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What Artists should Learn from the Art4Love Scandal: Busting the myths of copyright infringement Part 1 - Profit

by Brian Sherwin on 8/23/2011 3:40:01 AM

This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog and Art Fag City.  This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.  You should submit an article and share your views as a guest author by clicking here.

 

The Art4Love scandal has sparked a lot of debate about copyright and the rights artists have to protect images of their artwork from copyright infringement. I'm finding, yet again, that artists -- in general -- know little about copyright overall. There is widespread confusion about copyright. The old myths of what is -- and is not -- copyright infringement have crawled out from behind the walls. Thus, I feel that it is important to take on each issue step-by-step. I know I have covered copyright registration before -- but clearly I need to look at key points one at a time.

 

For those who don't know -- the Art4Love scandal involves a commercial art site, and its alleged owner -- Chad Love-Lieberman, that allegedly infringed on the copyright of over 300+ artists from the deviantART.com community. The site apparently copied images of art from deviantART, changed the titles of the artwork, and failed to credit the artists for their work. My understanding is that Art4Love promoted the art as having been created by the site owner and involved names of 'made up' artists as well. Note: Art4Love has been shut down.

 

One of the biggest copyright infringement myths I've seen floating around the Internet over the Art4Love scandal deals with profit. That myth being, "If profit was not made it is not copyright infringement." In other words, people are saying that Art4Love may not have committed copyright infringement if the site had not made profit on the listings of 'stolen' artwork. Wrong, wrong, wrong... and this attitude has been proven wrong in court.

 

A recent deviantART press release does not help the matter -- stating, "As a note of caution, we don't have all the facts. For example, there is not yet confirmation that any prints were ever sold," among other things. It does not matter if Art4Love sold the prints or not! Copyright infringement is copyright infringement. If Art4Love actually sold prints, the artists - at least those who registered copyright prior to the infringement - would likely receive more in statutory damages. However, even if prints were not sold it is still copyright infringement and the artists involved may still have a case against the website and owner -- and receive damages.

 

Why is it copyright infringement? Because the artwork was re-titled, the name of the creator changed, and it was placed under a listing on a commercial art site -- all, allegedly, without the permission of the artists behind the work. Point blank -- even if Art4Love failed to sell any prints involving the 'stolen' images the site and owner may still get hit hard if a case goes to court. Why? Because the those behind the alleged infringement "willfully" and "knowingly" committed copyright infringement. Furthermore, the act of listing images of the art on a commercial art site for sale harms the commercial value of the infringed images -- especially when you considered that titles and authorship were changed to deceive the public.

 

In addition to the above, I have a feeling that if this situation goes to court the judge will likely want to make an example of Art4Love and its owners. Commercial art sites have not been tested much in regard to copyright infringement in court. So it is safe to say that a judge may want to send a message to other copyright infringers online -- especially owners of commercial art sites who may directly or indirectly profit from situations involving copyright infringement.

 

In fact, the outcome of a case like this could change the commercial art site industry -- forcing social art sites and other commercial art sites involving listings of prints for sale to do more in order to protect the copyright of their members as well as the copyright of individuals and companies who are not members of the site. In that sense, I truly hope that the Art4Love issue is resolved in court.

 

The whole 'if I don't make money on images I'm not violating copyright' idea needs to be cleared up. Point blank --the infringement of copyright is not excused simply because profit was not made. The motivation does not matter. True, there are safeguards for news media and other sources (for example, most art sites have TOS agreements that stipulate that they can distribute uploaded images for site promotion) -- but uploading images of the works of others simply because you feel "art should be shared with everyone" does not mean that infringement has not occurred. Point blank -- copyright infringement is illegal.

 

As for profit -- and if Art4Love made profit or not -- violating copyright is illegal no matter how you try to validate it. True, there is the defense of 'fair use' -- but I fail to see how Art4Love would be able to use that defense adequately. As for 'fair use' -- people need to stop thinking it means that copyright infringement is acceptable -- or that infringing on copyright is "protected because of fair use" -- or any of the other variants of this nonsense that I've seen over the years. Point blank -- most who wave the banner of 'fair use' -- especially online -- don't know what they are talking about... or are doing so because the myths surrounding 'fair use' benefit their practice and business.

 

In fact, 'fair use' is merely a defense against a claim of copyright infringement -- it is the defense you would likely use in court if someone filed against you for using a copyright protected image. It is not a "protection outside of court", as some suggest.

