Welcome to the PleinAir Podcast with Eric Rhoads. In this episode Eric interviews Sam P. Israel, art attorney and managing partner of Sam P. Israel P.C.
Eric and Sam discuss how to protect your rights as an artist, how to control how your work is used, make sure that others aren’t commercially exploiting your work, and much more – you don’t want to miss it.
Listen as Sam P. Israel shares the following:
• Ways to prevent others from stealing your work and selling it
• Common and recent examples of infringement
• Basic things you can do up front to protect your art
• What to know about consignment agreements and your rights when you paint a commissioned piece
• Information on licensing agreements, dealer agreements, forgeries, using stock photos as reference photos for paintings
• The social media site you might want to steer from if you don’t want your work misused
Bonus: This week’s PleinAir Podcast includes a Marketing Minute!
Eric Rhoads, author of Make More Money Selling Your Art, explains:
• How much art education you might want to consider if you want to make a living as an artist
• Input on hiring an agent or representative to help you sell your art
Listen to the PleinAir Podcast with Eric Rhoads and Sam P. Israel here:
Related Links Mentioned in this episode:
– Samuel P. Israel: https://spi-pc.com/
– Ask your art marketing questions: [email protected]
– Plein Air Convention & Expo: https://pleinairconvention.com/
– Publisher’s Invitational: https://publishersinvitational.com/
– Plein Air Salon: https://pleinairsalon.com/
FULL TRANSCRIPT of PleinAir Podcast 157:
DISCLAIMER: The following is the output of a transcription from an audio recording of the PleinAir Podcast. Although the transcription is mostly correct, in some cases it is slightly inaccurate due to the recording and/or software transcription.
Eric Rhoads 00:00
This is episode number 157. You have to listen today we’re featuring a name you don’t know. Sam P. Israel. He is a copyright attorney with a specialty in copyrights for artists and you need to hear every word. This could save you.
This is the pleinair podcast with Eric Rhodes, publisher and founder of plein air magazine. In the pleinair podcast we cover the world of outdoor painting called plein air. The French coined the term which means open air or outdoors. The French pronounce it plenn air. Others say plein air. No matter how you say it. There was a huge movement of artists around the world who are going outdoors to paint and this show is about that movement. Now, here’s your host, author, publisher and painter, Eric Rhoads.
Eric Rhoads 01:08
Thank you Jim kipping. And welcome to the pleinair podcast. My name is Eric and it’s hard to believe we’re coming up on the months End. Time sure flies. Next thing you know, it’s going to be ay and we’re going to be at the plein air convention and that time will happen in a flash. So you got to make sure you get those seats. Come to the convention. We got an incredible lineup. We’ve got a beautiful Colorado painting, it’s going to be incredible, but really, there’s not much left in terms of seats. So get them I’m not I’m not playing games here. I’m not creating false scarcity. I mean, we have had the biggest most successful convention sales we’ve ever had, and we’re just about out so go to plan our convention calm for those seats. I’ve got my big 10 year anniversary event coming up the Publishers Invitational in the Adirondacks 10th year it’s kind of fun. We’re going to celebrate people are coming back who’ve come over the years and of course a lot of new people coming. It’s the Adirondack Mountains in upstate New York. It’s absolutely beautiful. A lot of people come from all parts of the country and we’ve had people from California even and people from Russia. Even though it’s back east in the East Coast, that’s kind of upstate New York, near the near the border, to Canada. That’s just beautiful mountainous and waterfalls and we just go out and have a good time and paint every day and food’s good and companies fun. We sit up at night and we paint portraits and we paint all day outdoors and these beautiful locations we each end up with, I don’t know 14 1518 paintings at the end of the week and some people more Terrell Gable who comes every year she probably ends up with 30. Anyway, she’s she’s an animal, she gets out at five o’clock in the morning. But the rest of us kind of sleep in have fun, get up at breakfast and you don’t have to do anything is show up the Therefore you just paint all day. It’s a lot of fun. It’s the Publishers Invitational in the Adirondacks. You can learn more at publishersInvitational com. Coming up after the interview, I’m going to be answering art marketing questions in the marketing minute. Let’s get right to our interview. You’re going to love hearing this. This is about copyrights with the attorney. His name is Sam P. Israel. Sam Israel, welcome to the pleinair podcast.
