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JUNE 2016

Copyrights and All That Jazz

Copyright is the legal right given to a writer, composer, artist, or a distributor to exclusive production, sale, or distribution of their work. A copyright gives the author of the work limited, exclusive rights to: Reproduce the work; create derivative works based on the original work; distribute copies of the work; perform the work; or, display the work in public.

The period of protection for copyrighted works created on or after January 1, 1978, is the life of the creative person plus 70 years if the work was created by an identified human being. Works created anonymously, under a pseudonym or for a business entity, are protected for the shorter of 120 years from creation or 95 years from first publication. Copyrights that predate January 1, 1978, generally have a period of protection of 95 years, though you should see an art attorney if you need to calculate the precise expiration date of such a work. If a work is no longer protected, then it is in the public domain, and there is no prohibition on copying it.

The Berne Convention, which the U.S. is a signatory to, states that the mere creation of the work places it under copyright protection. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. It would not hurt to place the standard copyright symbol on the work, that is the "C-in-a-circle" (©) with your REAL name, and the date (or year) of creation. It takes almost no time; there is no reason not to put a notice on the work, and it will invalidate the excuse of "Innocent Infringement".

ALWAYS use your real name, or if you must, a registered pen name. If you cannot prove that you are that person, then you cannot claim the copyright on the creation. The Copyright Office does not require you to use your real name, but if you must take legal action, you must be able to prove that you were the one that created the work. The use of a registered "D.B.A." or "pen name" should work, but if you use a "fan name", you might have difficulty.

If you want to go one step further, you can register your work with the U.S. Copyright Office. Basically, you fill out a form, pay a fee, and send in 2 copies of the "best" reproduction of your work (if a book, the hardback version vs. the paperback, etc...) You will then receive notice that it has been registered. The work is now on file in the Library of Congress, and that is the best proof that on a certain date, you created that work.

Registering it also allows you to sue for statutory damages as well as attorney's fees in case of infringement, as opposed to basic "actual losses", which may be difficult to calculate. While registration isn't needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees. (In the USA, registering after an infringement only enables one to receive actual damages and lost profits.)

MAY 2016


What are Works for Hire?

An author usually owns the copyright automatically, unless he, or she was paid by a third party and prepared the work as a "work for hire", in which case, the employer owns the copyright. Authors of a collaborative work own its copyright jointly.

What is Public Domain?

A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include:

1. The term of copyright for the work has expired;
2. The author failed to satisfy statutory formalities to perfect the copyright or
3. The work is a work of the U.S. Government.

Works in the Public Domain are publications, products, and processes that are not protected under patent or copyright. Public domain exists to allow the free exchange of knowledge. If it did not, museums would be allowed to keep images under perpetual copyright, thus denying everyone the opportunity to view, critique, or otherwise examine works. Most 20th century works of art are not yet considered part of the PUBLIC DOMAIN.

A work that is derived or adapted from a public domain work can itself be protected by copyright only to the extent that the derived work contains elements of originality contributed by the author of the derived work. For example, an abstract painting of a famous photograph would be protectible, as is the distinctive rendition of the Star Spangled Banner performedby Jimi Hendrix. The protection available to these works does not remove the underlying work from the public domain, and the author of the derivation has no cause of action against another person who makes a derivation of the same public domain work.

A work that is merely a "slavish copy", or even a restoration of an original public domain work is not subject to copyright protection. In the case of Hearn v. Meyer, 664 F. Supp 832 (S.D.N.Y. 1987), an illustrator attempted unsuccessfully to claim copyright on his restored versions of original Wizard of Oz illustrations. The illustrations were in the public domain, and the court found that the act of rendering them with bolder and more vibrant colors was not an original contribution sufficient to remove the restored works from the public domain.

The copyright laws provide that the Congress shall grant a creative person copyright protection for a limited period, and at the end of that time, the work shall become part of the public domain and may be freely copied. So itís always important when you copy works of others to determine if those works are still protected.

What is the Fair Use Exception?

The fair use doctrine allows for copying without permission for such purposes as criticism, commentary, news reporting, teaching, scholarship, and research. Four main factors for determining whether the Fair Use exception is available:

1. The purpose of the use (whether the copying is intended for commercial, or non-profit).
2. The nature of the original (whether it was published, or unpublished).
3. The amount and importance of the portion used in relation to the original work as a whole.
4. The impact of the use on the original work's commercial value.