 

More copyright topics -- and copyright / copyright infringement myths busted -- to come.

 

Take care, Stay true

 

Brian Sherwin



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Related Posts:

Copyright Rules the Throne: An Art World Prince Fails to Prove Fair Use

Art4Love Copyright Infringement Scandal: Chad Love-Lieberman - Art Scam King?

When Copyright Infringers Become Victims... Part 1 - The Corporate Angle

Copyright Registration: Protecting Yourself as Well as Your Collectors

How do we protect our copyrighted images on the Internet?

Appropriation Art Meets De-Appropriation Art -- An Art Movement Born?


Topics: art marketing | art websites | Brian Sherwin | copyright | FineArtViews | Instruction | selling art online | Think Tank 

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 55 Comments

Ryan
via faso.com
I read the Deviantart statement. Kind of looks like they won't help much if profit was not made. I wonder if that is a strategic decision? If they did not offer they would look bad to the DA community. But it would be foolish for a commercial art website like DA to go after another commercial art website for copyright infringement cuz' there are hella lot of infringement going on at DA. A court ruling against Art4Love might come back to haunt DA. They are caught between a rock and a hard place on this one. Damned if they do and damned if they don't.

Marian Fortunati
via faso.com
Although I love the internet and the fact that people from anywhere in the world can look at work from anyone and anywhere, the problem of misuse of images of our work will probably always be there.
Thanks for a bit of further clarification on the issue.

Sharon Weaver
via faso.com
I think the reason why most artists confuse the issue of making money from copyrighted images with the legal issue has to do with how the world views criminal acts through a lawyers eyes. There is the criminal side of the issue that concerns the law, and then the civil law side. This distinction is not necessarily the motivation for copyright infringement and many copyright cases have to do with getting an injunction to stop using the image. Punitive damages are often not the main focus of copyright cases so making money on the images is not necessarily the driving issue of the defendant.

bettypieper
via faso.com
The best property rights attorney I have heard is Paul Rapp...He has a website http://paulrapp.com/articles that might shed some
light on this. The area is so complex.
One thing I learned long ago is that what is law does not necessarily equal what is just or fair.

Donald Fox
via faso.com
Copyright infringement can be a legal minefield. Since most artists are not schooled in law, they would be wise to avoid any situation that might put them at risk, i.e. copying photographs or the work of other artists. As for protecting their own work, in the U.S. a creative work is protected under copyright law as soon as it is created. But, as this article so clearly points out, being copyrighted doesn't guarantee non-infringement. I look forward to other posts on copyright issues.

bettypieper
via faso.com
Yipes...I meant intellectual property rights
attorney for Mr. Rapp...not (real) property-

Esther J. Williams
via faso.com
Brian, thanks for this article, maybe it will keep some people away from breaking the laws. I have seen a few postings on Facebook of artists whose beautiful southwest Indian art is being copied and offered for sale on a website with minor changes made. It is outrageous that someone has the balls to do that.
I once was told that a twenty-five percent change is all it takes to not be guilty of infringing. The laws so not state that whatsoever. It mad me mad that a big art dealer I knew was accepting of that. I do not do business with him anymore. I was afraid one of my works would be changed and copied then offered as prints.
Talk about what is going on overseas in China. They can download your work and then paint something just like it in a factory. We are just supposed to keep painting and look at it as a compliment. Go figure.

Esther J. Williams
via faso.com
Sorry, I meant the Laws do not state that whatsoever. It makes me mad that a big art dealer I knew was accepting of that.
I think my broken nail is at fault for those typos!

I have had dealings with the Mattel Corporation about sixteen years ago when I was painting the Barbie and offering it as a print. I was having a conversation with heads of one department who thought prints were a good idea. Their law department contacted me and said absolutely not. I never intended on doing anything to infringe, I was ASKING permission and was denied, plus threatened. I studied the copyright laws in depth as a result. When it comes to big companies with trademarks and copyrights, they do not fool around. They have millions and are very powerful. But when it comes to a single artist whose art is infringed upon, it is extremely costly to prosecute and protect out original artworks.


