Absolutely Safe Legal Use For Pod?

Great question(s). I'll be curious to see the answers.

I have seen some discussion before about car names/logs, famous products (Coco-Cola for example) etc. What I understand is that as long as it is "art" and not a commercial advertisement then you don't need permission.

But that is just my understanding and I don't know if it's "the law".

Some great questions--I don't have the answers but will certainly look forward to hearing from those that do.

F.Y.I.:


1- Creative Commons license

http://creativecommons.org/



2- What's in public domain

https://copyright.cornell.edu/resources/publicdomain.cfm

Skip, sooner or later we will all be giving up the "fine art" notions...Sean has already announced that pixels.com will become the main site.

Hey Marlene,

I wouldn't say that I'm specifically giving up on the fine art notion (whatever that is) ;) I'm just facing the reality that if you want to move POD product in numbers that make it worth your time, it's not going to happen with the more unique offerings. I also come from from a graphic design background, as I believe you do as well? And from what I've seen regarding what's being purchased the most, both you and I could crank out that kind of stuff all day. Put a little unique spin on the familiar, badda-bing, we're ranking and moving giclee prints right alongside the so-called "pros". Much easier than any of this personal "creative expression" BS. ;)

Truth is, I never intended on trying to sell anything anyway. Started making images when I was around 13 or 14 and obsessively kept on doing it. Eventually, people started giving me some money to do it and asking if they could also buy prints. So, I can't see stopping what I started doing purely for myself over 3 decades ago. Just will give up trying to move any of it in volume levels. Selling to a mass general market (as what FAA has become) it's a whole other ball of wax. Watching trends and getting a feel for the pulse of what the average buyers want, then putting a little (slightly unique) creative spin on it, shouldn't be that tall an order.

Check out a couple of my new "POP Decor" adorable doggy portraits. And I don't even have a dog. Priced to sell. Get'm while they're hot! LOL

Marlene, what is the difference between Pixels, and FAA? I just went to pixels and looked it seams like they are one and the same site, just different names.
Thanks

Terry - Go Behind the Scenes - Domains
explains all

They are the same site.

Marlene, regarding pixels.com, when was it mentioned that FAA would become pixels.com? pixels.com looks like FAA. I'm guessing it would make sense since "pixels" is shorter and easier to remember than FAA expanded out.


Peter

There are tons of infringing works on this site. I don't think people are aware really. It's a minefield at times. For instance, the Eiffel Tower is ok, but the Eiffel Tower lit up at night is trademarked and you may not sell images of that. There are many other famous landmarks you may not sell, including the Hollywood Sign, everything at the Getty Museum, all properties in the National Trust in England, and many many more. Some are acceptable for commercial use with a property release, some never. If you're going to be a professional, you must educate yourself in these matters. I've seen many Disney characters on this site, Dr Seuss, and more, all of which are protected by copyright or trademark or both. It's unbelievable. And making a trademarked or copyrighted image into art does not make it ok!

PIxels does not get the name recognition etc that FAA does.

Pixels is now the parent company, but FAA is the main trademark. The two
sites are synchronized. With servers synchronization is easy.

Dave

Actually, I'm well aware of the trademark & copyright legalities as they pertain to commercial use, but I'm not sure the same laws apply to one-off art pieces like we have here on FAA.

These kinds of images have been on FAA since the beginning as far as I can recall, and this sight is visible enough that it would have attracted some cease and desist notifications by now if it weren't legally allowed. So my guess is that the rules are different for "works of art". Does anyone know for sure?

For example, the last time I toured the biggest galleries in NYC, the most prestigious in Chelsea & SoHo, there was much work that used very well known commercial logos, trademarks, cartoon characters, and likenesses of famous celebrities, often not in the most favorable light, and I'm betting they didn't have releases to use thEm from the rights owners. So, I bet it's ok.

@Leslie

Making it art actually does make it absolutely okay. Art is speech and I can create "art" about WHATEVER subject I choose including celebrities and whatever else. I am constitutionally guaranteed the right to free speech. As long as I'm selling it as wall art, it's good. If I were to sell a piece that I made using a celebrity or a certain make of car on a phone cover or a mouse pad, that would not be okay as it would be considered commercial use. I honestly don't feel bad about creating art using an image of celebrity or a brand of any kind. Warhol certainly didn't ask for permission and didn't feel bad about it while he made millions from Campbell's brand. If it's good enough for him, it's good enough for me.

@Skip
There are TONS of threads on this tired subject. They always devolve into people repeating themselves endlessly about how strongly they feel one way or another about copyright law and public domain and their sense of morality or ethics. All you have to do is enter the word "copyright" in the thread search field and you can read these arguments for hours and surely find whatever answers you are looking for.

Skip,

If some uses material that is copyrighted by someone else, if the copyright holding artist or artist's estate notifies FAA, the work will be removed if it is infringing.

This is the process by law each and every time and at each and every online art sales website.

There is no other process. If the copyright holder does not know there is infringement it rides. That is the legal process.
No one else can force this issue.

