Monday, May 24, 2010

Copyright for Artists 1A

I need to get off the soap box and back onto art and creativity-subjects which are uplifting and tend not to raise my blood pressure.

I had been asked to post this to an ATC group’s database of info so I thought I should also post it here.

This information is based on my 40 years experience as a working artist and may offer some help to those who need guidelines on copyright and licensing information.

Copyright is a very complicated issue; books have been written on it and lawyers have made their fortunes on it.

Things made for your own use while they impinge on copyright will probably be ignored-sell anything which impinges on anyone’s copyrights, trademarks etc. and you are in danger.

DISNEY especially and many of its subsidiaries are very militant about copyright they go as far as to send people to craft shows to stop people from using their characters and brands-avoid them---they usually give warning but have been known to just file a lawsuit.

Fine art regardless of its age may be subject to copyright by the owner-the Getty Foundation, MMA, MOMA and others have large legal departments-again what is done for fun is fine but sell it and you are on thin ice,

ALWAYS ask an artist before posting any of their work online or elsewhere-what you do as an homage may be the door to the art being lifted by another entity-I had licensed artwork to a cross stitch company and the images printed in catalogs ended up on t-shirts and as rubber stamps---be sure if you do get permission you keep a copy of the email in hard form including all headers-since they are independently dated and timed they have some legal standing to protect you for litigation.

Understand what licensed means-a company can buy the rights to reproduce your work-adapt your work or otherwise draw from your work in a substantial manner.

They buy the rights from you to use your work but you always keep the copyright on your originals.

When the company produces a product (card, t-shirt-rubber stamp etc) they will copyright their item to protect it from others using the design.

A company can buy sole rights, first rights or some exotic version of the two-for instance my most well known piece began as a pen and ink original from which I did a limited edition lithograph-a company licensed the drawing as the basis for a needle work kit, another company wanted to use it as a t-shirt and since my contract with the needlework company expressly licensed only for craft kits after a courtesy call to let them know-I licensed the design to the 2nd company for t-shirts-mugs-totes and other wearable items.

Company 3 contacted me to do a limited edition doll from the drawing-I checked with both of the other companies as a courtesy and then OK’d a license for the dolls and a possible porcelain figurine.

I found out that a company had knocked off the design from the catalog for the needlepoint company and was using the design as a rubber stamp-I was able to force them to stop since I had 3 other companies using the design and I immediately offered the design to a rubber stamp company I worked with to make sure a good version was on the market with a proper license.

By the time I retired this design it had been over exposed but had also made me a fair amount of income for letting other people use it.

It was the first of many items I licensed and since I knew little about copyrights and contracts I found an ART LISCENSING ATTORNEY who helped me with the initial contract and taught me a great deal about the licensing and copyright business-after that initial consultation I was able to do all the rest of my contracts myself-occasionally asking for his help when something new came up.

Paying a professional at the start and doing your homework will save you heartache and money later-every artist should be conversant with how copyrights work and how licensing works-the difference between a trademark and a logo and how to register both-the information is available on the internet for no cost but if you are not fast with “legalese” (the language of the law) hire someone to help you.

ALWAYS keep paper copies of every correspondence you have concerning any legal issue and make sure they are in a safe place-I lost a contract by being too cocky and it cost me thousands of dollars when I couldn’t produce it to sue a company that had defaulted on payments.

ALSO friends are friends but in any business arrangement - WRITE IT DOWN -SIGN IT-have it NOTARIZED and file your copy in a safe place-you may keep your friend that way rather than ending up in small claims court-and don’t exclude relatives---GOOD BUSINESS is GOOD BUSINESS-anyone who isn’t willing to have an agreement down on paper should not be attempting to do business OR is afraid they will have to fulfill their obligations and don’t want a contract in case they fail---PASS on that deal.
Hurt feelings today are better than a court case in a year.

Magazines are copyrighted and may have copyrights on copyrighted material-it becomes very complicated-collage using images from magazine should be more colour and shape than actual cut out pictures-portions of text etc can be used but no more than a certain number of letters or words in a string---do not then scan and reproduce the collage-there are digital copyright laws that add cause for litigation when you copy a copyrighted item-like scanning a hundred dollar bill-avoid it

A safe bet is the use of ephemera sheets (comercially available images sold in shops and online) but be sure they have a copyright and keep the copyright information from the sheet in an envelope-most companies tell you how you may use their items.

I bought a set of copyrighted computer disks from Ebay with thousands of images on them and a warning that the images were protected under copyright-most of the images had been lifted from DOVER publications and were already under their free use agreement.

In this situation I use the images under the DOVER terms since they are a large company and were probably the source for the images anyway-but I avoid using them in any way outside of the Dover Terms and any of the images that I cannot find in the Dover catalog I don’t use at all.

Always protect YOURSELF first.

You may think you have no property or assets worth anyone’s time to sue you but there are people who make a living filing lawsuits-there are court costs and if you lose the winner of the suit can empty your checking account or other such nasty surprises before you are aware of what’s happening.

ALWAYS PROTECT YOURSELF FIRST-if in doubt don’t do it or don’t use it.

SERIES can be a set of TAROT designs, Alphabets, any set of cards that forms a series of images-the 12 days of Christmas etc...I often do series sets, Vampires, Cities etc.

Copyright the individual images and then also copyright the series-check your state laws and federal law for what is acceptable copyright protection for an image where you live-in some states assemblages (even of copyright free material) are not able to be protected under copyright.

The old artist’s trick of sending yourself signed copies in a certified letter and filing the sealed letter hasn’t been holding up in courts lately (2010).

Stray to the side of caution and avoid the possibility of problems-usually you will get a stern letter but in a litigious society some will just come after you with a lawyer and while it will probably come to nothing is it worth the stress and hassles?

What you do with work that you draw or paint by hand yourself is up to you- as I explained above many of my designs have been used by various companies at the same time in different ways-rubber stamps, dolls, t shirts, craft kits-in that case the companies doing the production protect their product while I have granted THEM copyright-if their copyright is infringed I must then support them by protecting my copyright-in an international case this can be horribly expensive.

Not many of us can stop someone in China from producing and selling products made using our artwork but it happens-some may remember that a year or so ago friends went to Prague and found items using designs taken from my website being used and sold on items by street artists-I know that some of my older drawings are done on t shirts in China but are not sold in North America-a friend on a trip to Buenos Aires brought me one back complete with my signature intact

In most cases you just have to shrug and let it go - it’s part of the risk of putting your work out there but it’s also infuriating so before you use someone else’s work as part of your own or even love it enough to share it online consider the ramifications and proceed with caution and consideration.

This information is not posted as legal advice and should be used as a guideline not word of law-the contents are based on my empirical research and as such may include information that is out of date.

It's worth saying again-PROTECT YOURSELF and always lean towards caution when using content with dubious pedegree.

This article cannot be used in whole or part without the express written permission of the author (Rick St Dennis copyright 2010 all rights reserved national and international Seal Beach, CA USA) and is specifically loaned for the purpose of information to members of ATC World on YAHOO GROUPS-May 2010-use without permission is subject to litigation under the laws of the State of California, United States of America, from which the original PDF e document was posted.

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