis H. Arima
Silver, blue and white diamonds

2. Avoid dependence on unaltered, manufactured, or natural found items. You may fabricate beautiful work, but if other people can find or buy exactly the same thing, it is easy for them to copy your work. This includes purchased beads and stones. The more common your source for the materials, the more vulnerable your work is to duplication. For example, beads purchased from Micheal's Craft Supply are easy for others to find too.  Telling everyone where you buy your stones is asking for "copycat" TROUBLE.

In contrast, cutting your own stones or purchasing from a more obscure source offers more protection from copycats.

 

Lamp Finial © Curtis H. Arima
Silver, 24k gold plated

3. Avoid teaching workshops that teach other makers how to make your signature style. This may not be a popular idea, but I can not figure out why the crafts community cultivates the idea that successful makers should teach their signature style or technique to a group of makers.

Why are we encouraging them to sell their artistic souls?

 

 

Entangled Connections
© Curtis H. Arima
Copper, silver patina
Photo Credit: Robert Couto

4. Jurors of exhibitions and craft shows should actively and vocally reject work that is "copycat" in nature. This includes jurors for student and emerging artist shows. While this is impossible to implement universally, jurors should be well informed.  As respected representatives of the community, jurors have the opportunity, perhaps even a responsibility, to reject copycats and promote originality.

 

 

Oxaic ©  Curtis H. Arima
Silver,  18k gold, patina

5. Everyone can help. Raising awareness and public discussion is the most effective remedy.  Whenever and wherever anyone sees copycat work, raise the topic with the sponsor, gallery, or exhibition.  Discuss the issue. What are the issues at hand?  Is it ethics, hurt feelings, impact on your market, or your reputation? There are many more possibilities but no doubt the community of artists and makers is hurt by copycats.

Harriete

Images in this post by Curtis H. Arima are inspired by twigs, branches, and roots.

Previous related post:

A Twig is a Twig is a Twig.

Copycat, copyright, or coincidence - simple steps for prevention.

Designing to Avoid Copycat, Copyright, or Coincidence.

Fair Use Guidelines

 

Next Post:  

The "No New Ideas" Justification for Unethical Behavior

This post was updated on March 31, to provide current links.

A Twig Is A Twig Is A Twig*

Recent emails and posts on Orchid/Ganoksin have drawn my attention to an unfortunate story related to jewelry made from cast twigs. I can't say who is right or wrong, though I am inclined to be sympathetic to the heartfelt story.

 

 

 

 

There are at least 4 issues raised in this discussion.

1. Accusations of copyright infringement (based on cast Twigs)

2. Preventing Knock-offs

3. The "No New Ideas" justification for Unethical Behavior

4. Behaviors Creating a Breeding Ground for Copycat Justifications.

This post starts with accusations of "copyright infringement" based on Twigs. 

There is no copyright infringement on cast twigs as a motif in jewelry, or anything else for that matter.  Picking up a twig off the ground, casting the twig made by mother nature, and using it as a visual element in a line of jewelry is not creating an original design element.

While some makers may believe they have created a signature style, creating a line of jewelry based on cast twigs is not original.

 

I did a search online for images of jewelry from twigs and readily found an enormous amount of jewelry with twig motifs.  Thus, the debate about copyright infringement ends up being a moot point.

Creating a signature style from any element that can be picked off the ground, or is readily available from mother nature makes you vulnerable to copycat problems. (To be discussed further in the next post.)

The author of the original post on Orchid states that she specializes "in setting fantastic opals in the work" which she was purchasing from "Eagle Creek Opals...Bill Kasso. This made the work particularly unique because Bill has a cutting style which is very special as well as the material he mines."

 No matter how special the opals, if other people can buy the same (or similar) opals from Bill Kasso (or anyone else) you are not adding any unique element.

Most of the images in this post are NOT credited to the maker to protect everyone from threats, lawsuits, incrementation, and libel. No endorsement or refutation is implied.

What may distinguish one piece of twig jewelry and the next in this post is:
1. The quality of the photos
2. The quality of the work (which we can not see in the online photos);
3. The price point (which varied widely);
4. Some people are making more money and a reputation than others selling twig jewelry.

What lessons can everyone learn from this sad tale? If you don't create every single element in your jewelry, you will remain vulnerable to copycat work. This applies to casting twigs or buying stones, no matter how special.

Yes, it is possible to create an original "Twig Bracelet" (right) by C.H. Mackellar, if you create your own twigs. This is an original design and is possible to copyright.

Yes, it is possible to copyright a clever term like "stick Pin" which Micky Roof says she has done. Unfortunately, even if you own the copyright for one particular idea, you need money to take a person to court to protect your idea legally.

However,.....there are more issues with the story. Stay tuned...