I do know that FAA has a IP attorney. I asked about my work's acceptability to this site a couple of months ago, the response was if need be they
will run it by their attorney.

Dave

Lance,

If he looks it up he will generally get feelings about this masquerading as the truth.

These boards are very easily misled on this topic.

Dave

https://siteanalytics.compete.com/fineartamerica.com/#.VHF5jIvF-jE

These are the viewership numbers.

Remember to subtract roughly 50k to 100k artists who routinely show up here as unique visitors every month.

Basically almost a million visitors per month going into Christmas.

Dave

Lance, you're contradicting yourself in your reply. Youre saying it's ok to use trademarked/copyright material if it's art, but its not ok to sell it... which is exactly what's being sold here, in elite galleries, and by Warhol.

Also, my questions have nothing to do with ethics or morality. I'd like an official response from someone at FAA that confirms the way trademaked & copyright protected products, logos, and likenesses are legally safe to sell on this site.

And, recommended sites to find public domain art, photos, and technical graphics like maps for example, that are definitely safe to use and resell as POD art on this site.

Again, this is not anything to do with morals or ethics. Just the facts as it pertains to the law.

@Skip
It's not a contradiction. Selling an image as wall art is different than selling an image on a phone cover. In the first scenario, the customer is buying the image as a piece of art (speech) to hang on there wall. They are basically buying the image for the sake of just having the image. That is different than selling a phone cover with the image on it. In that scenario you used the image to sell the phone cover. Those are two very different things.

David,

You're the perfect person to ask on this! I see that you have several composites using well known paintings of Van Gogh that are for sale. They are changed somewhat, but easily recognizable. You've got the official ok to continue offering these for sale? I was also thinking of those selling renditions of other famous people like Marilyn Monroe and Kurt Cobain whom I'm certain there are enties who still maintain copyright ownership of these likenesses.

I see Che too, but I know there's no one who owns the copyright on that particular famous image of Che, so anyone can legally use the image for whatever they choose, free in clear. Other celebrities and paintings of muscucians, I'm sure about.

Again, I'm sure Sean would have killed their inclusion on the site if it were illegal. But I don't get how some celebrities and estates of celebrities put the brakes on most all use, but selling POD prints is legally ok.

Lance, I get what you're saying, is you can't use someone's copyright/trademarked logo or likeness to sell a phone cover (as is done here) but I don't see the difference in using a trademarked/copyright protected logo, product or likeness to sell a print. That's a product just like the phone cover. How does something for the wall make it "free speech" and a phone cover is not?

Making it art does NOT always make it ok. Sorry. Not always, and before people try to sell images derived from photos they did not take themselves, they had better do some research. Remember Shepard Fairey, the artist who created the famous Obama Hope poster? He used an AP photo for it, and they went after him in court for copyright infringement. He got 2 years probation for destroying evidence of his actions. And this from a Huffington Post article on this topic:

Fairey is not the first artist to have been involved in a high-profile copyright case, though the criminal charges brought against him were unprecedented. Years ago, Jeff Koons was taken to court by a professional photographer, Art Rogers, after the American artist used one of Roger’s images as the model for his 1988 sculpture, “String of Puppies.” Koons argued that the use of the image fell under fair use stipulations, but a court rejected this claim, requiring Koons to pay a settlement fee as well as ship one unsold sculpture to Rogers. Recently, Richard Prince was accused of inappropriately borrowing an image from photographer Patrick Cariou in 2011, further emphasizing the slippery slope of what is and isn’t acceptable reappropriation. During the trial, the prosecuting attorney asked Prince, "There's something about appropriating images from other people that helps you make a work of art that's more believable, is that right? Prince said: "I guess you can say that, yes."

My original questions are clear and direct. If this has been discussed ad nauseum in the forum, then certainly there must have eventually been a final resolute answer wasn't there?

Can we safely assume that since these kinds of trademark and copyright protected images are sold as POD throughout the site, and in large volumes based on the best selling work listed and as is evidenced by the constant feed of recently sold POD art here on FAA, that's it's legally safe to do so?

And, does anyone have a couple favorite public domain sites with great sources for commercially reusable source images that are legally safe to use in POD prod it's here?

Leslie, you're referring to artists who blatantly reappropriated copyright protected work. I'm asking about the appropriation of celebrity likenesses, renderings of famous celebrity photos, popular cars, motorcycles, product logos, sports logos, etc. That's not really the same thing as in your referenced examples.

Here's a real world example. Several years ago I used the American Gothic painting as source for an illustration to be used in a restaurant Thanksgiving advertisement. The illustration was clearly based on the painting but was changed significanly and the pitchfork was swapped out for a giant eating fork.

I told the restaurant who asked me to come up with something at the last minute, that I wasn't sure if it always legally ok. They took a chance and ran the ad anyway without running it by their attorney since it was just a local. Weeks later they were contacted by attorney's representing the estates of the couple originally depicted in the original American Gothic painting. They had to pay up and pull the ads.

