Good Business Practices: Protecting Your Artwork On The Internet

With today’s technology, artists are no longer constrained to showing their work in galleries. Exhibiting your art on the Internet literally opens up a whole world of potential clients. But at what risk? The Rickie Report welcomes Attorney Matthew Harrison, as he writes this Guest Column about protecting your artwork on the Internet.  Matthew Harrison is a leading expert on the legal issues regarding photography and other visual arts. His specialties include copyright and trademark matters, release forms, and the potential legal pitfalls of using the Internet for self promotion. While he maintains a practice in Massachusetts, all of the topics written about either apply nationally or are specifically written for the Florida artist.  

 

 

THE INTERNET AS A DOUBLE EDGED SWORD:

Protect yourself while getting the most out of the promotional opportunities

By Matthew B. Harrison, esq.

 

How many of you display your work on your own website? Facebook? Tumblr? Pinterest? Twitter? Instagram?

 

 

 

The Internet can be an amazingly inexpensive way for you, as a artist, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and post your work everywhere, I would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.

 

 

 

Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your artwork somewhere without your permission? It may not happen for all artists… but it happens to visual artists more than any of us would like to admit. You need to be aware of this phenomenon so that you can adequately protect yourself.

 

 

As a point of reference, this article is about non-commercial use of the image by an unauthorized party as opposed to a commercial use. Unauthorized commercial use is an entirely different animal and may be outlined in future articles.

Here’s one example… shifting point of view to the viewer.

 

Pretend for a minute that you are not the intelligent and informed reader of The Rickie Report that you are, but instead are “my cousin Vinny.” While he may think he is of sound legal mind, he is not a lawyer. He’s just a normal guy who doesn’t really know much about anything – and even less about technology. He may know what a computer is – but his main purpose for using it is the access to free adult material.

 

 

So while I can write about copyright protection until the cows come home, and declare by edict that materials on the Internet cannot be used without permission – do you think that “my cousin Vinny” is going to listen to what I am talking about – let alone follow by my words? Not a chance – even if I had a scantily clad model holding up a giant sign.

 

 

But Vinny! You are committing a copyright violation by taking that image off someone else’s website and posting it on your page – or sending it out via email to your buddies – or even using it on your desktop as a background image. His actual response: (after the shut up kid… you bother me) “Hey… I got it for free on the Internet… If they didn’t want me to have it, why would they put it out there?”

 

What Vinny is trying to get at is a fair use argument. Does his justification have merit? Perhaps. That’s a simplistic look. It gets complicated. What about the budding photographer who shoots a wedding inexpensively thinking that some of the cost will be made up in print sales, and the bride and groom don’t order prints and take the web sized proof images that they feel they paid for and put them all over Facebook.

 

Is it appropriate to put online / social network usage as a separate line item in an invoice?

What is fair use?

 

 

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

 

 

So what is Fair Use? The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether or not a specific use qualifies as a fair use. For example, one important factor is whether the potentially infringing use will deprive the copyright owner of income. It seems straight forward, but unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

 

 

The Fair Use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.”

 

 

These factors are as follows:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

 

 

So getting back to Vinny – if a work is freely available on the internet – making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed… and that is not good for the photographer or artist who gets ripped off from someone like Vinny. It means that as long as you were not selling the particular image copied (in the form that was copied) whoever did the copying has a pretty strong argument for a fair use defense.

 

 

Getting back to the Facebook example – if a person’s usage is only on their Facebook profile, and it’s the same web sized image that had been presented to them as a proof, it would be hard to argue that the intent was copyright protection. So how do you protect yourself from falling into the trap of a fair use argument?

 

 

While I hate to say this because as an artist myself the following advice pains me…

An artist NEEDS to identify their work and claim the value of it on their website. One way to identify the owner of the work is to watermark the image; and if you really want to protect yourself at the cost of devaluing the overall aesthetic of the image – the watermark should be towards the center of the image so that it cannot be cropped off. By doing this – it is painfully obvious that the work belongs to someone.

 

By offering licensing to use the image, or making the image for sale in the form of a print on your website, you are evidencing actual financial value to the image on the site – and to any reproduction made by the image. This will, in the least, provide you with an argument against a proposed fair use defense that an infringer may have.

 

 

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with the Harrison Legal Group based in Springfield, Massachusetts.

He can be reached by phone at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

You can also see some of his adventures and explorations with fine art photography at filmandvinyl.com   

He can be reached via the web @photosandthelaw.com

 

 

For coverage of your events, to place an advertisement, or speak to Rickie about appearing in The Rickie Report, contact:

Rickie Leiter, Publisher

The Rickie Report

P.O.Box 33423

Palm Beach Gardens, FL 33420

Rickie@therickiereport.com

561-537-0291

Caren Hackman Talks About Sharing Your Portfolio On-Line

The Rickie Report receives numerous emails and phone calls from readers asking a variety of questions. We’ve invited Caren Hackman, author of “Graphic Design Exposed”, to be a guest columnist to answer some of them.  Today’s topic is on-line resources to share your portfolio.  