Copyrights and public domain and fair use are all terms which exist together for a reason. Copyrights are necessary because they allow artists/writers to profit from their own work. Public Domain is necessary because it allows for the free exchange of ideas. Fair Use is necessary because it allows the public some access to copyrighted work, as long as they do not profit from it. The idea of FAIR USE has guided the use of reproductions of works for years. In most cases, the lack of commercial gain is necessary for a claim of fair use. If you are a non-profit website designed for educational purposes, you could claim FAIR USE of images which are already in the PUBLIC DOMAIN.

APRIL 2016


In some very limited instances, a photograph of a public figure may be used without permission but these circumstances must be analyzed very carefully. If the person is a public figure (a celebrity, a politician and the like) or is a private figure but one who is involved in a matter of public concern (a news story for instance) and in both instances the use of the photograph is directly related to the personís public status, then the courts have said that in those instances, the right of the person to his or her privacy gives way to the publicís right to get the public information. This is a very limited set of circumstances. If you intend to use the photograph in a permissible way without the subjectís consent, you must have a release from the copyright owner of the actual photograph. In a news story for instance, this may be the photographer or it may be the newspaper, news organization or the like. It requires some research. And no matter what the topic, if you intend to use a photograph of a person for commercial purposes, then you absolutely must have a signed license in writing granting you permission.

Celebrity photographs are not in the public domain. However, celebrities enjoy little, if any, rights of privacy, and their rights of publicity are limited to commercial uses. Unauthorized photos and illustrations of celebrities are common in the media, because most media depictions of celebrities are considered expressions of free speech about matters of concern to the general public. Thus the photographers and publishers of such images are immune from liability for violating the celebritiesí rights of privacy and publicity under the First Amendment. The photographers and/or publishers, own copyright in their photos of the celebrities. You need permission from the photographer who took the photo you used as a reference for your painting. Under copyright law, the photographer is the original ďauthorĒ and copyright owner of the photograph. A painting based on the photograph is a copy of that work. Thus, the painting constitutes infringement unless you have the copyright ownerís consent. Moreover, this is true whether or not you make reproductions of the painting, because the painting itself is already an unauthorized copy of the photograph.

With regard to celebrity photos, approximately 30 states provide celebrities with a right of publicity in their name, likeness and reputation. If your use a celebrity's protected rights without permission, you will be guilty of violating the celebrity's right of publicity and, therefore, if your work is sold or exhibited in one of those states, you may be liable for damages. It's worth noting that in many states the right of publicity survives the famous person's death for a protracted period of time.

For these reasons, artists must be doubly careful when using photographs of people as references for their work. You may need multiple permissions, not only from the photographer, under copyright, but also from each person depicted, under the rights of privacy and publicity. Generally, artistsí models have consented to use of their image in the artwork by virtue of being paid for their services as models. However, such implied consent might not extend to commercial goods. Itís always a good policy to get written releases from your models, or anyone whose likeness appears in your work.

MARCH 2016

Let's Talk About "Original" Art
Original implies unique, one-of-a-kind.

Is Your Art Original? (Definitions are a Murky Business)

Look at the similarities between the works of DaVinci and Michelangelo, and Monet and Renoir

Copying has been going on for a l--o--n--g time.

Artwork created from magazine photos or other works in print, including advertising, is not considered original. If work is created from a photo, the photo MUST be that of the artist (or used with the permission of the photographer or the copyright holder).

Under guidelines of most organizations, the creative process of painting and decision making determines how the final work of art is classified. The end result may range from abstract to photo-realistic, but 100 percent of the painting must be created by the artistís hand in order to be defined as ďoriginal.Ē

Most of the masters began by copying. If they did it - you can do it too, but don't carry it too far. Study their techniques, and then go on to express yourself by developing your own subject matter in your own style.

Is it legitimate to copy another person's painting? Of course it is - if your intention is solely to learn from that experience. In fact, it is a good idea. Pick a simple painting which interests you and copy the form and the color as best you can. You will learn a great deal about color, mixing, and brush techniques.

Copy in order to learn.

While the law is clear that no one can make a substantial copy of anotherís protected (copyrighted) work, the application of this simple rule is difficult. If you wish to use the creative works of others for mere inspiration, you certainly may do so, but the use can go no further than that. There are statements to the effect that changing a work by 10 percent, 20 percent or some other specified percentage will avoid violation of the copyright statute. This is untrue since there are no cases or statutes providing any percentage that can be considered safe. The law uses the substantial similarity test.