In another ad for a jeweler, I used a famous photo of Einstein as source for a sketched illustration based on it and replaced the eyes with diamonds. That company was eventually contacted by the estate of the photographer who'd originally taken the photo the illustration was based on, demanding they cease using the illustration and pay $5000 for the one time use. They fought it, lost and had to pay up.

Now, in these two real world examples, the likenesses and illustrations were being used in advertisements. They were no different than many of the illustrations that reference famous art, celebrity likenesses, logos, etc. So, even though the the work I produced could not be used for commercial purposes legally without legal repercussions, could those same images have been sold here as "art" in the form of POD's without fear of lawsuits against me and/or FAA?

@Skip

A print is a piece of wall art. Like I said before, the customer is buying the print just for the sake of having it as a piece of art on their wall. The phone cover has a different utility. The biggest difference is the utility part of it. The primary utility of the print is to be wall art. The primary utility of the phone cover is to protect a phone. The art is secondary as decoration for the phone. The art's utility on the phone case is to sell the.phone case. That's about as good as I can break it down for you. Anything more and I would just be repeating myself. Good luck on your quest.

Skip, you asked the question, "Can we safely assume that since these kinds of trademark and copyright protected images are sold as POD throughout the site, and in large volumes based on the best selling work listed and as is evidenced by the constant feed of recently sold POD art here on FAA, that's it's legally safe to do so? "

Since FAA consistently refuses to take responsibility for the legality of work posted to the site, placing the onus firmly on the contributor, I don't think that is a safe assumption to make.

Good point Jane. But, something tells me that it must be a different category under the law if it's "art" as Lance says, or you wouldn't see the same kinds of appropriations in the biggest, international galleries.

M just not sure if there's a legal difference between appropriations used in a single painting or "free speech" expression and mass produced digially-printed giclee copies.

Someone referenced Warhol who's work is an excellent example and was/is mass produced. surely he didn't have to get consent from Cambel's Soup and the estate of Elvis I order to sell lithos of those trademarked logos and likeness did he?

I did read somewhere that he was actually sued by the soup company (or whoever designed the label in the first place) and settled out of court, but I don't know whether that's true or not.

You may upload anything as long as you have read the Terms of Use and follow them

Representations and Warranties

You represent and warrant that:

(A) You have the full right, power and authority to enter into this Contributor Agreement and to fully perform all of Your obligations hereunder;

(B) You are under no legal disability or contractual restriction that prevents You from entering into this Contributor Agreement;

(C) The Images and all parts thereof are owned and/or controlled by You, unencumbered and original works and are capable of copyright protection in all countries where copyright or similar protection is available;

(D) If the Images contain any human likeness from which an individual may be identified, You own or have acquired all rights to use such human likenesses;

(E) If the Images contain third-party trademarks including design marks, the inclusion of the trademarks is pursuant to license or written consent or qualifies as a lawful use under U.S. intellectual property laws;

(F) The Images are neither obscene nor defamatory and do not infringe the copyright or any other rights of any third party, including, without limitation, trademark rights and the rights of privacy and publicity

;(G) There is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect the Images or which might in any way impair the rights granted by You hereunder.

And

You represent and warrant that: (i) You own the Content posted by you on the Website or otherwise have the right to transfer rights in the Content, and (ii) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other intellectual property rights of any person. You agree to pay for all royalties and fees owing any person by reason of any Content you post on the Website.

http://fineartamerica.com/termsofuse.html?document=contributortermsofuse

Nobody on the forum is able to give definitive legal advice and FAA will not give legal advice.

From my perspective, it appears that the lack of a definitive answer is due to POD falls between the two traditional licence criteria of editorial and commercial.

The two real world examples that Skip describes are clearly commercial usages, and a case could possibly even be made that likenesses on a phone cases are an "endorsement" of the phone itself, moving it into commercial territory.

The requirement for releases depends on the usage involved, but arguably art has no practical use, it just is.

FAA's terms basically say if you need releases, you must have them which doesn't help.

Pixels will become the main site when Sean abandons all the rest - seems there was in a discussion just yesterday that stats still point to FAA as being on top.

regarding art from celeb likenesses, here is an eye-opening article by an expert on intellectual property rights.
https://graphicartistsguild.org/tools_resources/beware-the-right-of-publicity

Skip, Lance has the right answers. If the art is only selling itself, you're good. That includes prints. Again, people are only buying prints to enjoy the art.

"My original questions are clear and direct."

But copyright law isn't, except for the broad strokes. On some of the finer points it is purposely left vague to allow a judge to interpret the law on a case by case basis. If someone manages to discover a conflict that doesn't fall neatly within established precedents, judges can establish the new rule.

Because of that miniscule sliver of doubt, we get the endless splitting-hair arguments on copyright and an endless stream of "what-if" and "it could happen" scenarios that have never happened. Nothing in life is 100% risk free. Most of us understand that and act accordingly. But if something is 98% risk free, those are generally fantastic odds.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

A few things here. You are asking for a blanket statement on a broad and complex issue. And you are asking people who are not qualified to answer unless they are copyright lawyers. (and even lawyers don't all agree).