Jan Schmuckal
via faso.com
A Cautionary Tale -

I am currently embroiled in a distant cousin in similarity to the art4love scam - though my own embroglio is as follows:

A very well-known artist began purchasing my work directly from me about a year an a half ago - at first, I was flattered, as this artist has a decades long reputation. I inquired, puzzled, as to why she would want to purchase my work, as she was a well-known artist in her own right, and she told me that she was no longer painting as she had MS, and that she REALLY loved my work, and had three homes with her new significant other that she was re-decorating so no worries, I was told, she had a lot of walls to fill.

I actually questioned where she was hanging all of these paintings at one point earlier on, and the assurance was made that whe had three homes she was redecorating, she was just getting started!

The first painting through the third that she purchased were all commissions of re-formats of paintings I had done prior (different dimensions, etc.) and she kept buying them periodically over the span of the year and a half, some commissions and some outright purchases, all accompanied by enthusiastic praise, and photos of the rooms/wall where the commissioned pieces were to ultimately be hung.

At the six month mark, she told me that her friends and neighbors were so enamored with her decorating efforts that they had engaged her to do some design work for them in the same vein, and thus, she was installing some of my work in those circumstances.

I have absolutely no issue with anyone who wishes to re-sell my work whatsoever - I sell to dealers regularly, so that's not at issue, and had no problem with any of the statements she made.

Until....

I was advised by one of the dealers who purchases my work from me that he had been at a show as an attendee and had seen "One of my paintings with somebody else's signature on it" - this was somewhat after the fact of the show, and he had been under the impression perhaps that I painted under different names (there are artists who do) and had informed me of this at some months later.

I told him that in fact, no, I do not paint under different names. (My last name is unusual enough, thank you!)

I contacted the show promoters, got a list of the vendors, and did some homework at that point to try to figure out who might be re-signing my work, but did not come up with anything, so, I simply posted a note of my Facebook art page to alert folks to the fact that somebody was doing this and to let me know if they happend to see one of the paintings.... posted this back in March.

About an hour after I posted this notice, I got a lengthy email from my artist-buyer telling me how awful that was and that similar things had happened to her in the past with publishers, etc. She said she would keep a lookout for any such paintings.

Fast forward to about two weeks ago.

I was contacted by the buyer of the painting that my dealer who had told me he had seen "one of my paintings with someone elses' signature on it" - and he informed me that in fact, it was my famous artist buyer who had signed the painting.

He then informed me that he know personally of at least four of my paintings that she had not only re-signed, but had removed my title, copyright info, and any other identifying info from the back of the canvases and supplanted it with her own - even including COA's stating that she had produced the work.

Upon further investigation, I determined that in fact, she had been doing this very thing with each and every painting she purchased from me - including all of the commissions, and all my own signatures were painted over or wiped out and replaced with her own. She did absolutely nothing else to the actual paintings, themselves. She did re-title each painting, and wrote her own title, name and copyright on the back over a re-gessoed spot on top of what I had written.

I counted up the total number of paintings that I sold to her - and it's somewhere between 35 and 40.

Needless to say, the famous artist, because of her own name and reputation was able to charge beyond premium prices for the work that I had sold to her for a tenth or less of what she had paid me for the paintngs - which really bugs me, but that's not at issue - it's the fraudulent part of what she did that has me flummoxed, and the extent to which this situation had gone.

I like to believe that I am not a completely gullible person, and in most cases, I know when I can take someone at face value and when I can't - but this woman was G-O-O-D. She knows exactly what to say to whom.

And, I found out that I was not the only artist involved, that there were two other artists to whom she had been doing the same thing - and I spoke to both of them, and supplied proof of what had been done, as neither of them could believe it themselves.

Here is the cautionary part - even though you have cut and dried evidence of fraud, and no matter how rampant it may be, there is no lawsuit or case that can be brought against someone who perpetrates fraud like this in a nationwide situation - the Federal govenment will not become involved until it reaches a certain dollar amount threshold, which is in the millions, and thus, con artists like my famous artist buyer can get away with this sort of activity. Which leaves myself, and other "wronged" artists in the situation of frustration and wanting some sort of justice done, however, the reality is that the only thing I would get from pursuing this woman is a big legal bill. I have had to concentrate on focusing my energies on not focusing on this issue.

Just beware selling a lot of work to any one person, guys!







