Wednesday, January 30, 2013

Copyright and the creative process

"Seated Giraffe." Oil on canvas, 20 x 20 inches. 
As those of you who follow this blog probably know already, I have launched into a new body of work. I was basing the new paintings on animal-shaped toys. I thought it was fun. It even felt like a good progression from what I have been doing - both with painting animals and also with the simple "circle" paintings I have painted recently. I was excited about the new idea, and I jumped right in, as one does when one feels excited. I truly believed that painting these little toys was the same as painting a wine bottle, a Coke can, a car or any other random item that you might find in your house. Just like a still life. After all, Andy Warhol painted Cambell's soup cans! However, after painting a couple of these little animals, I began to have some doubts. I needed to put my mind at ease, so I began to do some internet searches. I pulled out my copy of Tad Crawford's book Legal Guide for the Visual Artist and began to read. The more I searched and read, the more I began to doubt that I should continue with my new paintings. I began to think I was violating a copyright. It was keeping me awake at night.

I finally decided to speak to a lawyer. The lawyer I talked to started out telling me that IF someone discovered what I was doing and decided to sue me, he thought I would have a pretty good case for "fair use." He was careful to explain to me what that meant, and why he believed that. Then I told him about some of the things that I had read, both in my book, and on the internet. As we talked, he was able to look up some of the cases I mentioned, and he began to change his mind. He then said that he would ask a colleague for another opinion. After hanging up with the lawyer, I no longer felt that I could continue to work on my "toy" paintings. I decided that I would write a letter to the company that manufactured these toys, and ask permission. The lawyer had advised against this, and told me that he believed that if I did ask permission, I would not get the answer I wanted, and more likely than not, the company would want me to pay royalties or a licensing fee. That is probably true, and I expect to be denied permission, or to have permission granted if I pay a licensing fee. I may not even get an answer. It doesn't matter. If my answer is "no", then I know I shouldn't keep painting these toys. (I have already stopped working on them.) Then, I am free to come up with another idea (which I am working on already.) There is always the small chance I will get a "yes!"

What have I learned through this whole process? Well, to begin with, I have learned that good ideas are only a starting place. They have to be turned over, tried out, bungled and refined before they become great ideas. I have learned that I have to listen to my own instincts. After all, this is my art, my life, and my little bum on the line if I do something that may be questionable. I have to be able to feel good about myself and my decisions, no matter what others may say. I have also learned that even things that feel like major setbacks at the time may end up being a launch pad for something even better.

I have also learned that when a deadline looms, small problems seem to become giants. Where's Jack and his beanstalk when I really need him, anyway?


Patty said...

Wha-? Who'd a thunk?

Karine, I am impressed with your insistance on getting this right. What goes around comes around.

It also points out another issue, which is that art law is a whole 'nuther animal. We'd all do well to understand it more fully - as you did.

Good luck with (another) new direction!

Deb Ammerman said...

Personally, if I owned that toy company, I would ask to purchase your paintings and hang them in my corporate offices. I would be very interested to find out what the other lawyer says or what response you get from the toy manufacturer. Good luck. :)

Annie said...

I am shocked, to me this is a still life and there should be no question about it, I see so many artists like Richard Prince, he took a photo of another mans photo and sold it for thousands of dollars! That seemed very wrong to me, but I see nothing wrong with you painting these toys.
However, if there is a question about it, writing to the company seems like the answer. xoxo

Anonymous said...

To a extremely talented friend:
Not a day go's by without a smile when I view your work. I wish I had more walls.

Karine Swenson said...

Hello Patty, Deb, and Annie! Thank you for your comments. I still await an answer from the company. I may not get one, but I haven't given up hope...yet.

Anonymous - thank you. I am glad to hear my art brings you joy. That makes it worth the struggles!