The argument would be that unless the instructor can demonstrate that she runs a class with some sort of academic accreditation, this is commercial and entertainment usage not educational. She’s promoting the art store and her own party-type product, not providing serious education. I guess determining that would be a legal matter–but again, I doubt she and her sponsor would want to risk it.
U of Minnisota’s Interactive tool for determining probable fair use
“…no single factor is decisive of fair use…” (so that would include “teaching”)
“Non-profit purposes favor fair use (especially when coupled with one of the other favored purposes.) Commercial or for-profit purposes weigh against fair use…”
“It is less likely to be fair to use [if] elements [are] of an unpublished work…”
"A use is usually more in favor of fair use if it uses a smaller amount of the source work, and usually more likely to weigh against fair use if it uses a larger amount…"
Etc.
“To qualify for a Classroom Use exemption, you must: be in a classroom (“or similar place devoted to instruction”). Be there in person, engaged in face-to-face teaching activities. Be at a nonprofit educational institution.”
(Emphasis theirs)
I would say anything loosely defined as “teaching”–for profit, using the entire piece, and yes, with wine–is far from a slam dunk for copyright exemption. I can not find any rulings on this exact type of usage/infringement, so it may be yet to be determined. If so, until someone gets a ruling, it’s a game of bluff. And ethics, if that matters to anyone.
True, I guess I used the wrong word. It’s hard to put into words but I really believe artists and our artwork such as myself (part timers trying to squeak out a few extra bucks) don’t receive the respect and consideration as other professions. Like I said these classes are just for fun. I certainly don’t expect that one of the patrons is going to start a new career or sell one of these paintings from the class but the instructor is sure making money from it. And for that reason she should at the very least ask permission to use the image.
I’ve had other artists ask me if they could copy a few of my paintings to try to learn how I do my brushwork. I always say yes of course. I know I didn’t invent this style. One went on to sell the ‘replicas’ on her website. but hey she did ask. Live and learn.
One of the galleries that hosted paint parties that wanted to use my image had huge parties- 40 people or more. at $40 a pop that’s a fair amount of money. I asked them to not use my image. why? they didn’t ask. Maybe I should ask myself why am I not doing these parties…
Anyway, I am spending precious time typing when I could be painting…before work. lol …
Have a great day 
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Connie,
Ok, let’s apply this logic to the other arts.
The piano teacher down the road uses pop songs to help teach his students how to play the instrument. You want to forget what the law allows and have him contact Elton John for permission every time he shows a kid the melody to Tiny Dancer?
Before an acting coach has a student learn a monologue from Our Town, she has to get permission from the estate of Thornton Wilder?
That’s not how things work. That’s not how they’re even required to work.
Andrea L.,
I understand where you’re coming from, but she could switch out your painting for another, and it changes nothing. The money she makes doesn’t come from your painting, it comes from the instruction. As I said before, just be happy for the free advertising and ignore the people encouraging you to get into a fight.
And that was an interesting point about respect. I think it points to the fact that a lot of these issues have less to do with legal issues and more to do with emotion, which would explain why illogical positions are defended so vigorously.
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I found a picture of my art lifted from Facebook reproduced in a local activities Guide used to promote a local historical site, used without my permission and without credit to me. I found out where the Guide was produced and submitted and invoice for a one time use of the image. I said it was not right to steal from artists. And if I didn’t get paid they would hear from my attorney. They paid me! With my check was a letter saying it was not their policy to use copyrighted artwork without permission and they would take it out of their database.
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Andrea J.,
You bring up a good point, which is that Kandice could’ve rightfully complained simply about her painting being used in the advertisement, without getting paid for it, like in your case. Although, since she got her name mentioned – unlike in your case – I would still be of the opinion for her to just roll with it.
Anyhow, glad it worked out for you
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Again, poor analogies. 1. Both are one on one, with children and 2. Neither are widely promoted and sold. The piano teacher pays for the sheet music. Schools pay royalties to purchase scripts and publicly perform Our Town. (Cheaper royalties are the main reason they only do old shows.)
We shall see how the Indiana case unfolds. Attorneys don’t file suit based on emotion. Because Disney characters are so popular, I wonder why there isn’t a big independent franchise that “teaches” kids how to draw them? Or why these party/workshops don’t choose the works of better known contemporary artists to use in their “teaching.”
The analogies were fine, you know that.
Look, I really don’t understand why you’re being so hostile. But I think it’s best to give you some time to cool off…
It’s this angry worldview of yours that I was trying to steer Kandice away from. It would be nice if she could find a way to work with this woman, instead of succumbing to the idea that the world is out to get her.
As to why I start some auctions at a dollar, well now, where did I get that crazy idea? From Carol Marine.
I took an online course from an artist (who is a DPW member) and in the course we are copying her art in the lessons. When signing up we AGREE to not sell, show or teach using her art as it is HER intellectual property.