Jan Schmuckal
via faso.com
There is much, much more to the story, but that's the gist! And no, this famous artist does NOT have MS (unless you didn't get that)

Jan Schmuckal
via faso.com
I do have an amount of information, and you can see the paintings involved in my facebook photo album marked "Special" - apologies for the bad FB links on the above posts, I use a secure connection and it won't go through as a link here I see, but the link on this post will work.

Donna Robillard
via faso.com
Brian, I enjoyed reading the article. Thank you for bringing this kind of thing to the forefront. You are good at keeping us informed of things that are going on; and because of that, we can take a few more precautions.

Brian Sherwin
via faso.com
Jan, were your works registered with the US Copyright Office? Concerning lawsuits... it does not have to involve millions for a lawsuit to occur. In fact, profit does not have to take place at all. I'm not sure who told you otherwise.

In fact, in most cases like this you are not going to know how much was made by the copyright infringer until the case is in court... and motions of discover, and such, happen.

Not to mention that there are organizations that are more than willing to take on situations like this. Take for example, Volunteer Lawyers for the Arts in New York: http://www.vlany.org/aboutus/index.php

You said, "the reality is that the only thing I would get from pursuing this woman is a big legal bill"

Again, were the works registered prior to the infringement? If so, and infringement is proven... the infringer would be burdened with your legal fees. This is why copyright registration is so important -- especially if a work of art is good enough to sell.

Brian Sherwin
via faso.com
As mentioned... there are volunteer organizations that focus on art law that will champion artists... even if the works were not registered with the US Copyright Office.

Brian Sherwin
via faso.com
Prior to the infringement that is...

Barb Stachow
via faso.com
I was told by a famous artist that no one can own the rights to a landscape painting because no can own our parks...so if a person changes colours or makes a mountain a little differnt then it no longer is copyrighted by the artist who first painted the scene. This copyright stuff can really be difficult to get ones mind around!

Brian Sherwin
via faso.com
Barb -- Landmarks can be 'iffy' at times. However,in regard to landscapes in general -- the artist does have copyright of the work he or she created. He or she has copyright of that specific image. In other words, you can't take the landscape painting and mass produce it as a print without the permission of the artist. On the other hand, the creator of that specific painting can't stop others from painting the same scene.

I suppose there could be situations where it would be infringement to paint the same landscape... for example, say painter 1 paints a landscape of property that he or she owns. Then lets say that painter 2 trespasses on painter 1's land and paints the exact same scene. In that case, I suppose painter 1 would have room to complain. I'll have to ask around about that.

Brian Sherwin
via faso.com
Marian -- The problem will continue to exist. However, with each court ruling”¦ each legal precedent made... we end up with a better understanding of what is acceptable and what is not. I think the important thing for now is to understand some of current law and to realize that 'fair use' comes with a risk. After all, Chad apparently claimed to be the artist behind some of these allegedly infringed images... he may very well attempt to claim 'fair use'. That said, I don't think his argument will get that far.

Sharon -- True. Protecting reputation, and dare I say -- legacy, can also be the motivation for going after an infringer. The Bob Marley estate recently did just that... and ended up awarded $300,000 to boot.

Donald -- I'd also say that more artists need to take responsibility for registering their artwork with the US Copyright Office. Honestly, if you place your work for sell you should believe in it enough to add further protection in case a situation like this happens.

Contrary to what some have said, it does not cost that much -- especially if you register the work as a series. For the cost eating out a few times and going to see a movie... you can register your work -- protect yourself as well as your collectors. In general, the average adult in the US spends more per month on cable and Internet fees than what it would cost to register a work of art... or series of works.

Brian Sherwin
via faso.com
Esther -- You make good point. And yes, you can technically be hammered for infringement even if the 'new' image only involves 1 percent from the copyrighted image.

As for your use of Barbie -- Barbie is iconic. As long as the works contained some form of 'social commentary' or 'parody' you would have good room to use 'fair use' as a defense. All depends on the context of how the iconic image/figure is used.

As for the cost of lawsuits. If the work is registered prior to the infringement, and the infringer loses, he or she is hit with the burden of your legal fees. Furthermore, there are several organizations composed of volunteer lawyers who will take cases like this on for free... obviously they will want a cut of whatever damages are awarded.

In addition to that, if the works are registered with the US Copyright Office before the infringement the copyright owner does not have to prove anything... the infringer has the burden of proving that the use was 'fair use' or that he or she had permission to use the copyrighted image.