 

Sharing Your Portfolio On-Line

 

Question:  I am not represented by a gallery or agent. How can I increase the number of people looking at my portfolio?   Mary N., West Palm Beach

 

Caren Hackman says, “There are so many options for you to show your work that I can only scratch the surface in this column. I hope that the list of resources mentioned here will serve as a jumping off point for you to find the best possible way to display your portfolio and extend exposure for your artwork.”

 

“A well-rounded multi-media approach will help your work get seen. Be prepared for publicity opportunities by using a combination of print and web media. Your print arsenal should include a business card, printed samples of work, a CV and/or personal statement. The web arsenal should include samples of work, CV, personal statement, email blast capability and regular interaction with at least one social media outlet.”

 

Caren will address some web related outlets today and discuss print in the near future.

 

“Having a website that showcases your work is essential. Content management solutions such as wordpress offer the advantage of having a customized website that can be easily updated. For artists who find the task of building their own site intimidating there are many free online portfolio sites.  Check out this list taken from design instruct.com (http://designinstruct.com/roundups/free-online-portfolio/).

Being able to send out mass emails, be they media releases or invitations to openings, should always be done using an email client. Never, never, never send an email to multiple recipients from your personal email account. Protect the privacy of intended email recipients and protect yourself from being categorized as a SPAM sender by using bulk email programs. Many of these programs are free or low cost and easy-to-use.  A few that you might like to research are mailchimp.comconstantcontact.comstreamsend.com and madmimi.com.”

 

“Blogging and social media sites such as Facebook, Linkedin, Twitter, and Pinterest are avenues for artists to help collectors keep current on their work.  If working all social media sites seems a little daunting try concentrating on developing a following on just one or two of the sites. Consider using a feed program to automatically send updates from a blog to your favorite social media outlets.”

 Please send your questions, no more than 250 words to:

rickie @therickiereport.com.

 

 

Caren Hackman is a graphic designer and fine artist living in Palm Beach Gardens, FL. and author of  a book about Graphic Design and Good Business practice. http://www.carenhackman.com/book/Graphic Design Exposed  Be sure to check out Caren’s wonderful artwork –  Caren is a talented artist in her own right!  She is a founding member of the Artists of Palm Beach County.

For coverage of your events, to place an advertisement, or speak to Rickie about appearing in The Rickie Report, contact The Rickie Report at:

Rickie Leiter, Publisher

The Rickie Report

P.O.Box 33423

Palm Beach Gardens, FL 33420

To Market, To Market…….What Are You Waiting For?

Rickie’s “Two Foot Rule”

Throughout my life, no matter what my career, profession, involvement in volunteering for small  and large organizations, or other miscellaneous activities, I found that Rickie’s “Two Foot Rule” often came into play and now is the time to share that secret with you.

“Whenever anyone comes within 2 feet of you – tell them what you are involved in!”

Are you reading this, wondering where to begin? The Rickie Report recommends that you start by making a list of all of the people you come in contact with: family, friends, neighbors, those people you “like” on Facebook, Twitter or other social media.  Do not forget to include your hairdresser, dentist (and the office staff), doctors (and their office staff), dry cleaner and favorite barrista. We are serious – make a list!  Be sure to include your insurance agent (health, auto, home) as well as your auto mechanic.

Tell everyone you know what you are creating.  You don’t have to be pushy.  Your enthusiasm, excitement, and even your confusion of where to go next with your project, will offer people an insight into your creativity.  Connecting with someone in a social situation can be as simple as saying, “Look at my new business cards!  I’m so excited about sharing them!”     If you do not have business cards – go to The Rickie Report Archives October 21, 2011.  Read. Order. Distribute. Re-order. Continue to Distribute.

By sharing  your ideas, their curiosity will be peaked. They will want to hear more about your techniques,  your product, your successes, and your learning experiences.  We don’t believe in failures – every failure is a learning experience.

The Rickie Report recently presented a marketing program to the South East Florida Polymer Clay Guild to share and elicit ideas about marketing their creative wares.  Many suggestions came from our discussion.  Make a short video or power point presentation showing how you go through the steps of developing your art.  Show photos of the various steps from beginning to end.  Bring along some of your materials.  Present a demonstration of your creative process.

Will people buy your product?  Maybe.  But they will tell others about you.  Creating a buzz factor about your work and your journey is what leads other people to join with you.

The Rickie Report empathises with the artists and artisans who apply to numerous juried shows throught the year and may feel challenged not only to create but to market themselves as well. 

Is it time for you to consider paying someone to handle your marketing?  Would hiring a high school student a few hours a month help keep your jpgs in order?   We are amazed at how often a Rickie Report staff member will attend a show and be surprised to see one of our faithful readers in a booth selling their beautiful art pieces!  When you are accepted into a show, be sure to send out press releases to the local media and to your customer list! 

Now, go forth and talk and share!

For coverage of your events, to place an advertisement or speak to Rickie about appearing in The Rickie Report, contact The Rickie Report at:

Rickie Leiter, Publisher

The Rickie Report

P.O.Box 33423

Palm Beach Gardens, FL 33420

Rickie@therickiereport.com

561-537-0291