Sam P. Israel 03:26
Thanks for having me.
Eric Rhoads 03:27
We’re glad to have you. I think this is going to be a unique podcast. You know, most of the time we’re interviewing artists, sometimes art historians, but the issue of copyrights and protecting one’s rights as an artist comes up so much. I thought it’d be really unique to do something with this and, and my understanding is that you’re the expert, is that correct?
Sam P. Israel 03:55
I don’t know that. I wouldn’t call myself the expert, but I am among people who know about The field and know about certainly know quite a bit about trademark and copyright law as it relates to the arts.
Eric Rhoads 04:08
Excellent. Well, why don’t we Why don’t we jump into it? Can you just for the sake of our listeners, and tell them, tell them what you do and give them a little bit of background about how you got involved in, in copyright work and trademarks for artists?
Sam P. Israel 04:26
Sure. I’ve been practicing for about 35 years I have a small firm, five lawyers and I myself, I’m an artist, visual artist, and I have always gravitated toward the arts. I studied art in in college and I went to the Art Students League, etc. And I naturally found it very, very. I’m sorry, let me turn it up. sounded very suitable to, to learn more about copyright and trademark as it relates to what I do and what others that I am friends with do and have provided assistance to artists over the years who have been in all kinds of quandaries regarding the ownership rights that they have with their artwork.
Eric Rhoads 05:23
Excellent. So before we go into that, who did you study with at Art Students League and what kind of work do you do?
Sam P. Israel 05:32
I studied with poem Antonio, Anthony Palumbo, and I do representational painting, and I do a lot of collage work. And yeah, I think that that’s the majority of the work that I do.
Eric Rhoads 05:51
Well, I think, you know, as artists are sometimes just trusting people who don’t understand what they do. So I think that’s A real advantage that you have is that you, you know what they go through, you know their world because you’re you’re living in that world as well.
Sam P. Israel 06:09
Eric Rhoads 06:10
So what are the what are the biggest issues that you think we need to discuss that artists face?
Sam P. Israel 06:21
Well, there’s a number of issues that that I’m seeing, most recently that relate to the visual Rights Act of 1990. And the Copyright Act, in terms of how artists can control the destiny, how artists can control how their work is used, and when it shouldn’t be used. And they both both those areas arise under the those two acts. And one of the things we see, for instance, is artists, making sure That they work is treated appropriately, they get proper accreditation and that other people don’t commercially exploit their work. And within that range of, of entitlements. We see all kinds of disputes. I should mention that mostly what I do is litigation. I occasionally advise artists on things like you know, when they have dealer agreements and what which go into the agreements and things like that. But primarily they bring me on when there’s a suit, a Windows dispute as to rights.
Eric Rhoads 07:41
Well, I think that i think that’s even better because you’re the guy that that has to defend it in court. And so you, you can tell them what works and what doesn’t work and we’ll, we’ll talk about dealer agreements too, but you know, I was walking down the walking through a shopping mall one time and there was a gallery it was with a friend of mine. And we looked through the window and I said, hey, there’s some of your paintings in there. He says, No, I’m not in that gallery. And I said, Yeah, er, and we walked in. And so he kind of played dumb. And he said, Tell me about that artist and, and the dealer said, Oh, he’s telling him all about him and telling a story and so on. And he said, Where did you get those paintings? And he says, Well, I have a source, right? And he says, Well, I am the artist. That’s Those are my paintings, and you’re not authorized to use them and, and the dealer. Actually, I was with him. And he actually was shocked. He says, Well come with me. I got them out of this catalog is hi buys these paintings from China. There’s a big thick catalog, it must have had 5000 paintings in it. He said, I just go in here and I, I pick them in there. They actually paint them and send them to me. And so he said, Well, these are things that I’ve put online that they’ve copied. So how do you prevent that kind of a thing? Or can you?
