Photographic Fair Game

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=90 BGCOLOR="#006699" TEXT="#080000" background="05bfd5a3.jpg"> <div> <B>Photographic Fair Game</B></div> <div> <B>347-LOVE-ART  (347-568-3278)   Toll Free 1-877-512-3333</B><B>    Email: </B><A HREF="mailto:mike@mikealbin.com" TARGET="_top" TITLE="mailto:mike@mikealbin.com"><U><B>mike@mikealbin.com</B></U></A></div> </td> </tr><tr> <td valign="top" width=210 BGCOLOR="#FFCC66" TEXT="#080000" background="05cd2043.jpg"> <bR> <div> <A HREF="index.htm" TARGET="_top" TITLE="Mike Albin.Com "><U>Mike Albin.Com </U></A></div> <div> <A HREF="wd.htm" TARGET="_top" TITLE="Web design"><U>Web design</U></A></div> <div> <A HREF="ma.htm" TARGET="_top" TITLE="Marketing Articles"><U>Marketing Articles</U></A></div> <div> <A HREF="sr.htm" TARGET="_top" TITLE="Show Reviews"><U>Show Reviews</U></A></div> <div> <A HREF="mt.htm" TARGET="_top" TITLE="Marketing Tools"><U>Marketing Tools</U></A></div> <div> <A HREF="l.htm" TARGET="_top" TITLE="Links"><U>Links</U></A></div> </td> <td valign="top" height=390 BGCOLOR="#777777" TEXT="#080000"> <div> Photographic fair game?</div> <bR> <div> In my last column, I brought up the subject of patrons photographing our work at art shows. I gave my brief opinions on the subject and also asked for your responses. I received quite a few, so I thought I would share. I also e-mailed artists, show directors and promoters, and asked for them to chime in, and I called several lawyers to get their legal take on the situation. I even went as far as interviewing patrons at several of our latest shows to find out why they like to take photographs of artists' work and what they do with those photos once they take them. </div> <div> Let's start out with the legal concerns. There's this whole "public domain" issue concerning artists' work hanging in the middle of a street or in a park. In other words, because it's on display in a public place, people can photograph it. The lawyers I spoke with said that, as far as they knew, there had been no legal cases specifically on the subject of photographing work at art shows, so a legal decision in any future case would be up to a judge to interpret - and no one knows how that would turn out. By the way, the situation is a bit different when it comes to indoor shows, especially ones that screen patrons as they enter and require a gate fee. In those cases, it is much easier for promoters or owners of the facility to simply prohibit all photography. However, this is more of a show-rule issue, instead of a copyright one, and as with outdoor art shows, there is little legal precedent to guide the way. </div> <div> A point on the artists' side is that because we are paying/renting our space at the show, we <I>can</I> restrict people from taking photos <I>in</I><B> </B>our booths. To do this, you should post a sign in your booth saying "no photos, please." However, if you are one of those artists who likes to request a corner booth and hang work on your outside wall facing the street, your art is hanging in the public domain and can be photographed. Artwork hanging on the front wall of your booth, facing the aisle, is also fair game for shooting, as is 3-D work displayed with no walls around it. </div> <div> Legally, you can only ask patrons to stop photographing if they are inside your 10x10 space. You do also have the legal right to stand in front of your work and block them from taking photos. I've actually seen a few artists doing this at shows: waving their hands or posing in an attempt to stop photos from being taken. If you are expending that kind of energy to stop people taking pictures, are you losing sales in the process? Possibly. Have you ever made a sale while focusing your energy on stopping photo takers? Probably not! </div> <div> You should have a photography policy that applies to everyone. And keep in mind that you should not have a policy allowing some people - say, students doing a class project - to take photos but then restricting others from doing the same. Have one rule that applies to everyone. </div> <div> There are copyright laws that protect artists from people copying their work and then making a profit on it or claiming it as their own for public recognition. If your work is hanging in the public domain, there are no laws to keep people from copying or photographing it and simply using it or giving the image away. In other words, if you are a painter or a photographer and someone takes a photo of your work, they can legally go home and paint a replica of your piece as long as they plan on keeping it for themselves or giving it away for free. </div> <div> There seem to be a wide variety of opinions on this subject. Some artists couldn't care less if someone photographs their work, while others get very offended. Those who object to people photographing their work seem to be offended because they have either had their work copied or know someone who has. They've seen knockoffs of their images at Wal-Mart, Target or one of those sleazy "buy an original painting for $20 sales," at a flea market. Unfortunately, if your work is copied and sold for fame or profit, you would have to go to the expense of hiring an attorney to pursue the matter legally. Copyright attorneys do not work cheaply, and they do not work on a contingency basis, so you'd have to pay them up front - and your chances of winning are very slim. </div> <div> Now, I'd like to share a few of the responses I received. </div> <div> "I do not allow photos of my work," wrote artist Leslie Lafferandre. "I am a calligrapher and do hand-lettered short quotes, some of which are my own copyrighted quotes. Many want my work for what it says and not the calligraphy - so I have a no-photograph policy to protect my work. </div> <div> "We own a gallery, Lafferandre Gallery in historic Ft. Pierce [Florida], and have `no photographs' right on the door as people come in. Many of the artists that we represent have a no-photography policy with their work - it cuts down on copying designs, composition and work in general. </div> <div> "Years ago, a person photographed an artist's work at a show without asking for permission. The artist's wife not only took offense, she took action - grabbed the camera and hurled it down the aisle like a football. It smashed into pieces, and the person was so taken aback, he picked up the pieces and left." </div> <div> On the other side of the coin, I received two e-mails from artists who had a more lenient policy. </div> <div> "I read