Now... I know many people get angry about having to pay the government to register artwork. I've seen that complaint a lot lately. That said, do keep in mind that many artists fought for these rights... and that there almost has to be an 'official' way to handle it if you want it to uphold strongly in a court of law.

Brian Sherwin
via faso.com
Popeye the Sailor dressed in drag while eating a can of steroids is a perfect example of 'parody' under 'fair use'.

Mickey Mouse killed by a mousetrap is another good example of 'parody' under 'fair use' -- and like the above, could be considered 'social commentary' as well.

Harry Potter having his scar removed by a plastic surgeon is another example of 'parody' under 'fair use'.

Super Mario getting 'high' from eating mushrooms would be another example of 'parody'.

Sonic the Hedgehog tripping over those gold rings he likes so much could also be considered 'parody'.

The ring from Lord of the Rings being melted down to help pay off the national debt would be both 'parody' and 'social commentary' in my opinion.

The characters of Twilight being killed by the characters of True Blood while the characters from The Vampire Diaries tremble in horror would likely be upheld as 'parody' under 'fair use'.

A notable work of art, still protected by copyright, by a famous artist with the words 'This Painting Cost More Than My Liver' added to it would likely be considered 'social commentary' under 'fair use'.

There is actually a lot an artist can do with copyrighted/trademarked images based on current copyright law and 'fair use'. Now.. the copyright owners could still file a lawsuit -- but they would most likely lose.

In fact, an attorney recently told me that Disney has not been able to win a copyright lawsuit yet in regard to images involving 'parody' or 'social commentary' sold as shirts and posters.

Brian Sherwin
via faso.com
I should add that 'parody' and 'social commentary' under the fair use doctrine normally only holds water if viewers know what is being parodied or commented on. In other words, if I take a work of art from an artist that is not well known, photograph it, and add to it in a humorous manner... it would likely NOT uphold as 'parody' under 'fair use' in court.

Now, if I took the Obama HOPE poster by Shepard Fairey... changed the words to NOPE... and included images, under 'fair use' I could probably use any image of protestors throwing things, of angry tax payers pelting Obama's portrait with clay dollar bills... it would likely be considered 'parody' and 'social commentary' under the fair use doctrine. In other words, the AP or Shepard Fairey could try to sue me for copyright infringement, but due to the iconic status of the HOPE poster it is likely that they would not be able to prove infringement. I would likely walk away facing no penalties... and make a fortune off of selling shirts and posters involving the image.

Brian Sherwin
via faso.com
And as for Fairey and why he got into trouble for using the AP owned image of Obama -- one of the things that worked against him is that the image itself was not an iconic photograph. People did not see Fairey's poster and say to themselves, "Wow, that is a parody of the AP photo of Obama".

Margi Lucena
via faso.com
A well known artist, working in both pastel and watercolor, painted really beautiful works which were later published in "The Best of Pastel, 2", and another,in "Pure Color,the Best of Pastel". The "stories" that went with the two paintings in those books told very touching details about how the artist had met them, photographed them, and was so moved by the subjects and the sad circumstances of their lives. He just had to paint them. Well, I later learned that these two paintings were copied right out of National Geographic and Life magazine. You could have knocked me over with a feather when I saw the images in the magazines. This is no beginning painter who dosn't know any better...

Esther J. Williams
via faso.com
Brian, I learned all about 'parody' and 'fair use' along with painting a single use not for reproduction. In fact, I was painting Barbie in situations for a little while and selling the originals. The company lawyer agreed that I can sell original paintings with a signed release. A little statement included in my COA was no reproductions are allowed under copyright law. I am not affiliated with Mattel, etc...

An aside from this; There is an LA artist right now painting big name banks on fire. He had the police at his door asking him if he has terrorist tendencies. Of course he said no, it is a social commentary about the monopoly of the banks. He is getting a lot of press about it and offers for the 1st painting. It was put on eBay and is up to $5,200. His name is Alex Schaefer, he painted another one of the B of A on fire. It is causing a lot of chatter, he has had interviews and tv requests. My wonder is if both big banks will try to sue him next for using their names in his paintings. But as you say, he is only taking a normally overlooked bank building (with the Bank name on it clearly) and painting flames rising high overhead. Definitely a social commentary. Pretty risky.