Sam P. Israel 08:58
you can to the extent that You could go after the person who’s selling it as a contributory infringer. Of course going after the people who are making this stuff in China is a thankless job. But anyone who’s selling something that’s copyrighted in the US is going to be susceptible to liability for selling something that is infringing. So you could go after the dealer to saying, hey, you don’t have the rights to do this. And if they don’t accept that and cease and desist what they’re doing and pay you, what you’re entitled pay you something reasonable for what you’ve done and what they’ve sold. Then you can file suit against them. And we China, it’s a little bit more difficult. There’s no extra territorial reach of the Copyright Act. And there’s really practically nothing you can do to stop what they’re doing in China unfortunately, which is an ongoing problem and is to a lot of people’s disappointment.
Eric Rhoads 10:08
Well, I think, yeah, I think at least you have some action. And if dealers, if you could find out dealers that were using things out of these catalogs that you could start going after all of them really and the whole idea would be to shut down the the people who are selling these things. And chances are, it’s a US distributor.
Sam P. Israel 10:27
You could do that. And if there is a US distributor, you could go after the US distributor, again, all for contributory infringement, you could get an injunction stopping them from doing what they’re doing. There’s a number of things you can do, as long as there’s the US contact.
Eric Rhoads 10:46
Now, in terms of the kinds of infringements that you seem to see a lot of, maybe maybe it’s this Chinese kind of a thing, but what other kinds of things do you see that that are happening a lot to artists
Sam P. Israel 11:01
Well, I see you know, most recently, we’ve been getting involved in some cases with graffiti artists whose work has been appropriated for advertisements and for all kinds of mixed media phenomenon without giving credit to the media, the graffiti artists who have a right on the era of the visual arts right act to accreditation, and to be able to claim that it’s their work, and for that matter under the, under the Copyright Act, also. And it seems to be that people think that if it’s, if it’s graffiti, it’s up for grabs, because it’s in a public space. And in point of fact, it’s not. And that seems to be like the most recent phenomenon. The area with the law has kind of developed the most recently, but you see it in all kinds of situations copyrighted enjoyment from somebody just, you know, cloning an image from a painting, reproducing it and not giving any royalty or not giving any any compensation to the creator of the work who owns the copyright. So it’s a pretty pervasive phenomenon.
Eric Rhoads 12:20
Yeah, actually, we, we surprisingly see it quite a bit in terms of artists will see something they like online and they’ll copy it and then claim it’s their own or sometimes they’ll enter it into an art competition. We also see a lot of artists who are lifting antique images things that may be out of copyright may not be and and copying those and claiming them as their own. Right. So, in terms of what an artist can do, or should do up front, what are the basic things that You know, what, should I put a copyright symbol? Should I put all rights reserved? Should you know what should I put on the front and the back of my paintings as a starting point?
Sam P. Israel 13:10
Well, the first thing you should do is you should register with the Copyright Office, your artwork. And the reason you do that by making a reproduction of it and filing with the copyright office. And the reason you do that is because if somebody infringes your work, if you do that after its prerequisite to go after them to file a copyright infringement suit, that the work be registered. Now, if you register the work before it gets infringed, you’d be entitled to recover something called statutory damages, which could conceivably be much greater than actual damages, actual damages being what was achieved by the sale of the of the infringing work. So it would always make sense to register your work with the copyright office. It’s not a difficult process. It’s It’s very simple. Simple, and it’s not expensive. And in some instances, it is a, you know, a lot of work. You can do it in in math by bundling the work together, categorizing it as a certain type of work and filing it in as a group. But my advice is to always register with the Copyright Office, any of you work.
Eric Rhoads 14:23
So I complete a painting. take a photograph of that painting, and then go online to the copyright office and fill out a form, give them 10 bucks or whatever they require. And then that right that accomplishes it.
Sam P. Israel 14:40
It does. All artists should do that as a matter of course, especially if they have plans to commercially exploited if they plan on licensing it or doing anything with it, other than just selling the painting. It makes sense to protect it that way. Because kids, the more it gets out there, the more likely it is that somebody’s going to illicitly exploited. So, more power to you, if you register the copyright in advance.
Eric Rhoads 15:11
Well, and I think, you know, a lot of times people will pay things and not necessarily have a commercial intent. And then later down the road, they start getting a little success. And next thing, you know, they’ve got a lot of work out there in the marketplace. If, if if I sell a painting to somebody, and let’s say that that person who bought my painting decides they want to do reproductions of my painting and sell posters of it or something. They don’t have that right.