As to the meaning of this test, one of the leading copyright jurists in the United States, Judge Learned Hand, stated that, in his opinion, if one compares the protected original work to the allegedly infringing work and the comparison discloses that the works are substantially similar, then there is an infringement. This is a very subjective test, and those artists who copy the works of others run a great risk that a judge could conclude that the line between inspiration and copying has been crossed. Therefore, take great care when using the works of others for inspiration.

Next month, we'll delve into the world of copyrights.


Criteria for Judging Artwork

It seems appropriate as we focus on creating splendid artwork to enter in the Spring Art Show to focus on some actual criteria for judging said art. Take a deep breath and ponder the following, then take another hard look at your artwork. Does it meet the following criteria:

Does the work exhibit creativity; is it unique? Does it appear to be an original interpretation of a subject?

Does the work demonstrate the Artistís technique / expertise?

Does the work demonstrate effective use of forms or abstract techniques; is the composition compelling? Does the composition lead you through the work?

Does the work exhibit sureness in use of line, color, space, form, texture? Is there INTENT in each brushstroke?

Does the work demonstrate a balance of elements and repetition? Does it display a visual rhythm?

Does the work demonstrate an appropriate use of medium and textures?

Does the work contain appropriate perspective and use of masses and forms?

Does the work have a professional appearance, complementary framing and/or mounting?

Is the work appropriate for the Artistís maturity and abilities? Does it appear the Artist has fulfilled her/his intent (does the work appear complete)?

Does the work appeal to you strongly?

If so, enter that work into competition - it's a winner!


Do you see a diagonal
motion in the artwork?
Does a subtle "S"
or "Z" pattern lead
through the paintings?

2016 - A Brand Spanking New Year

And so we begin. Back at the easel, ready to claim our place in art history. THIS is the year! Claim it as yours!

Most paintings fail when the artist does not pay attention to basics.

I'm an impressionistic artist and I find that too much reality in a painting is always a disappointment. Convey EMOTION in your work; don't try to recreate reality unless you are a realist painter.

Diagonal motion in the painting provides interest. Create unobtrusive "S" or "Z" formations within your composition. If you study paintings that appeal to you most, you'll often spot those "S" or "Z" patterns.

Odd numbers of clustered objects are more interesting, i.e., 1 or 3 boats, not 2.

Take the time to mix the right colors. Often you might spend more time mixing colors than applying them.

Shading and shadows anchor objects and give them three-dimensional depth. Don't let your objects float or appear flat.

Put down your brush and step away from the palette OFTEN. It's only when you step back that you can really see the work.

When you know and understand the basics, then you can choose to break the rules. And rule-breaking can work, not always, but there is a place for it!


Now you can start to take your rightful place in art history. Who's to say that's not possible?

Year-End Musings of an Artist

I review 2015. Have I grown as an artist? Have I painted enough? I have this dreadful sense that time is drawing nigh and I MUST paint, MUST commit myself to this great devour of time. And yet I spend most waking hours immersed in the absurdities of everyday life. The easel sits patiently, a scorned lover, while I run errands. Yet I ache to create. It's almost a hunger, recently sated in New York while meandering through 30 impressionist galleries in the Metropolitan Museum of Art. My easel is still waiting patiently, an unfinished work calling out to my innermost self. You want to be an artist, you say?

Lifelong Learning: Not a Vocation, but a Way of Life

Not long after the desire to create meaningful art and the hard work required to achieve it comes the realization that being an artist is not a vocation, but a way of life.

Do you want to become a more accomplished artist, but don't know exactly how to go about it? Well, it's like any other skill - it takes work, hard work, and dedication, i.e., time. But if you don't start now, where will you be a year from now...still wanting to become a better artist?

Learn everything you can about how to paint (or draw, or bead, or photograph) the way you WANT to. Find artists whose works you admire, study the artists' works, and learn from them.

Hang out with other artists. Join a group or form a group. You're going to learn even if the style and substance of other works are completely different from your own.

Commit yourself and get on with it!

All works original and © Copyright of the Artist, Cheryl Hardin.
Website © Copyright 2006-2017 Cheryl Hardin. All Rights Reserved. USA.