and Your Artistic Career
Artists often get upset if they find out their art has been used or reproduced without their permission. Whether the art appears in print, on TV, in video, film, on the Internet or in other artists' works of art, instances of using images of art without asking first are more prevalent than ever. While it's true that using images of an artist's art in unauthorized ways is usually an infringement on the artist's copyright, the question then becomes whether or not to do anything about it-- legal or otherwise-- and if so, what? Thoughts and opinions on the matter differ widely. Here are some of mine...
Treating every such incident as an actionable offense by either threatening or taking legal action is not necessarily the best way to go. Even so, many artists go right ahead and do it anyway. Now if an infringer is using your art without permission to make money for themselves, some sort of legal intervention is often necessary. But art is used in so many ways these days that sometimes other approaches to resolving the situation may be better.
Sadly, fallout from so many artists going public on infringement matters, making claims, or attempting to win judgments has negatively impacted the art and careers of all kinds of artists in unanticipated ways. For example, you can sometimes see the results of this in commercial stills or videos, where works of art or various other types of identifiable imagery are intentionally blurred out or otherwise obscured from view. Artists interested in having their work appear in any kind of media anywhere have fewer and fewer opportunities to do so, whether they care about getting paid for the exposure or not. Why? Due to fears of possible litigation, many companies are no longer willing to take any kind of risk with artists and have simply sworn off including images of art in anything they do.
Fortunately, some companies continue to be artist-friendly. A number of artists receive payments or royalties for art that appears in corporate media, but not always. Reasons for asking to use works of art without paying can vary. Not all companies have the budgets to include art in whatever they produce, and many have barely any budgets at all. Some refuse to pay because they believe the exposure an artist will get from having their art shown is worth allowing them to use it for free.
Let's say a set designer would like to use a work of you art in a network TV show. They could just as easily hang a public domain print or poster or leave the wall blank, but they're approaching you instead. If the production is bigger than you are, and the appearance can do much more for you than it does for them, a really good idea would be to say yes. Insisting on getting paid can be counterproductive (assuming they're not using your work to brand their show, to merchandise themselves, or to attract a certain demographic to their audience). If they love your art enough to want to use it, allow them to express that love freely. They can surely find all kinds of other art to use, but they chose yours.
Now supposing no one asked and you discover a work of your art or an image of it being used in circumstances like this. Before getting all upset, consider it a compliment. Not only is the appearance worth adding to your resume, but depending on the significance of the context it's being used in, it may even lead to future sales as well. After all, how many artists can say that their art was seen by a national television audience, for instance? Exposure like this can only do good things for your reputation.
As an artist, you have to decide, on a case-by-case basis, whether or not and under what conditions to allow your art to be reproduced or to appear publicly. If it is reproduced or used without your permission, you also have to decide whether or not to take any kind of action, or even complain in the first place. Publicity can sometimes be as good or better for your career than money even when the letter of the law is not being followed, so always consider the potential benefits to leaving things as they are before complaining or seeking restitution.
Unfortunately, not everyone who wants to use your art is willing to pay for it. That's just the way some people do business; if you don't say yes, they'll keep looking until they find someone who will. Here again, you have to decide whether the potential benefits are worth not getting paid. I can testify from personal experience that sometimes they are. Below are several additional pointers to keep in mind when deciding how far to let others go with your art.
** In general, allow your art to be reproduced as often and in as many circumstances as possible (assuming they're positive and potentially beneficial to your art career). The more people who see it, the better your chances are for getting shows, representation, making sales or getting commissions. As with any other product, the higher your name recognition, the more art you tend to sell. So rather than get all bent out of shape about it, add the accomplishment to your resume.
** The earlier you are in your career, the more inclined you should be to let other people reproduce or otherwise use your art at no charge assuming of course that they're not using it to make money for themselves and leave you out of the equation. For example, if a non-profit organization asks you to provide a cover illustration for their brochure at no charge, you should probably give permission and list it in your resume. If, however, a greeting card company wants to use your art on a line of cards, only give permission if they pay you.
** The more important the individual or organization asking to use your art, the more inclined you should be to grant them permission. Be flexible and easy to work with; you want as much high-profile exposure as possible. Don't start laying down conditions and trying to figure out how you can cash in. You're already cashing in simply by having your art chosen over that of all other artists. And if things go really well, this could be the start of a long and profitable relationship.
** In certain cases where your art is being used for commercial purposes and you stand to receive a large amount of publicity or exposure, but are offered no money in return, consider waiving fees that you might ordinarily charge. Once again, the earlier you are in your career, the more flexible you should be on this point. For example, having your art reproduced in a high-profile magazine that charges $5,000 for a full-page ad is equivalent to being paid for the use of your art (assuming the magazine prominently credits your work).
** When you're better known than the individuals or organizations that want to use your art, you should usually charge for its use. Even in cases where it's used only as illustrations and not directly to make money, your name may still be used in advertising or publicity to attract buyers and/or viewers. If, however, a non-profit organization wants to use your art, and you support their cause, you can grant them permission to use it at no charge and view doing so as making a donation.
** Don't be too quick to take legal action in instances where your art is used or reproduced without your permission. Many times, you can work out acceptable arrangements on your own with infringers. Consider not taking action when the reason for the use of your art is to draw attention to you and your accomplishments as an artist, and not to line the pockets of the parties doing the reproducing.
** Don't get a reputation for being litigious. Dealers, collectors, and other art lovers tend to avoid artists who regularly use attorneys or threaten legal action.
** Make sure you always receive proper credit for any use of your art; that's the most important part. Whenever possible, have the users provide contact information along with your name. This way, anyone interested in owning your art can easily get in touch with you.
Is a gallery offering you a show? Does someone want to rep your art? Entering into a business relationship? Signing a contract? If you answered yes to any of those questions, read Common Artist Legal Problems and How to Avoid Them.
Disclaimer: Please be aware that I am not an attorney and that the contents of this article should not be construed in any way as legal advice. If you have any questions of a legal nature, consult an attorney.
(sculpture by Jay Kelly)
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