Sam P. Israel 15:43
Right, No, of course not. So the only way they would have that right is if you gave it to them if you had an agreement with them, which specifically conveyed that right or if it was a work for hire. In other words, if somebody paid you to do the painting, It was clear PR a work for hire agreement that you were doing this for them and you surrendered all of your rights and entitlements visa v the painting sure that they can’t do it.
Eric Rhoads 16:11
So if I’ve done a somebody commissioned me to do a painting a landscape painting, and I do it for them, they then because they paid me for that they automatically have that right or do I still have to transfer that? Right?
Sam P. Israel 16:29
You still have to have an agreement. Okay, you have to have an agreement that makes clear that it’s a work for hire.
Eric Rhoads 16:35
Okay, so and so and this is a pretty common issue, this this idea of, of people commissioning paintings and so you is there. Is there something you could do to prevent that just automatically would that be not having an agreement and just putting a statement on the back of the painting or do you have to have an agreement in every case
Sam P. Israel 16:58
i’m in favor of clarity. So what I would do is I would make clear with the person I’m doing this for that, by the way, this is not a work for hire, I’m doing this painting for you, you’ll have you’ll own the physical painting, you’ll be able to display the painting, but any rights to reproduce the painting are still with me. And to make that clear, and that can be the subject of an agreement. Granted, you need to have a work for hire agreement to assume the rights that I’m talking about. But I think it’s best to be ultra clear upfront and make it plain that rights of reproduction still remain with the Creator with the artist.
Eric Rhoads 17:42
Now, I see a lot of artists who are doing a lot of different things. Some artists will put their signature on the front you can’t read the signature. As matter of fact, I have a friend who they discovered a painting recently and they can’t read the signature and they don’t know who paint There’s nothing on the back it I have another friend who always puts a circle see and his signature. Is there a proper way that we should be signing our paintings? And is there something specific that we should be putting on the back for instance on mine? I put copyright the year. All Rights Reserved copyright. I think the order I put it is copyright 2020 20 the Eric Rhoads All rights reserved, that’s how I do it. I don’t know if I’m doing it right.
Sam P. Israel 18:34
Well, you’re doing bells and suspenders, what you’re doing is right. It’s the maximum way to protect yourself. Most people don’t do that or don’t do anywhere near that. But it can’t hurt you to do that. You making very plain that you you retain the copyright, and who it is that retains the copyright. So I would encourage you to continue to do that.
Eric Rhoads 18:58
Is there a better way
Sam P. Israel 19:03
The best way to do it would be if you’re, when you are at the point of sale, to have an agreement with the person you’re selling it to, or even displaying it with, that it’s clear in the agreement that you’re retaining the copyright. And then that person you’re selling or showing it with doesn’t have any rights towards reproducing the work. So if it’s a dealer you have in your dealership agreement, that you’re not conveying any rights to reproduce the work and you’re retaining the copyright.
Eric Rhoads 19:39
All right now, you can grant you you couldn’t agree with it, say, I suppose, except for use of the images on the on your on the website, but they need to be a certain point. Okay, and let’s talk about dealer agreements. I I know Lots of artists who have gallery relationships, they, they have no dealer agreements whatsoever. And I have I’ve heard horror stories of artists who a gallery went bankrupt their work. They never recovered their work because the, you know, the bankruptcy court. This assumed that the gallery owned it. What what should be in a dealer agreement and artists dealer agreement?
Sam P. Israel 20:29
Well, for one thing, what you’re saying means that somebody didn’t do what they should have done, because the fact of the matter is, is always in agreement, even if it’s not written, there’s an understanding between the parties as to who owns the work and when it comes back to the owner. So it may not have even been recorded, but it’s hard to imagine that somebody would give their work to somebody and say, hey, it’s yours. Do what you want with it is usually some kind of understanding. That you’re going to display this, but I’m still going to own it. If you sell it, I’ll get a percentage of the sale as will you. And that’s the way this thing works. But to the extent that that isn’t said to some reason, it always makes sense to have a writing. And the writing should make clear what the percentage that will be achieved by the seller, the potential the percentage that’s retained, and that in the event that there is no sale, that ownership still vests would be with the Creator. those points should be made very clear. I should add, though, that dealers who work on a consignment basis, have a fiduciary duty to the artist, which means to say that they are obliged to get the best price to not do anything that would compromise the rights that the artist has, and to return the painting in the event that there is no sale. Now all the time it that it doesn’t happen lots of the time, which is why we see so much litigation, the majority of the litigation that you see in the art world is litigation over consignment agreements that have run, you know, have run afoul of what the with the can be, what the gallerist obligations are is. So, the more you have a crystal clear agreement, saying that you retain the ownership and you retain the rights and what the percentages are and that the rights and that the painting reverts back to the owner more power to you.