Brian Sherwin
via faso.com
Barb -- As for your landscape question... the following is from a law friend who has over 30 years experience. I broke down some of his key points -- I know from previous interaction that he would prefer to remain anonymous:

"Landowners do not "own" the image of the land they own. Landowners rights in that respect are limited to rights to control access to their land. A landowner can recover damages for the tresspass but I know of no cases (doesn't mean there isn't one) in which damages were claimed for gaining access to a view that was otherwise restricted for the purposes of preventing artistic renderings of the view."

"Buildings (including some structures that might be found in a garden) are another matter. They can be subject to copyright and thus making pictures of them can violate the copyright in the architecture. But there are unique limitations to the scope of copyright in a building - - one of which is that the general public may photograph it without violating the copyright if the photograph is taken from a place of public access or any place in which the photographer has permission to stand."

In other words, there are some buildings that you can't include in your landscape painting without permission. Again, depends on the context I suppose... and if parody or social commentary is involved.

And he also added that there are, "special laws protecting special places from commercial exploitation, for example, the Eiffel Tower."

Now, the landscape artist, in general, would own the copyright to his or her specific image. But it also depends on how the landscape painting came into being. For example, if he or she used copyrighted photographs there could be a problem if the owner of the copyrighted photographs can show that the painting is line for line, for example, based on that specific photograph. I see that Margi just hit on that as well.

Think AP vs. Shepard Fairey... which was obviously not a landscape situation... but shows how risky it can be to use a landscape photograph found online -- which I know happens often -- to paint images of the same landscape. When in doubt, ask the photographer -- most will be willing to help out as long as you give them credit for the photograph.



Brian Sherwin
via faso.com
Esther -- I've read about him. Clear 'parody' and 'social commentary' in my opinion. I'm sure they can sue him if they desire -- but just as sure that a law firm would jump to defend him.

Side note: What he has done is the perfect example of exploiting media to jump-start, or further, interest in your art work. He is, in a sense, creating controversy -- which in this situation is perfectly acceptable in my opinion. After all, I'm sure his choice to paint outside of the banks was a choice based on knowing it would catch media attention. That, in itself, is not something you see everyday while going to cash your payroll check.

It kind of goes back to some of the things Luann has been writing about lately with the Tell Me a Story series for FineArtViews.

Jan Schmuckal
via faso.com
The issue of a particular landscape having copyright protection came into play, not with me but other artists that I spoke with who also were participating in a Plein Air painting event this past summer - they were told to ask permission to paint a certain garden, for example, even though they would set up on public property - the issue, as they heard from various property owners, was that the artist was going to profit, via their painting, of their own hard work and tangible property (the gardens) and, the property owners had a problem with this issue of an artist selling a painting of thier house and environs for a thousand bucks while they were on food stamps, for example.


Margi Lucena
via faso.com
Brian, in the instance of the artist and the magazines..you could have laid the paintings over the images and gotten an absolutely exact copy of each. They had to be projected...

I was recently asked by a client , through a gallery representing me, to do a landscape. The client sent me the image, and there was a copyright and sig. on the photo. I was able to get in touch with the photographer and ask permission, which he graciously gave. I gave him credit under the title. He was at the time embroiled in a legal dispute with another photographer who had put his own sig. and copyright on a lot of this photographer's work and posted it on his website. He was happy someone asked first!

Jo Allebach
via faso.com
This is all amazing to hear about this copyright information and those who infringe upon it. Thanks for ALL this info!!!!


Margi Lucena
via faso.com
Hey!! Ummm. Brian, the images beneath my comments on this blog are by Natasha Isenhour..they say "art bt Margi Lucena"..Nat is my dearest friend and studio/gallery partner, but I am not taking credit for her work..(LOL)..this is great timing...


Phil Kendall
via faso.com
Fortunately in the UK the architect's plans are only copyright for 15 years so a 16 year old building is fair usage for the artist.

Provided that the building can be seen...
photographed...painted etc. from a place that the public have free access to...then that building has no copyright.

The inclusion of a copyright protected trade mark sign in a street scene work of art is also not a copyright issue...

As I have said in the past, over here in the UK we are perhaps a little more relaxed. But then our legal system has 1900 years of case law that provides a good measure of common sense.

Brian Sherwin
via faso.com
Phil -- what about copyright in general in the UK? For example, are paintings only copyrighted for a specific period of time? Or is it the same as the US... still copyrighted well after the artist has died?