Thanks to Ricardo for the two links which can serve as guidelines. But remember every instance of copyright is unique. Anyone who thinks they "know" anything about copyright, public domain or that meaningless and often tossed about term "creative commons" should get be thoroughly versed in what is on those 2 sites. A creative commons license is just another type of license as you correctly surmised. Copyright is a lot more complex than most people seem to think and you can not just look at an image and know that it is copyrighted or not. Especially older images.

As for trademarks, they are in a different category. Trademarks may or may not include copyrighted art. Trademarks do not apply to art in all cases. But in some cases they do.

As for celebrity images. They have the right of publicity. For fine art, celebrities that have tried to assert that right have usually lost in court. The right of free speech trumps their right.

Keep in mind that laws are different in different countries and states so you have to be clear what other laws apply.

I often hear people decide what is "allowed" and what is not "allowed based on their experience at stock sites or commercial sites that sell product. FAA originally sold only art and not product, so those that have work that is not suitable for commercial stock or use on products often choose to sell here. That gives the impression that somehow it is a free for all. Not true. There are laws that apply and are enforced. There are people who break the law and most will have their work taken down if the copyright owner wishes that.
If you see something that is copyrighted and you think the artist should know, tell the copyright holder. That is the person with the power.

FAA is not the copyright police( there is no such thing) or the federal court. Nor would you want them to be. Of course you can always report things to FAA but if there is no complaint from the copyright holder on record I doubt there is much they can do.

So why do some PODs have strict rules and some do not? Because some PODS also sell commercial product. Most companies do not want their logos on products they did not approve. The POD sites have simplified things and don't distinguish between art prints and products such as t-shirts. That does not mean there is no difference in legality. it just means that the site would like to treat everything as commercial even if it is not. That leads to a lot of art that is perfectly legal not being offered there. So the artists come here, which is more in line with the law and does not make up rules or censor art for convenience.

To Skip I think you already know the answers to your question. If you choose to use art created by others you must do the research on all laws that apply and it will be on a case by case basis.

Almost all my work that uses copyrighted or trademarked material is already approved for use and sold as editorial. I am well versed in the rules for that. I consider my art to be in the same category. And I don't hide. I always post a link from here to the trademark holder web site or social media page. Because it makes no sense to ask permission to do something that needs no permission. But I always give the trademark holder a chance to see it so it can never be said they didn't know. They often like it. By the same token if you do original celebrity art you should at the very least send a copy to the celebrity. I know some who do this all the time. They (celebrities) usually thank him and often even offer to sign limited edition prints. That's the class act way to do things.

As for Pixels and FAA being the same, they are not. Phone cases do not appear on our personal pages on FAA. That helps keep FAA an art site not a product site.

Menega ,that was a great link for those that want to begin to understand celebrity "right of publicity" and how it applies to art.

Bradford, one of the best posts here on FAA / Pixels

Thanks Abbie and I made some last minute minor edits as usual. I am not answering any rebuttals as I have 2 afternoon gigs today.

Indeed Bradford. Important to highlight some things might be ok as artwork on a wall but when placed on a t-shirt or other product you have an new set of rules.

Skip,

Bradford just wrote a great post. My small knowledge of this is in PD work. The artists work I use have been gone well over 70 years. Their estates no longer have a claim.
My work has been sent into copyright.gov to be registered. My work is defined as derivative work legally. So if granted my work will be officially copyrighted.

We have met the enemy, and he is us.

Dave

To Bradford, No... I don't already know the answer to the questions. That's why I asked them.

Actually, one of the most useful posts here regarding my questions is from Menega. Great link and very informative. I highly suggest other's who share my concerns check it out.

To Abbie, yes, I've read the TOS. I'm aware that FAA assumes absolutely no responsibility for copyright and trademark violations on this site. The burden is completely on the artists. This is why when people contact me and ask if I recommend selling stock images on FAA/Pixels I tell them I personally don't feel comfortable with the stock image arrangement at FAA/Pixels. With the exception of very few images, there is no way in heck I would take that risk. FAA/Pixels doesn't have the staff to verify the work is legally clear to resell and use commercially. When I upload to other services that sell stock, they go over it with a fine-tooth comb. And, if something is missed, they take the hit. Not me. If there's a logo I didn't catch in the background, the image get's rejected on those sites. If there's a building in the background that needs a release from the architect who designed it, they reject it. If they miss something and get sued, they take the responsibility for it. Not so here at FAA/Pixels. You're completely on your own.

I'm not a copyright attorney so I don't want to take the risk myself, especially if I know that FAA/Pixels does NOT have my back.

Look, the reason I ask the questions, as alluded to several times above, is that I've been going through the site to see what successfully sells in volume here and what is not. Looking at what types of work are favored by FAA's staff and tweaked algorithms, and what's not. Looking at the kinds of artists and work that FAA/Pixels features in it's promotional videos, looking at the work that's listed as the best sellers, etc.