Eric Rhoads 22:38
And, and should there be some kind of a statement in there about in the event of, you know, the company going under or closing down or going into bankruptcy, you know, the notification needs to occur and paintings need to be returned or at their expense it how do you deal with those
Sam P. Israel 23:01
What you need to do is just make sure that it’s clear that you own the painting. So that if there is a bankruptcy filing, it’s not property of the estate. That’s the big concern. So if you have an agreement that acknowledges that ownership of the painting still vests with the creator of the paid thing, then you won’t have a problem with this at bankruptcy, because it won’t be property of the state, you’ll be entitled to get your painting back. That’s very important.
Eric Rhoads 23:31
So, you know, sometimes I hear stories, horror stories of, of, of artists violating agreements with galleries. And, and sometimes the, the agreements are, you know, written sometimes are unwritten. But I remember going into a gallery in I think it was Tucson and the man was taking off taking paintings off the wall and I said, What are you doing here? He says, Well, I had this artist who was in here and I’m I fired her and I said why? And he said, Well, a guy came in, tried to negotiate a price on the painting. He didn’t like it. So he left he contacted the artist direct, bought it for less money, and then foolishly called me and said, you know, hey, screw you, I was able to buy it direct from the artists. So we fired the artist. And, and, you know, one of the one of the issues that we constantly hear about are, you know, at what point is, you know, does that agreement work? The opposite way, you know, is is this an agreement of you promise not to sell direct to our customers for, you know, for the period of time we represent you kind of a thing is that pretty standard approach.
Sam P. Israel 24:45
It is a standard approach, and the artist shouldn’t have done what the artists did. If it’s an exclusive agreement. Sometimes consignment agreements aren’t exclusive. So you could have a deal where I’m going to show my artwork through you And if you sell it, then you get this percentage and I get, you know, this percentage. On the other hand, if you don’t sell it, you get nothing. And it’s understood that it’s not exclusive. It all depends upon what the agreement is. The case you’re describing it sounds like it was an exclusive agreement and the artists just went around the dealer and screwed the dealer, in which case he was bad and I can understand the dealer being aggrieved by it.
Eric Rhoads 25:33
I had a situation one time I believe that if a dealer generates a lead a customer that I should honor that dealer with with some benefit for bringing that customer to me, so I was in a show at a at a gallery in Annapolis. And you know, the show sold a couple of paintings and then I had posted some all my paintings. On Instagram. And then you know, three months after the show, this person contacted me and said, Hey, I bought one of your paintings at the show, I’d like to buy this painting that you have on Instagram and I ended up parlaying that into selling two or three more, I turned around and contacted the gallery and said, You know, I wouldn’t have this customer if it weren’t for you. So, I’m sending you a commission. And they were really happy about that. But is, is there a, is there a kind of a standard on that or is again, that just boils down to what the agreement is with the customer. So if, if a lead is generated or customer comes to you direct, or if a customer comes to you, you know, after you’ve left the gallery, it I guess it all boils down to what you put in writing what the agreement is.
Sam P. Israel 26:51
That’s what it boils down to. And sometimes it’s not uncommon for dealers to acquire rights to an artist. This entire catalog, they’ll just be an exclusive dealer. And anything the artist sells, they’ll get a percentage of regardless of how they found out about the art, whether it was a listing online or otherwise. But if it’s like many cases where it’s just, I have these rights visa v did the work that I’m that I’m showing, then what you would have done would have been, it would have been on the very generous side, let’s put it that way. Because I wouldn’t have expected that, that you would have given a percentage based upon sales online if it wasn’t directly from the show. Again, it’s a contractual matter. It depends upon what the understanding is. And it depends upon whether this exclusive right to these IBV artists.
