I accidentally stumbled upon on a workshop ad online advertising a three hour workshop to learn how to paint a vintage rooster painting. The ad gives credit to the original artist, Kandice Keith. Which is ME!!! I don’t know how I feel that someone is doing a paint night using my original as an example, especially since she didn’t ask, and I don’t even know what piece she is using (plus I guarantee it took me longer than three hours to paint it). I’m trying to just tell myself it’s a compliment, at least she gave me credit in the ad, and let it go. Does anyone have any experience with this?
This is not a “compliment”; using your art for profit without your permission is copyright infringement. I suspect you do know how you feel about someone teaching amateurs to make cheesy copies of your art while drinking wine (as you should), and it’s not like letting it go. I recommend you contact Ms. Wright (yes, I found it easily), tell her this, and ask that she either license and pay you for this usage in multiple locations or immediately stop using your work. I would also contact her sponsor/website, Opus Art Supplies, with the same information and demand. Next step would be a cease and desist letter on legal letterhead. If all else fails, you could sue them both, especially if she has done this before. (Though I will amend this to say that probably is economically unfeasible and at best would be unpleasant.) The fact that they’re in Canada may make it difficult, though copyright laws are international.
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She’s using it for teaching; copyright law says that’s included under “fair use”.
The law also looks to see if what she’s doing negatively affects the market for your work. It doesn’t… she’s essentially providing free advertising for you, which is a good thing.
Copyright infringement is about someone profiting from illegal use of your work; and fair use does not cover any and all usage in every broad definition of “teaching.” I absolutely disagree that using and copying a painting without permission in for-profit, “workshops” or paint-and-sip parties such as these legally constitutes fair use–and others including attorneys concur:
An actual case in which artists filed suit for illegal use of art at paint parties
http://askharriete.typepad.com/ask_harriete/2014/02/cultivating-a-culture-of-copycats-.html
[And if you really want to test “fair use” in paint parties, try it with anything Disney]
(https://www.reddit.com/r/legaladvice/comments/3jr8vd/copyright_infringement_kids_paintings/)
Art used in this manner should be licensed. If you don’t like this uncompensated usage of your work, I doubt they would choose to test the legality of it if confronted and asked to stop. If this has been going on for some time, I would check into the decision in the above posted law suit. If you have not registered your artwork with the U.S. copyright office, you can’t sue for statutory damages including attorney’s fees, but you technically could be entitled to the profit she has made from its usage. (Though this undoubtedly would not offset the cost of suing.)
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Eli Halpin wrote a blog about using artwork without permission. He has a lot of experience in the area. http://elihalpin.com/blogs/eli-halpin-blog/do-not-copy-art-without-permission
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Kandice, I’m wondering if you sold that painting or still own it. Does it make a difference if the art school owner bought the painting? If someone paid what I asked for a painting I would consider it to be that person’s property from that point on. If I paid for a painting I could lend it to the owner of a painting class.
Connie,
How the use affects the potential market for the work is, in fact, one of the four factor judges use to determine if there’s a violation. And educational use falls under “transformative”, which is protected under fair use.
Andrea,
That guy is misinformed – despite his claims to the contrary – and seems to be unaware of how artists have trained for centuries; that is, by copying (to learn) the work of other artists. It’s standard in art school. You go to a museum, you copy.
She is actually teaching two paintings and has not purchased anything from me. She does not give credit to me on her website, only on an ad online at a local art store (how I learned she was teaching them)
Was the rooster painting sold by you to someone at some point in time? If I buy a painting I can give it to someone else who can give it to someone else who can let people paint from it. I’ve seen artists on this site specify that the artist retains the exclusive right to resell images made from the original painting notwithstanding it has been sold to somebody else. I think we all imagine our paintings to be kept by one person and be hanging on a wall treated respectfully but somebody could draw on the painting with an indelible marker then throw it out in the garbage. The artist loses control of the original painting. Obviously I’m not a lawyer and I’m not sure how one keeps control of a painting that has been sold.
So fire off an e-mail, say you’re flattered, but you’d like credit on the site in addition to the credit on the ad. Again, it’s free advertising, really, which is great for you.
Or, as has been previously suggested, with no real legal standing to speak of, you can enter into hostile lawsuit territory, and walk away defeated, saddled with an attorney’s fee, and go on to live life in the dark, self-defeating realm called “Paranoia”…
Do what feels right for you.
I am not suggesting she immediately file a lawsuit, only that her grounds for doing so likely would persuade the infringers to stop using the work illegally, give her additional credit or advertising, or whatever she requests–maybe even pay her to license the work. Standing up for and educating businesses about your rights is not just “paranoia,” it benefits all artists. Not only is the instructor using the art commercially without permission, she is teaching others it is OK to directly copy anything found online.
If a case does not have merit, no reputable attorney will take it. But clearly such cases do have merit, as evidenced by the one filed in Indiana (though in that instance the art was registered). Don’t take legal advice from artists–if your area has a Lawyers for the Arts organization, you can join for a nominal fee, and they can put you in touch with an attorney who will advise you more economically–first half hour is free.