I'm looking for common themes, threads and patterns. That's what you do if you want to market to a specific group. What I discovered its that there are some nice unique offerings mixed in, but a lot of general, familiar, generic stuff too. Mostly, the latter.

The pricing of successful product movers is on the low end overall. Not bargain basement, but not gallery level pricing. Seems to be a notch slightly over what you can buy at brick and mortar shops like World Market, Costco, Pier One, Target, Walmart.

Of the generic themes, the maps and city silhouettes appear to sell very well here, and the exact same work by the same artist appears to be doing very well on at least a dozen or so other competitor POD sites as well. I'm guessing you can get public domain cleared maps to use from all sorts of government agencies, add a little creative ink splash, and boom you're done. You've created something that everyone can relate to, you're not using art that requires copyright clearance, and you've given it a creative flourish by adding some abstract ink splats. Brilliant. Done and done.

Then, I see that you can get city silhouette vector files for free, or for cheap from most stock sites. But can those be reused and sold commercially? Why yes! Most of them can. Another good idea that can be replicated with my own twist. Done and done.

Ok, now we come to an area that's more tricky and potentially problematic, renderings of recognizable celebrities. That's another story. No matter how much ink splat you add, or even if you rendered the lithographic version of the celebrity yourself, as long as they are recognizable, I think there has to be consent. From personal experience, I know that for commercial use, where you're using images like this to sell another product, you absolutely have to have consent. For art work, I'm not certain about that. Again, Menega's post with link are very helpful with this question.

Then there's the baseball hat paintings that feature sports logos featured prominently in one of FAA/Pixel's artist interview videos. I know that's definitely not allowed for commercial use without consent. But for artistic renderings, I'm not sure. Maybe this artist contacted all of those team agencies and got specific permission to do so? Or, maybe it's not needed? Or, maybe most of those agencies really don't care and would never be bothered enough to do anything about it unless there was serious money being made off them? Same goes for the use of popular sports car logos, etc.

So, we know that FAA/Pixels does not assume legal responsibility for work that may not have proper legal consent and may violate copyright. That burden is solely and squarely on the artists. But, they do promote work prominently that does appear to straddle the line.

Again, I do not know the answers to these questions. However, this is an "art" site with loads of artists who've been trying to sell their work with all sorts of celebrity likenesses, logos, trademarks and products featured prominently in their work. One would think this would be a good place to get good answers to these questions.

My guess is that the logo use, likely doesn't have proper consent, but the agencies would likely never do anything about it, and it helps promote their agencies. And the celebrity likeness use is also likely not legally clear to do so, but that there's just so much of it, no legal entity or estate would ever bother with it unless there was serious money to be had by suing you. Since I'm guessing it'd be fruitless to go after FAA and that the artists aren't likely raking in all that much off a few hundred prints, then it wouldn't be worth pursuing them either. So, it's probably not legally ok, but no one will likely ever do anything about it.

David, that's good info that's to the point and specifically answers the questions I asked you without assuming anything accusatory or inflammatory. Thank you!

Making a portrait of a celebrity isn't the infringement. Using a photograph taken by someone else IS. That photographer earns a living from his images just as you do, and it's his intellectual property, not yours. The examples Skip used might fall under the heading of parody or some other fair use. Some of you are trying to find a reason for it to be OK if you take other people's work and earn a living from it somehow. It is not ok. If you didn't draw it. it's not your intellectual property. If you didn't take the photo, it's not your intellectual property.

As to some of these public domain sites, be careful. In doing an image search to see where some of my work is in use, I came across a person on the Z site selling one of my images on everything from key chains to business cards, T shirts, and every other thing you can imagine. I had her shut down within minutes of finding it. But did I get any of her earnings? Nope not so far. That same image was stolen by a professional designer and used as a logo. When I asked her where she got it. she admitted she had traced it from a jpeg she found online and converted it to a vector.

In the process of shutting down the little amateur Z person, I came across a forum discussion there. One of the users gave a url to a site with "Public Domain" in the name, He authoritatively told all the other users they could go there and help themselves. I went there and found to my dismay that the entire front page were stock images including my own and those of people I know. Our work, even if it's stock, is most certainly NOT public domain, and you may NOT use it in this manner.

Finding it for sale on FAA or anywhere else is no guarantee that it's legal or ethical. Just look around you at the images on here of the Hollywood sign, the licensed Disney and Dr, Seuss characters, Marvel heroes, and more and on and on. Clearly FAA thinks it has washed its hands of any problems with its disclaimer that each artist is responsible. Well it has not, and this whole thing is one big recipe for disaster. Don't think it's all ok just because it hasn't happened yet.

I earn my entire living from my images. This IS my day job. And I am alarmed at all the amateurs springing up all over the internet with no concept of intellectual property. The best policy is to draw your OWN art and take your OWN photos for derivative work. And when you do take your own photos, make sure what you sell is not trademarked, and if it is you may use it ONLY as editorial. I'm sorry if all this POD stuff may not be quite as easy as it looked to you at first.