Eric Rhoads 27:50
You know, I know you’re not an estate guy. And so this question may or may not be something you can touch on but I really I remember hearing a story of an artist who had had accumulated a lot of work. And that work the IRS came in basically upon his death, put a valuation on that work based on the previous sales and then his family got socked with a big tax bill because they now own all this artwork. Any thoughts on that?
Sam P. Israel 28:27
It happens quite a bit. I have a case right now with with artwork that’s worth 10s of millions of dollars. And were struggling we’ve had to deal with it to cut a deal with the IRS on the on the artwork which was left by a will. And it’s very tricky stuff and I’m not as you pointed out, I’m not an expert in this area, but I am aware of it being a being a serious problem. It can be a serious problem.
Eric Rhoads 29:02
I think IRS law allows you to, there’s a certain amount of gifting you can do every year. So I think some artists will gift some of these paintings to their children or something every year just to just to kind of get them out of the studio. I mean, you know, the nightmare is we have thousands or hundreds of paintings in our studios, that some of them we don’t expect to ever see the light of day because they were studies or they were things that we would never even consider selling. And yet, someone who does not necessarily know the industry comes in and assumes because you sold all these other paintings for $4,000, that these are all worth $4,000.
Sam P. Israel 29:41
Right. The best thing to do is to put them in a trust, and I can’t give any expertise, any expert you know, explanation of how it works, but I can tell you that it just as a general proposition, to put the work into Frost may be able to na enable you to get over the gift, the the inheritance tax. If you put it in the trust into somebody staying with their kind of a putative or a or a equitable owner of the artwork, you might be able to avoid the estate tax. But you need to talk this but who’s ever listening needs to talk to an estate person to get books I already have that.
Eric Rhoads 30:29
You know, one of the things that we’re all doing is we’re we’re posting things on social media all the time. You know, it’s kind of, hey, look at me, here’s my progress. Here’s my finished painting. Most of the things I see don’t have any watermarks, don’t have any copyright statements. You know, you hear stories of people seeing things and copying from Instagram. Is there anything that you recommend at all So, you know, you see these things that people post on Facebook that said, you know, you hear these rumors that Facebook is has has rights to all the images that are posted and you know, people go through certain things to try and prevent that. Any advice in this area
Sam P. Israel 31:19
you have to be very careful for instance with flicker, which is another area where a lot of artists post stuff me included, you surrender certain rights when you put stuff up on flicker, for instance, they have the right to reproduce your artwork and sell it sell posters and things without giving you anything in exchange, and you have to read the fine print. And again, it always makes sense to to copyright the work beforehand, but it depends upon what the individual service provider has in their contracted whether they can kind of pillage European Actual property without paying for it.
Eric Rhoads 32:02
I had one happened to me on flicker. So I had, I had put a picture of me and a buddy up on flicker from a cocktail party. And one day I got a call from somebody in my family and they said, hey, you’re on the front page of the paper here. And I said, what they said, Yeah, here’s the link to the story. And there was a story about sugar daddies. And because it was a picture of me and my, you know, mid 50s, and a buddy of mine in his mid 50s, they pulled that off a flicker. So I called the newspaper and I said, What’s the story here? You’re using my my image? They said, Yeah, we got it off the flicker. It’s copyright free. And they were generous enough to to pull it from the online story that they said we don’t really have to.
Sam P. Israel 32:51
It’s true. Yeah, it’s true. I put stuff on Flickr to just because it’s convenient and I want to get my work out there. But it’s not the most prudent thing to do to the extent that I plan on making money off any of the any of the artwork, because you do give them a license to resell it.
Eric Rhoads 33:13
So let’s talk about licensing because you mentioned that earlier. For the artists who are listening who might not know what this is, you can take images of your artwork and license those to other people to sell those images. So, friend of mine, Charles white, for instance, he’s on coffee cups and mouse pads and calendars and jigsaw puzzles and you know, he uses a publishing company out of Minneapolis who publishes his work, and you know, he’s making some some money on it and you know, he has a agreement and it’s it’s all very beautiful. But you know, once in a while, I think some things end up published probably by unscrupulous firms without any permission. What what should be in publishing agreements? Pretty much the same things.