A serious student copying a historic museum work is not remotely the same as someone appropriating a working artist’s painting for repeated use in paint parties. The posted article defines “tranformative” as material from the original work being transformed by adding new expression or meaning; or having value added by creating new information, new aesthetics, new insights, and understandings. Nothing about educational use being transformative.
Also, purchase of an original artwork does not confer transfer of copyright. Artists retain all copyrights unless transferred in writing. That is the information some people include with their sales.
Again, from an attorney who filed a lawsuit in a similar matter: "The problems giving rise to the lawsuit occurred when copies of Ms. Duncanson’s and Ms. Wiseman’s artwork were used as class subjects — repeatedly — without their permission, the lawsuit alleges. The above images are used in the lawsuit as an example to illustrate the allegations, which include that Ms. Duncanson’s original painting Blue Depth differs slightly but is substantially similar to the copy at right, which, according to Plaintiffs…"
Duncanson v. Wine and Canvas
I just asked Ms. Conlin if there had been a decision in her case. In her opinion, this does not meet the fair use test, especially if it’s for commercial purposes. She said the dispute is ongoing. The Defendants fought personal jurisdiction in Florida so there is a new lawsuit in Indiana.
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There is NO way she should be able to use your rooster! If she wants to do her own rooster, and use it for her teaching then have at it! Again, I find I agree with @Connie_McLennan! Yeah, try that with anything Disney, ha! Well said.
I will read the blog, thanks @purplehaze
@dkuhn_art you go to a museum, you can copy…but you don’t hold your own class there and charge your own admission fees while you lead a class in how to copy the work in the museum that does not belong to you.
So if these arguments held true, that it is ok for her to do this by taking the rooster for her class-you could apply that…:
So anything I find of yours or on your web site-any of your materials, I could use in my own classes or web site to teach my own students with? I could put it on Youtube and advertise my classes. Why couldn’t I then make a copy of it then and sell greeting cards with the image?
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Yeah, you do. You pay for art achool, and one of the things your professor does, and gets paid for – in the more traditional art schools at least – is haul you down to the museum to do copy drawings.
If you have a problem with that, then you have a problem with the way art academies have operated for centuries. I can’t imagine that you really do, though, because you’ve always struck me as a sensible person.
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University or Academy classes are not marketed and sold for the sole purpose of reproducing specific contemporary artworks that are currently copyrighted and not in the public domain–while drinking wine and purchasing art supplies from a sponsoring vendor. What do you think is the basis for the Indiana law suit currently in progress?
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It’s not being used used illegally. We’ve been over this. Educational use is considered “transformative”, transformative is considered fair use. I posted a link, I hoped it would be read… I got some coffee and a small piece of cake, did some painting, had a little chicken for an early supper – rotisserie seasoned and delicious --come back here to find every reasonable point ignored…why not? What the hell do those U.S. judges know anyhow? Besides the law…
God help me, I must have severe masochistic tendencies to keep participating in this conversation. I’m gonna have to find a very good therapist to get to the bottom of that dark well…
You keep bringing up the wine… what’s wrong with wine? Everyone likes wine. And a little red is good for the heart, ya know…
You know what I like? A nice merlot. But I don’t drink while painting. I save it exclusivley for uncomfortable social situations, like this one.
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Again, why do you imagine there is a law suit over this exact issue? Some attorney just wasting everyone’s time and money? The bar association can fine her for that. I am not at all uncomfortable.
PS–I read your link. Fair use is narrowly defined and subject to interpretation on a case by case basis. A smart business person wouldn’t want to risk it.
Look-- Kandice asked about some unauthorized usage of her art and name that feels uncomfortable and wrong to her. That’s because it is wrong. She may not have the clout to do much about it legally but she certainly has enough grounds + the right to object and ask for–and most likely get–some remedy.
Perfect timing for this topic. I just received a second email that my artwork was being used for one of these paint parties without permission. Honestly, if someone would just ask then yes, I would be flattered and would say go ahead just give me credit. Free advertising, blah blah blah. I have attending one of these classes, it was fun and nothing serious. In both cases my painting was shown on their advertisement with my signature cropped off and no mention of my name. At the very least do your own version of the painting and post that.
You can’t compare it to what art students do at a museum. I did that too way back when. Not the same. They don’t ask because they think the artist will never know. The instructor should know better even if they have a limited knowledge of copyright infringement. I have worked really hard on developing my style and want to protect it. If I wanted people to copy my art I would teach these classes myself.
Regarding what the law is after someone buys a painting form you, are they allowed to do this.? My understanding is that regardless of who buys it and what they decide to do with the physical piece of art, is that the artist still has the copyright. They can hand it down for generations but the artist still has the copyright. Bottom line: it’s annoying! Rant over.
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That is correct–the artist retains any copyright not transferred in writing.
I understand, but just so you know, style can’t be copyrighted… Link