The thin line between fair use and infringement

As a representational artist, over the years I have done art from photographic sources, Both my own and others. I have recently, begun to wonder what the true meaning of copyright is and what is myth. I always worked from the guide line that if you change it 30% or more you are not infringing on the original authors rights. WRONG there is no magic percentage that lets you of the hook. Copyright is all about intent. The intent of the originator and the intent of the copier.

Right now, playing out on the world stage is a case that touches on this. It seems that an artist Shepard Fairy created a poster entitled "Hope" of President Obama during his campaign. He used an AP photo, by M. Garcia, of the President as the bases of his poster . For me this is a timely topic. Because I do agree with Fairy that an artist can use a photo under the fair use clause in the Copyright laws. http://www.copyright.gov/fls/fl102.html Although, he did more than look at an image and interpret it into a different medium. He took the image into his computer and posterized it in photo shop and added a few additional elements.

Mostly, as an artist I have found images to work from based on need or necessity, not having availability to see or witness an event or subject matter. This artist (Fairy) just copied the image. I think that it is a skinny hair he is splitting. Here is his argument as I hear it. . . Intent, the intent of the original photo was to document the public figure in a factual news setting. Intent, the intent of the poster was to create an emotional image to mark the message of President Obama's campaign. Here in lies the rub, the copyright laws as they play out in the real world are subject to interpretation by people (judges and lawyers). How do you judge the intent of the artist? Both the originator and the user? Who can say that the originator did not want to convey a message of hope inherent in the expression captured in the original photo? How can you say that the future president was thinking hope and not just remembering a pleasant memory? So this is the thin line we all travel in the artist world post internet. We can all find images of anything simply by googling a thought. Bam! there it is, hundreds of thousands of images and pages to look at. Instantly. So the trap is there, the intent, that only we know, and fair use, that is subject to interpretation. So what are we to do?

One online group I belong to adheres to the "get permission first" or simply use only your own photographs to work from. That is probably the safest course of action, but it is not the only way to go. In investigating copyright laws I have come to understand a little. Unauthorized copying of an image, a book, essay, cd, dvd, etc., is an infringement, no question. But if I look at an image and draw it by hand, am I "copying" it or am I building on the image to go further, to add to the image. A photograph is a moment in time captured by a mechanical devise with a human hand and eye guiding it. A drawing is an interpretation of that moment, as long as the drawer does not trace or project the image verbatim, how is that a copyright infringement? And then there is intent. Do I, as an artist want to make a painting of a photograph? Or do I want to use the photograph for information to create a painting? So in the latter case the photo becomes research, which is allowed under the copyright act. More in the context of scientific copyrights, but I think that a case can be made for the visual arts as well. Copyrights are meant to protect the author/artist from having monetary gains unfairly taken from them. But the copyright laws are not meant to stop creativity. Once and image comes into the world it exist, and by existing it is there for all to see and to incorporate into their reality. Van Gogh could not have painted like he did if Monet had not painted like he did. Art and images feed on each other, and with the internet the speed by which they feed off of each other is gaining momentum.

A poster for a campaign, a photo for a news story, one can not exist without the other, now. The bottom line no matter how the Fairy case goes, both Mr Fairy and Mr. Garcia, have received tremendous publicity and the value of both images has risen. I believe that ultimately this will be settled by a cash settlement and that all parties involved will use this 'fame' to further their careers. This is the greater reward for the parties involved with this copyright case. This reward could not or would not be as great if it were not for the internet, the same entity that created the case. I am sure that Fairy found Garcia's image on line and took it and used it as the bases for his poster. Without the internet he would have had to find a photo print and scan it into and without PhotoShop® he would have had to drawn and image or photographically enhanced it in a dark room. So, if Fairy had use an more obscure photo or (and he does) a more obscure person to create a poster would this even be a subject? And, how many times a day is someone without a national stage downloading and using internet images? The internet has, by its very nature, created this perplexing dilemma.

The only solution for us in the visual arts is to self police. We need to try to use images we have permission to use, or our own photos, or interpret images the old school way by drawing by hand using the eye to hand filter. I do not say that we close our eyes to the images out there to see and build upon, but we do need to be vigilant in our "fair" use of those images. For most of us we cruise under the radar, far from the national stage. Most of us would love to have the problem of Fairy, because ultimately (though not always) copyright issues happen because someone has made money from someone else's image. Making money is a problem I would like to have!

In the begining

Hello, I think, I am a first time blogger and I feel a little like the first radio broadcasters must have felt. Is any one out there?

I wonder if what I am going to say is relevant or interesting to to the reader. Can spell check catch all my typos? Will what I write make the readers angry, happy, sad or bored? Does that even matter? I do not know, but as always in my life when i did not know, I simply forged ahead. Dam the Torpedoes, full speed ahead!

My name is D.T LaVercombe, I am an artist and have been almost all of my life. I knew I was an artist when my mother told me as a young boy of a Dutch artist Vincent Van Gogh. She showed me pictures in books of paintings he did, and told wondrous tales of his life. I was hooked. I took crayon to paper and nimbly drew the things I loved in my young boy world. Horses, deer, cartoon characters, my dog Muffet, rocket ships and fast cars. I eventually graduated to paints and canvas and just about every other medium I could try.

I went to art school and learn some things, I became a commercial artist and illustrator and learned other things. But all of that is ancient history. I just paint, I paint for love of the journey, the smell of the oils, the bounce of the canvas and the challenge of the image. I am a representational painter, not a realist. I am influenced by many styles of art and many artist past and present. They exist on the same plane with me and you, dear reader. What i do in some ways is out of date. I am not rattling the pinnacle of Art, with a capital A, I am not Van Gogh challenging the art world with techniques never before seen. I am not Picasso shaking the fiber of existence to its core. I am a humble painter. After the second half of the last century, I am not sure that art has anything else to prove. Maybe it does and I am just not clever enough to see it. I just paint, I move paint (oils mostly) with brushes on canvas to achieve the results I am looking for. It never is as I plan, totally, and that is the one part i love more than all others in being an artist, a painter. The unplanned, the happy accident that adds so much to the painting. The slip of the brush, wrong color on the brush that blends just right, these things make art for me, a living entity.

The experience of creating is a combination of willpower and grace, and knowing when to accept each of those and when to reject what doesn't work and start over again. When I have taught other about painting, they mostly have wanted me to say: first hold the brush like this. . .second use this color. . . third move the brush this way. . .etc. It is not how to create, the mechanics are personal and come with trial and error, over and over again. Experience is the only training that I know of. Oh, a teacher can show you their technique, but they can not have experience for yourself, to feel the sensation on the texture of the paint as it stumbles over the canvas leaving a trail of color in its wake. They cannot tell you which of those strokes is working for you and which is not. Only you can. It is for the love of the discovery, that i create and ultimately so do most artist. Never before has this unique combination of colors and stroke existed, it is new and will never be done again. Each new painting leads to the next, feeding your mind to go forward, to see what is around the bend. I tell my students, when you are done with a piece, move on. If it did not turn out the way you wanted throw it away or paint over it. That is how you learn art, not by methods or by techniques, but moving on, trying again. It is not easy to move on, the mind wants to keep trying to reach the pinnacle, but it is unattainable. Everything you see and feel just leads to the next piece, the next painting. Do not fight it.

Creating is not for everyone, it is hard work and the reward is small. All my life people have said to me that they admire my "God Given Talent" or that they wished they could paint. Well God did not give me anything, I worked hard to develop my talent and for nearly 40 years. I am still working on it. If you wish you could paint, just do it. The first painting will not be a good and the next, nor will that one be as good as the one after it. It is that easy. just do it.