your column about taking photos in your booth," said Ed Hirschfield. "I am a photographer, too, and while [photography of my work] doesn't happen often, I try not to worry about it. In fact, I try to use it to my advantage. I also realize that most people will not get a good image of my work. Photographing work under glass or in plastic is difficult, and the average person will not get an image worthy of hanging. Instead of getting upset, I use their interest in photographing my work as a sales tool. When someone asks (and they usually will) if they can take a picture, I tell them, `Sure, I'm honored that you like my work enough to want to remember it.' I've even talked about the problems of glare and have gone as far as holding the photo to get them a better image of it. I then ask if they're shooting it to show someone else. Usually, they say, `Yes, I think my wife/husband will like it.' At that point, I hand them my bio sheet and card. `This has the information about my technique. Give him/her this, too.'</div> <div> "As they're leaving my booth, I say (with a laugh), `By the way, if you try to use the image commercially, I'll sue you for everything you have.' This always receives a laugh or smile. At this point, a connection has been made. Almost every time I've done this. they've returned to make a purchase."</div> <div> John Margerum wrote, "I always allow someone to photo my work. If someone is really trying to copy your work, then I suggest, with today's cameras, you would probably never know when someone was shooting your work. Every other cell phone is now a camera. If you think your future as an artist is in jeopardy as a result of people photographing your work, then you are not progressing fast enough. It takes a lot of time for someone to photo your work, develop the skills to produce it and produce a market competitive with yours. I suggest you relax, let the 99 percent of the photographers photographing your work for the fun of it enjoy themselves and concentrate on what you are at the art show for - selling." </div> <div> Kristin DeSantis takes a similar approach but is a bit more cautious. "I used to not bother with people taking photos, thinking they were all just innocent snapshots," she wrote. "People like to get photos of themselves in front of my larger pieces because they are so colorful - that I don't care about. When I notice a person trying to hide his/her camera to take photos (which happens a lot), that gets me upset, and I will confront the person. (If you have to hide what you are doing, you're probably up to no good.) If you ask me if you can take a photo, I will respond with, `What are you going to use it for?' If you tell me that you are going to use the images for your scrap-booking business (which is exactly what happened), the answer is no."</div> <div> Patty and I allow people to take photos of our work. I usually tell people as they are about to photograph one of our pieces, "Hey, there's a great shot of this piece on our web site!" I take great pains in getting those photos so our pieces look good. I've personally tried photographing our work while it hangs in our booth - without much success. Lighting is poor, colors are way off, and glare from people and other artwork affects the photograph. That's why I tell you not to take your booth slides while you are at a show! </div> <div> In addition to hearing from artists, I wanted to find out why people bring cameras to shows and what they are doing with the photos they take, so I started asking our patrons. I've gotten responses such as, "I want to show my husband or wife," or "I'm doing a project for school." I also have had a few people tell me they were going to try and paint a replica of one of our images but that it was for their personal use, not for sale. The way I look at it, these people are never going to buy a piece from us anyway, so if they paint a replica and hang it in their home, could this potentially cause us a loss of income somewhere down the line? Personally, I don't think so. </div> <div> I've tried talking to a few of those people who try and sneak photos of artists' work, but I have been unable to get what I would call a straight answer or anything noteworthy enough to print. </div> <div> The bottom line is, after all the research and the responses I have gotten back from artists on this subject, you are on your own to make this decision for yourself. There is no right or wrong answer. You have the right to protect your work, and the public has the right to photograph anything hanging in the public domain. Personally, we try to spend our time selling our work and marketing ourselves, and that seems to work for us. So, find what works best for you and stick with it! Good luck selling!</div> <bR> <bR> <bR> <div> This month's comment comes from Sue Dinenno, who discusses the rising popularity of giclees: </div> <div> "For the last six years, I have been involved in the management of a large art show in Vero Beach, Florida. Our show, Under the Oaks, is advertised as an "originals-only" show. Our application clearly indicates [that we allow] only 25 pieces of reproduced work, in a browse box, per booth. Reproductions may not be framed and hung. We make every effort to assure our customers that the work they buy as originals are indeed originals. Here's the problem: giclee. With the advent of this printing process on canvas and watercolor paper, the ability of the general public to tell the difference between an original and a reproduction is zip. Short of unframing the piece or carrying a jeweler's loop, the detection of a giclee is virtually impossible.</div> <div> "Unfortunately, as show organizers, we are notified regularly, by ethical artists, of artists who are selling giclees as originals. Some have the attitude that if the customer doesn't ask, they don't tell. Others utilize `embellishment' (hand-retouching giclees to give feel-able, see-able brush strokes) to provide the illusion of an original work for the purpose of fraud. Ethics, fraud detection, public protection: These are all subjects that need discussion and solutions." </div> <div> I know that a lot of artists will not even apply to shows where they cannot sell prints, while others prefer shows that allow almost no reproductions of any kind. If you are a show director or an artist and would like to comment on this, please e-mail me at mike@mikealbin.com, and I'll discuss the responses in an upcoming column. Here's your chance to be heard. </div> <bR> </td> </tr></table></body>