Janet Steinman, Esq.
via faso.com
Great article! Yes there are many myths about copyright out there. Copyright infringement is defined as unauthorized use of a copyrighted work. That's it. You do not need to make money from it in order to be guilty of copyright infringment. Please note that there are also criminal penalties for copyright infringment; as in fines and jail time. I hope the court throws the book at art4love. There are also a lot of misconceptions about fair use. You do not have a right to fair use; fair use is a defense to a lawsuit. I see people who post videos and copy the definition of fair use from the copyright code under the upload. That's gives you nothing. The only way to find out if your use is fair use is if you get sued and you don't lose. Two things to protect yourself - first, mark everything you post on line with a copyright notice (this way no one can claim the defense of innocent infringer) and second, do everything you can to protect your online works technologically.

Phil Kendall
via faso.com
Phil -- what about copyright in general in the UK? For example, are paintings only copyrighted for a specific period of time? Or is it the same as the US... still copyrighted well after the artist has died?
Answer is Life-time 70 years...

Carol Schmauder
via faso.com
Brian: Thanks for sharing more on the topic of copyright. It seems to be a complicated issue.

Jan: I am appalled at what has happened to you. My mother did a painting as a gift for a neighbor and when she visited the neighbor at a future date she saw that her name had been painted over the neighbor had replaced it with her own name. It was shocking to my mother, to say the least. It is even more appalling that the person dealing with you had such gall as to steal your work and sell it. She probably hasn't ever painted in her life. People who con others are usually very good at what they do.

Jan Schmuckal
via faso.com
Carol,

Yes, I too was amazed - what you folks need to understand is that this artist who re-signed my work is RELATIVELY FAMOUS - no kidding - not quite as "famous" as, say, the "painter of light" (you know who THAT is) but famous enough I would guarantee you have seen her work.

Jan Schmuckal
via faso.com
And to comment a bit further, since this situation has been foisted upon me, did I do some research in to whether anything that this artist has done in the past were her own artwork? You bet I did! ANd you know what? You are right. She didn't do any of it. Well, I can't say exactly that - but I will say this - she is a VERY GOOD tracer (with the work she is well-known for) but what she did with these paintings - and between the three artists affected it's well in excess of 100 paintings - is beyond the pale.

Margi Lucena
via faso.com
Jan, this is a real horror story! I feel such frustration and hurt for you. Can't anything be done?

Margi Lucena
via faso.com
Plus just plain pissed off!!


Jan Schmuckal
via faso.com
Oh, it would be beyond awesome that SOMEBODY in the media did an expose on her - the problem is that the end buyers of these paintings - those that can be found, at any rate - either want to pursue their own individual cases through their credit card or other means (which is totally understandable) and because this woman actually PURCHASED my paintnigs from me, I don't think I can go after her financially - but she is truly a con artist and needs SOMEHOW to get her due - and frankly, some sort of media exposure would be awesome - that way, I can actually then talk about it as it would then be "public knowledge". There are periodicals that have written informative articles about her in the past, and in which she advertises, but I have been told that "they don't do those kinds of articles" - it would be more or less analgous to the fact you don't read exposes in, say, Architectural Digest.

Esther J. Williams
via faso.com
Jan, I am terribly sorry this has happened to you. It seems this artist has scammed others and should be stopped. Like Brian said there are people who know the laws and try to protect artist`s rights. I know it is a lot of work, but she took away 40 of your works and claimed they were hers, that is forgery and punishable by law. Even in a small claims court it seems you would win. But this is not small claims, 40 works, that is quite a lawsuit. I would not pity this person, she is pitiful.

H Margret
via faso.com
Making money from the art isn't the point. The Love site took the art for its own use, refused ownership to the creating artists, and then wanted to be absolved of the theft.

They stole use of the art. Why isn't the art community itself punishing these companies by numerous complaints?
For myself, I make it a point not to put much on the web. It's a dangerous place.

Jan Schmuckal
via faso.com
Oh, you would THINK it's "punishable" - but I have found out that the reality is it's only punishable if I can find a majority of the buyers of the 40 paintings - which I can't do without a court order to garner her email list - or locate any vendors she dealt with. It's a no-win situation for me.