Skip,

You have made originals, I am more than assuming. Those originals have value.

You are selling prints here. Prints copied from your originals. Those prints have a modest value.

Your pricing structure is your business only, but you are making a lot of noise about things for the last day or two.
You might consider that modestly valued prints should be set in a different price structure than what you have as of
yesterday. I have not checked your prices today.

Dave

@Dave, I had a four-year legal battle with a publisher who lied to me and stole from me. During our contract arbitration, my lawyers found out he was busily slapping copyright notices on years of my work. That doesn't mean those notices were valid. Not saying yours aren't, just saying.

Dave, this topic has nothing to do with my previous posts. But since you asked, I'm going to create a gallery that only has my work that's sold for the higher prices, and other images that I feel have the potential to sell at the same higher rate. Those will be the "premium edition" collector series or something along those lines and will remain priced high. I will have a second tier of work that I don't feel is unique enough to fetch the higher pricing, but are still unique enough to garner a slightly higher than average pricing structure. And then there will be a 3rd tier that's work cranked out that's not as unique as my personal work, and intended to hopefully attract the eyes of the average budget-motivated buyers who're buying most of the generic, general-themed stuff that appears to be popular on this site. That tier is now called "POP Decor" and will be priced the lowest to hopefully move more volume.

I'm now doing research to try and figure out what kinds of images should be created for that last category. And thus, the questions regarding copyright in this thread. Nothing about "making noise" about anything. Just asking fellow artist colleagues relevant questions about the business of selling art here. Nothing more, and nothing less.

Please don't make this about other threads that have already been admonished and closed by FAA staff. This thread is strictly an informative, business only, relevant art business post. Period.

Leslie,

Yes! That's exactly what I'm talking about. After I saw some of the popular selling images here at FAA/Pixels that look as if they could have been easily derived from free public domain graphics and photos, I did some searching for public domain sites. I know from the past, that there are actually some very nice public domain images that CAN be used free and clear to be reused and sourced for commercial use. All you have to do is a little digging and you can find some free and clear gems that you're completely free to use without violating anyone's rights at all.

The problem is, many unscrupulous sites are using the words "public domain" in other than it's official use. They're putting those words on banners, but the content is clearly not free and clear. Or, they add a few really worthless public domain images, but use that to drive you to stock agency sites. Or, they claim it's public domain, but not allowed for commercial use, ie. such as the Time Life back catalogue that's full of great images that are labeled as "public domain" and free to use, but NOT for commercial resale.

So, I thought I'd ask here if anyone knows of any official, government or public trust certified sites that DO host ONLY those images that are completely free for use commercially without fear of violating any copyright laws. Does anyone know of any good sites they can recommend that meet this criteria?

Bradford wrote: "As for celebrity images. They have the right of publicity. For fine art, celebrities that have tried to assert that right have usually lost in court. The right of free speech trumps their right. "

in the link i posted several comments above and which probably no one is reading,
https://graphicartistsguild.org/tools_resources/beware-the-right-of-publicity
the article (written by an expert on the subject) states that "right of publicity" varies from state to state in the US. it also goes into, and this is where it gets really hairy(!), that while the state of california knows exceptions respecting "fine art" "It is unclear whether the term “fine art” in this section is intended to apply only to works of “recognized quality,” as determined by expert opinion" (think about what that can mean) and "would appear to be limited to unique works, not including mass-produced reproductions" which an image produced by via POD rather than an original oil painting for instance can be construed to be.
the article concludes with: "There has been some discussion in recent years about creating a single, federal right of publicity statute which would eliminate the confusing inconsistencies in the various state laws, but no such change in the law is expected anytime soon. Until it happens, the prudent artist has only two choices: master the byzantine laws of all fifty states or get those model releases."

I think dropping FAA would be a big mistake, although don't see any problem with the two sites running in parallel. The amount of marketing that has gone into FAA alone must be a big factor. Sean has got a good marketing head though and don't doubt his knowledge in that environment.

Just did some more investigating of the specific works and their creator who's work sparked many of my questions. This artist's work is ALL over the net. Not just on FAA/Pixels and ALL of the POD competitors, but also in ALL of the major online retail outlets. I thought this person must be spending night and day managing this stuff constantly, as it's in so many places. Then, I found that the same pieces are ALSO on Amazon, Target, Best Buy, Overstock, the list goes on and on. This artist's work is being moved and fulfilled in dozens of revenue streams and they're mostly handled by a single wholesale internet clearing house.

I'm certain that all of this work must be free and clear to sell, or it would not be so vastly available in every online outlet known to man.

This artist focuses on general, universal themes, and a generic style that is easily reproduced and reconfigured for a multitude of different familiar and popular themes. Genius! And it appears that the work is selling well and regularly in all venues cited. The pricing isn't consistent, but it's mostly low budget volume sales.