Harriete

Next posts:

Preventing Copycat Behavior

The "No New Ideas" justification for Unethical Behavior

*The title of today's post: A Twig is A Twig Is A Twig" is inspired by Gertrude Stein's  famous quote, "A Rose is a rose is a rose is a rose."

This post was updated on March 31, 2022, to provide current links.

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 on 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 has lectured across the U.S. 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 the copyright in a fair and open manner but often to control content (i.e. smother dissent with threats of lawsuits). I find that anti-democratic 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 it's 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 oblique 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 a 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 an 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 Pandora's box with this discussion or can we arrive at a broad consensus?

Harriete Estel Berman

Related Articles:

The GOOD, The BAD, and The UGLY in the Age in the Internet

Copyright Ownership vs. Owning the DVD

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

This post was updated on January 22, 2022.

 

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 Gollberg, 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 GOLLBERG:

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 effect 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 effect)?

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
A 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 onto 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

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.

This post was updated on January 14, 2022.

 

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 craftsperson 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 that 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 copyright. The contemporary use of quilt patterns may be drawing on this long history of "women'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 everyday 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

This post was updated on January 15, 2022.

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 Woodright's Shop all offer patterns for woodworkers. 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 anyone 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

This post was updated on January, 14, 2022.

April Flower Nutrition Brooch was 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. 
 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 thumbnail 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 itemize 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

This post was updated on January 14, 2022.

 

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 neckpiece (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

 

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 blunter, 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 neckpiece 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 neckpiece 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 small pens on your necklace (that looked as if it were 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 storyline 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 neckpiece, the point is that Fair Use does not protect the 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 Estel Berman

* 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. The image source can be found HERE. 

This post was updated on January 13, 2022.

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

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

This post was updated on January 13, 2022.

 

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 (FAQs).

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 distinguish them from those of others.

Ideas and discoveries are not protected by 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)

The next destination is the U.S. Patent and Trademark Office website.  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 website says that most trademark applications are filed online, a trademark is not as simple as copyright. From everything I have heard, it is expensive and a service typically performed by attorneys specializing in trademarks.

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 website 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 website: "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
This post was updated on January 13, 2022

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

 

 

 

 

 

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 is required.  So let's get real, When is it worth it?

  Copycat Won't Scratch © 2010
  Recycled tin cans, sterling silver,
  Artist: Harriete Estel Berman

If you intend to sue a copycat in court, a "registered copyright" provides a strong legal foundation. 

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 a strong case and the financial resources to hire lawyers and bring your case to court.  This is a 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 the "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.

UPDATE 2013: Thea Izzi points out that it has become common practice for designers to surf the internet for design inspiration. She says, "As an industry designer I use the Internet to trend source and find inspiration from the design and fashion world ... the rise of Etsy and Pinterest and other sites that cater to independent artists, inspiration can be found in abundance there too.

Copycat See'em   © 2010
Recycled tin cans, sterling silver rivets,
Artist: Harriete Estel Berman

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 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 your comments or share your experiences.

Harriete

This post was updated on January 13, 2022, to provide current links.

 

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 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 website 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. 

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. The 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 Estel Berman

This post was updated on January 13, 2022.

 

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 artists 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 coincidentally, 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.  

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

This post was updated on January 13, 2022.

 

 

 

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 coincidental, 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

This post was updated on January 13, 2022.

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 are covered in other posts.

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. The same goes for patterned metal sheets, pre-printed papers, etc. Create as many 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 everyday 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
 Candy box hold tacks that look like
  M & M's -

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
  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 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. Innovate beyond your original inspiration. 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 artists and makers teach 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 your ideas with others as a comment. 

Harriete Estel Berman

 

*Download "CopyCat, Copyright, or Coincidince: Maker Beware" by Harriete Estel Berman written for Metalsmth Magazine. 

 

This post was updated on January 13, 2022.

 

 

 

 

 

 

 

 

 

 

 

 

 

Harriete Estel Berman by ASK Harriete is licensed under a Creative Commons Attribution 4.0 International License.
Based on a work at http://www.askharriete.typepad.com.

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 copycats infringe on 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. Artists 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

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

This post was updated on January 13, 2022.

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 justify the 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? All of us are hurt by this practice. 

The remainder of the article goes into more detail 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 in the 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 an 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

This post was updated on January 11, 2022.  
 

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 the 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.  This is especially true if the cards are over 75 years old. 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, however, I encourage artists to develop 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

Harriete

This post was updated on December 27, 2021.

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

 

 Quick Set, Diabetic for Life Series 2008
 Materials:  Silver, garnets
 Photo credit: Michael R. Erdman 

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
 Materials: 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. 

Harriete Estel Berman

This post was updated on December 27, 2021.

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.

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