Jan Schmuckal
via faso.com
If I had the money and time to Don Quixote this, I surely would..... and it's wrong, and fraudulent, and all of that - and we can all get really mad about it - but the reality is that it's an exercise in futility. No, more damage can be done by exposing what she is and does, because a lawsuit, due to the nationwide nature of this and the limited number of buyers who can be located without her email list, isn't enough to get anything started.

Brian Sherwin
via faso.com
Jan -- did you send me a message on Facebook? Reach out to me and I'll see what I can do. By the way, just because you sold painting to her does not mean that you sold rights to the copyright as well -- unless that was clearly stated in the contract... if there was one.

If the works were registered prior to what she has done you should be able to find a law firm interested in taking it on. That said, even if the works were not registered at that time you can likely find a volunteer art law organization that will consider it. Especially if this artist happens to be a cash cow.

H Margret -- My point with the article is that it does not matter if Art4Love made profit or not.... it was a response to some of the uninformed comments people are leaving about the situation on blogs and forums. In other words, people are saying that if no prints were sold there is no case -- they are wrong.

Brian Sherwin
via faso.com
Jan -- The fact remains that if she is selling your work under her name she is harming the commercial interest that you have in your work. She is a direct threat to your market as an artist. I mean, technically, if this issue became a case and you won you would likely have control over your work again -- and could, if desired, reclaim it from those who purchased it... or at least make sure that if the collectors exhibit or sell the work that it is exhibited or sold with proper credit going to you... not the artist you speak of.

Jan Schmuckal
via faso.com
Yes, Brian, I did - actually I sent several. They should show up in your messages - I see them in mine.

Jan Schmuckal
via faso.com
Maybe it's me - I send messages to folks regularly and sometimes I swear it takes them weeks to see the message or do you have to be "friends" to send/receive messages?

Phil Kendall
via faso.com
This link takes you to the official UK Copyright Designs and Patents legislation...
http://www.legislation.gov.uk/ukpga/1988/48/contents

For the USA

http://www.copyright.gov/title17/

Janet Steinman, Esq.
via faso.com
Some truly appalling stuff has happened to some of you. I want to make four points. First, in both the US, UK and many other countries, WHEN the work was created is critical. Copyright laws change all the time (which used to be the fault of Disney but now may have legitimate reasons in order to comply with international copyright treaties) but when the work was creaated determines which version of the law applies. Second, copyright ownership can be changed by contract, including licenses, or by will. Third, many artists have set forth situatiuons here where they might need a lawyer. This is an area I practice in and anyone is welcome to contact me at info@janetsteinmanesq.com. If anyone is uncomfortable with my mentioning my own services, please note that I make very sure that what I post is not illegal solicitation, and if you like, for any reason, I will be happy to refer you to another lawyer anyway. I make no money on a referral to another lawyer. I intend to contact faso to see if they have any problem with my stating my services in here. Fourth, it is relatively easy to find legal information but if you are having trouble finding what you want on line, you could (1)contact your local library; (2)contact the copyright office at copyright.gov, the trademark office at uspto.gov and the Library of Congress at loc.gov. LOC has a truly impressive amount of information; (3) try to contact your local law school but please note they almost always only want to talk to members of the bar; (4) try to contact your local bar association but again they usually only want to assist lawyers. Please ask ifbwhat you receive is both current and applicable to the time frame you need although that is frequently a question that can only be answered by a lawyer. Keep in mind that what you will receive is information only and you should not rely on it take any action against anyone. Under the laws of the State of New York, this statement is attorney advertising and is not legal advice.


Esther J. Williams
via faso.com
Janet, I truly appreciate your advice and information provided here. I wrote down your email address in case of any need to contact you in the future. Thanks!

Jann
via faso.com
Just an FYI, in several of the articles lately the use of the word "sell" has been used in place of the word "sale". "You 'sell' an artwork, "an artwork has been for 'sale'. The most recent article excerpt,"...changed the name of authorship of the art, re-titled the art and listed the art for sell. Obviously ..."

Just thouhgt you guys might want to know...=)

Brian Sherwin
via faso.com
Jann -- thanks for pointing that out.... old -- and very bad -- habit of mine. :)

Brian Sherwin
via faso.com
Phil -- Thanks for the links... I may have to contact you to learn more about UK copyright -- would be nice to get some perspective on copyright from someone outside of the US.

Jann
via faso.com
no problem, I used to be a copy reader for Voice of America, so I have a tendency to correct word misuse and grammar, bad habit of mime...=)










 

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