Some artists include a Certificate of Authenticity (COA) with their art to state that they retain copyright and hope that it stays with the art if it is passed on. I mention it in my notes section.
I would probably write this person a letter explain copyright laws to her briefly, maybe include a bill for use of your art. You can set your terms and make $20! (or whatever).
Again, I am not advising or recommending that she sue, only that she not do nothing. I think it would be great if they can reach an amicable solution. My point all along, which you immediately disputed and labeled “paranoid,” is that she has a legal basis for requesting a remedy. On some level you must think so, too, or why should she bother to send the email you suggested earlier?
I suggested an e-mail that would get her slightly more obvious credit than she’s now getting, that’s all.
I still maintain she has no basis…The woman isn’t claiming she painted the rooster, or selling copies of Kandice’s paintings; she’s selling her own instruction. Her students are paying for the lessons, not for anything bootlegged from Kandice’s original work.
But I can only go through this so many times. You’re emotionally invested in this point of view for reasons I don’t understand… ¯_(ツ)_/¯ So be it…
Years of reading and hearing attorneys hammer on illustrators to protect their copyrights. And a lot of time drafting detailed rights and usage contracts.
Another example of how commercial illustration differs from the world of fine art, I guess… whatever… You’ve worn me out…
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Wow, good for you! I would not have thought of that. They are still wrong. I received a flyer in the mail for a pretty big magazine, it had one of my favorite artist’s work on the front of this brochure type thing. I wrote to him saying ooh, nice one! (as he is a ‘facebook’ friend–oh heck so I’m a groupie!), and he knew nothing about it! He was not featured in the magazine and never had been. I scanned it and sent to him, don’t know what he ended up doing…
Yes, you are right. My grandfather’s first oil painting lesson was with an Italian master artist who visited Birmingham, Alabama, and had my grandfather copy Raphael’s Madonna of the Chair. It is a wonderful painting that my family has treasured for many years. He went on to copy many others, and finally created his own paintings. Copying is a time-honored practice and I would be loathe to see any lawsuits that kept people from continuing to use this method of learning. We live in an entirely too litigious society as it is! I suggest the artist write a letter asking the instructor to place the artist’s name on any and all literature advertising the class. The artist is not yet well known and could actually use this in her advertising. Class participants should be made aware that they cannot show or sell their paintings as originals.
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Copyright laws do not distinguish between fine art and commercial art. All visual art is equally protected for the artist’s lifetime plus 70 years from the date of its creation, and every use that can be broadly defined as educational does not automatically confer fair use. Copying historic paintings for personal education and using a copyrighted contemporary artist’s work in a party-type workshop venture are entirely different. Again, reference the legal filing.
Yes, kudos to Andrea! I once had a painting lifted, used online, and (I later learned) published in a brochure without credit for a controversial fundraising effort–and did not have the guts to send an invoice. I regret that–though it probably would have been a fight, because before taking it down, the NYC infringer actually argued that she had done nothing wrong and that I should be “flattered.” 
I am not hostile or needing to cool off, just baffled as to why you refuse to read and explain the legal filing about a similar issue. Imagine everything I’ve written read in a calm, rational tone. With smilies 
Connie,
The woman said she would teach people to paint like Kandice. What she’s selling is instruction, and the instruction concerns style, which cannot be copyrighted.
Every rooster painting, being painted by a beginner, will inevitably bear little resemblance to the original (thus transformative), and none will be a threat to Kandice’s market (since none will be of the same quality).
The only legitimate complaint has to do with this woman using the original image in the advertisement without permission. That was wrong.
All customary legal concerns have been addressed.
It’s all kosher.
The end.
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Oh I see. My apologies!
For the record though David, apart from the whole suing topic, I agree that the woman should not have taken @kandice’s painting to use for her own paid class-and without permission to boot. She should have painted her own painting to use as a demo if she felt she was qualified to be a professional teacher on the subject. (Obviously pro, as she was to be paid for her teaching.)
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This is an open forum. Collectors are members also. Gerald’s work is amazing.
Good point. Which is why personal insults, falsely ascribing negative opinions, and assumptions about what someone “must” think are not cool. Although this all probably has gone much too far already, I will take issue with one more item (help, I’m debating and I can’t shut up.) [quote=“dkuhn_art, post:53, topic:1971”]
Every rooster painting, being painted by a beginner, will inevitably bear little resemblance to the original (thus transformative), and none will be a threat to Kandice’s market (since none will be of the same quality).
[/quote] You can’t assume that “inevitability.” Even as a beginner, I could have produced a recognizable copy. And there are multiple types of “usage.” The use of Kandice’s name and art to promote the workshop are one. The workshop itself conceivably could impinge on her market for giving her own workshops. Again, not an attorney, not advocating suing, just trying to explain the basis. The case used as an example may take years to resolve–not a happy prospect for either party.
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