I'd think THIS is the way to go in this market, but I'd also have to wonder if there are so many fingers in the pie, that the artist is ultimately left with mostly crumbs when it's all said and done? Or, is this the way it's really done by those who "get it"? Though, I'm not sure if it's even fruitful to be asking this question here since according to Abbie and Sean, none of the artists who're actually selling volume and would know the answers to this, are ever in the discussion group anyway. ;)

I've already contacted the same wholesale clearing house to get more info and see if possibly I might have something within my 1700 plus images that might perform decently with a similar approach.

It's clear to me that trying to do this all by yourself, spamming all your social networking feeds with desperate pleas to buy your work, and hounding all your friends, family and colleagues, tweaking and refining google ad-words until you're blue in the face, etc. is a dead-end fool's errand if your goal is something that you can comfortably live off of. If your goal is to just do your art work for the love of art and sell a few here and there for fun and vanity, that's another story. Nothing wrong with that at all, and I'm jealous of those who to do that and don't have to earn a real living. But, if you want a comfortable, real livelihood earned from your artistic creations, the spamming of all your social networks and handing out business cards, panhandling at art fairs, etc. is NOT likely ever going to get you to any substantial level of real financial success.

Just a short interjection, Skip, - thanks Skip, problem solved..................carry on.

Hey Vivian, saw your original message just before going to bed and wasn't sure what you were asking. Now I'm curious. Message me :)

In my last couple of posts, and in Menaga's link in particular, it's clear that legally, there are likely many illegal infractions going on here at FAA/Pixels with regard to the blatant use of trademarked sports and product logos, as well as likenesses and paintings based on famous photos of celebrites. I'm not sure how some get away with it legally, but it's not my problem at this point. I wouldn't use anything like that, unless it was something I'd purchased from a stock agency that officially gave me the legal right to reuse and resell commercially, and were also standing behind any potential legal action against me.

I'm not sure sure if the FAA/Pixels disclaimer itself really exonerates them completely, but I have to assume that they've had a bonified attorney go over all this to make sure they can't be hit with legal suits against them. Again, doesn't effect me so I really don't care.

The one artist who's selling far and wide as I mentioned, has some Marilyn images and Kurt Cobain images (among other celebrities too) they are recognizable as such but the images are also available on all of the POD sites there are, including all of the major retail outlets. The artist doesn't appear to be a big enough entity to have purchased the rights to mass reproduce and resell images of these celebrity likeness's from their estates, so there must be some allowance for one-off POD applications, or the "free speech" angle that Lance mentioned. I have no idea, but unless I think of someone I know who's an actual copyright attorney and will fill me in, there's no way I'd personally take that risk. None of my business if FAA/Pixels and other artists want to potentially hang themselves out like that.

So, all I'm really after now, are good public domain sites that other's recommend for good/safe source. I've googled quite a few but it's tough weeding through all the lying scoundrels who're misrepresenting their sites as "official public domain" sites, that are really not officially that kind of site at all.

Ok, this is what I think is going on with regard to at least some of the vector-art, cityscape, map, celebrity art stuff that's sold here on FAA/Pixel's and on many other sites and outlets. There are loads of good clip art collections from many of the stock agencies and independent sites. Most of them from various sources look identical to each other, they're just sold at different rates from various venues.

You can buy these from outlets with extended licenses from some of the largest outlets like iStock that grant you a legal guarantee as well. Most of the standard licenses do not allow for commercial redistribution on any resold products like mugs, cell phone cases, print-on-demand, etc. but the extended licenses do. How they police that, I haven't a clue, because there's so much of it out there that's nearly identical or actually are the exact same files, that it must be impossible to track all of it to verify who has indeed purchased the appropriate licensing rights I imagine.

I think larger entities buy the rights to sell/redistribute the vector art and/or some photos of iconic celebrities, then resell those rights in extended licenses. So, someone in fact, at some point has paid the estates or rights holder a fee for the right to redistribute and/or sell extended licenses.

With regard to the celebrity likenesses that you are using as source for your own work, and NOT using a photo or illustration of the celebrity that IS copyright protected, then this response from an copyright attorney is informative:

"As always with all legal issues, the answer is it depends. Your paintings are copyrightable and you absolutely have the right to sell them. The question then becomes, what is your liability if you do sell them? Is a celebrity going to come after you for violating their right of publicity?

It depends on how you sell your paintings. If you are selling in a private sale to a private buyer, then the chances of a celebrity coming after you are slim to none. However, if you ramp up and are making copies and trying to sell mass market, that might get some attention and greatly increase the chance that a celebrity or a rights holder will come after you.

However, artists have a First Amendment right to express themselves, and in the recent Tiger Woods case, the court found that the artist’s First Amendment rights were more important than Tiger Woods’ right of publicity. You can read the case and compare your facts against the ones in the case and perhaps get an idea of where you stand.

Rights of publicity are protected under state law. Not all states have them, although most do. The scope of protection varies from state to state, and you should check the laws in your state.

My answer is for information purposes only, it is not legal advice, and no attorney-client relationship has been formed."

• • •

With regard to the use of company logos and trademarked sports logos, I think that's particularly iffy. The names themselves aren't copyrightable, but the logos are copyright and trademark protected. You can't use those for resale without permission or buying the right to do so.

However, with the example of the artist here selling prints of paintings using sports logos, she's actually painting a ball cap that happens to have the logo on it. So, it's not actually selling the logo alone, but a painting of the ball cap itself. She might actually be able to get away with that without buying the licensing rights or getting official consent. It's likely included in the “Fair Use” provision.

Menega I don't consider prints mass marketed if they are offered one at a time on POD. The limit a judge put in one case was said to be 100 copies and that is fairly arbitrary. I am not going to look for that reference, but that is the only definition I have heard of as regarding art. That's where the "mass market" exception to the fine art exception came from. The article you linked makes it seem even more complicated than it is. California recognizes the exception for fine art because of Freedom of Speech. That's all I need to know unless I am cutting a deal for mass market. Sure there are some prints that sell over a hundred but in reality who ever sold a hundred in a day beyond cards? So if you don't offer cards and limit you sales to less than a hundred I would feel safe to say you are not mass marketing here. You are just an artist selling prints one at a time via POD. Cut a deal with a distributor to make a hundred prints and that is mass market.

As to what is fine art is you can pick your definition. If you have any credentials as an artist and can show fine art is your intent no one is going to be able to dispute that what you produce and sell is fine art.

@skip....

Library of Congress has millions of [ very high resolution ] public domain images for your use. Each image has a statement for usage.. whether it is fully public domain, or if there are still some "cloudy" issues with family or ownership.

Most you could just down and sell as if you wanted to. Or process in anyway you want.

http://loc.gov/pictures/

Maps.. you want Maps.. ;O)
they have collections here....

http://loc.gov/maps/collections/

bob

Oh.. and I assume you know that any photo taken by a government employee [ for the government ] is also public domain... that goes for all those NASA photos.. [ there are some limits about the actual NASA logo though ]

bob

Thanks for these links Bob. I have never used other "free" images, but looked into it after reading this discussion. Some I found stated OK for commercial use, no attribution required but must not be used as a stand alone image. Can someone explain what that means. If a person runs it through a "paint" program, crops it a little or adds a texture but keep the compostion the same is that still using it as stand alone?

I've had the same concerns as Skip.

I'm not going to rehash all the preceding posts, but I will point out a few things that haven't been mentioned.

The difference, in legal circles, between works of art and commercial reproductions is whether the items are limited in availability or unlimited.

An original painting or sculpture, by nature, is one of a kind, even if the artists makes multiple versions, as long as they're made by the artists hand, each is a different work.

Castings, etchings, silkscreens, lithographs and similar forms of reproduction have been considered works of art because they tend to be self limiting. As molds and plates are used they eventually wear out naturally, limiting the edition.

Photomechanical reproduction, whether by chemical printing or digital printer is unlimited and the pieces are not considered works of art for legal purposes unless the artist places a legally binding restriction on the quantity to be reproduced. There are differing opinions on what the maximum quantity can be, but the highest codified in US law is set by the IRS at 200 pieces, used in determining values for a charitable gift.

One thing that I do find disturbing is the number of people here using images downloaded from the Library of Congress site which describes them as being for personal, educational and non-commercial use only.

Interesting discussion! I have myself asked some of the same questions as Skip.

When I'm doing some research it's almost always way more complicated than I thought. Regarding the Library of Congress I found this (regarding the use of their maps):

"Rights & Access
The maps in the Map Collections materials were either published prior to 1922, produced by the United States government, or both (see catalogue records that accompany each map for information regarding date of publication and source). The Library of Congress is providing access to these materials for educational and research purposes and is not aware of any U.S. copyright protection (see Title 17 of the United States Code) or any other restrictions in the Map Collection materials.

Note that the written permission of the copyright owners and/or other rights holders (such as publicity and/or privacy rights) is required for distribution, reproduction, or other use of protected items beyond that allowed by fair use or other statutory exemptions. Responsibility for making an independent legal assessment of an item and securing any necessary permissions ultimately rests with persons desiring to use the item.

Credit Line: Library of Congress, Geography and Map Division.

Rights assessment is your responsibility."

I honestly don't know if I would have the courage to sell those maps here. On the other side there are tons of this maps for sale here...

Thanks for the links Bob!!! My inquiry is complete :)

And thanks for all the great additional info offered. Great thread with lots of useful info I think.

Interestingly I've just had 2 of my images removed from another site (the gift site starting with Za.....) for the following reason:

"Design contains an image or text that may infringe on intellectual property rights.
We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims. "

Both photos were taken by me around 30 years ago and they contain no text (apart from numbers) but they are both Boeing Stearman bi-planes. I'm wondering if it's because I have used the name Boeing in the description and keywords. I'm waiting to hear back from the company for a more detailed explanation.
Would this be a problem of the FAA site?
This is one of the images