Sam P. Israel 34:06
Yeah, the publishing agreements, you have to make clear what the limits to which things can be published. And you have to make sure what your entitlements are for reproduction of your work, and how it how the it can’t be sublight sub licensing agreement said third, which give your rights away, which sounds like maybe the case in the circumstances you’re talking about. And if you do that, you do it carefully. It should not happen. If it does happen, then you’ve got a claim for copyright infringement.
Eric Rhoads 34:46
So, what about forgeries?
Sam P. Israel 34:53
What about them?
Eric Rhoads 34:54
Well, I guess the forgeries is that is the issue that we talked about earlier. Like the Chinese forgeries and so on. But I didn’t know if there was anything else that needs to be added to that discussion about, you know how to anything to prevent forgeries other than, than what we talked about.
Sam P. Israel 35:13
You have additional claims in the case of forgery, third arising from trade dress, and false designation of origin under the Lanham Act. So you have the protection that you’ve got ordinarily under the Copyright Act, and then the Vera, but you also have protection under the Lanham Act. When somebody is attributing work to somebody else, you didn’t create the work, or if it’s a forgery, and it’s attributed to the right person, but it isn’t their work. It just looks kind of like they work. Again, you have claims under the Lanham Act, the Copyright Act and then the Vera
Eric Rhoads 35:56
Now, one thing I see it occasion. And sometimes it’s innocent. Sometimes it’s not, is you know, I was in an art class and the the art instructor said, hey, go go find a picture online of a beautiful place, and I’ll teach you how to paint it. The The problem with that is, of course, I suppose if you’re using it for learning and you never show it or never publish it, that’s one thing, but talk about the idea of taking images off of stock photo sites or just generally offline and using them to create paintings. What are the issues that an artist faces there?
Sam P. Israel 36:36
Well, you’ve got copyright issues. If you take enough stock photo sites, unless you meet their requirements, like stock photo sites have a minimal amount that you pay to use their stock photos. And as long as you pay that amount, then you should be fine. If it’s not a stock photo, and it’s somebody’s property, you run into issues of rights. publicity, and you run into issues of potential copyright infringement, because this is copyright in the designs of places in the architecture of places and reproducing, that is not reproducing buildings, for instance is not free from peril. But the two different issues, the stock photos and copying something that that, you know, sitting structure for instance, they involve different. They both, they both were down to copyright, but one of them is a safe way to do it, namely Woodstock photos, because they just asked for nominal fee. And if you’re copying somebody’s building, then you should get permission to do that.
Eric Rhoads 37:54
You know, there’s a there’s a tree in Carmel, you’re probably familiar with this. There’s Famous tree that kind of is the trademark of Carmel. And it technically speaking, it’s illegal to photograph that tree and to publish it. And painters who have painted it and then sold have been sued by the city of Carmel who owns the rights to it. So even sometimes there’s, there’s a landscape that you could be copying that you can’t use.
Sam P. Israel 38:27
It doesn’t surprise me. It doesn’t surprise me. I could see that too. So I know we get a lot of cases we get a lot of cases though, where it’s not landscape but where its architecture and where somebody copied a building, for instance, and it was deemed to be copyright infringement or at least it was claimed to be copyright infringement and that’s not one comment.
Eric Rhoads 38:53
So if if I’m standing on the street, I find a really beautiful little house and I’m standing out on the street, not on their property, and I decided I’m going to paint a picture of that house. Could that that homeowner, if they had the house copyrighted come after me, or could they come after me anyway?
Sam P. Israel 39:15
The person who created the house could come after you. And it’s unclear whether that person will have conveyed the copyright to the house, to the owner of the house. But ultimately, the person who created the house could conceivably come after you for copyright infringement.
Eric Rhoads 39:32
Now case like that probably…
Sam P. Israel 39:34
But if you’re not going to sell it is not going to sell it. And you’re not going to commercially exploited the chances of somebody doing that. pretty slim. I’m giving you an extreme example. Let’s say you you you painted somebody’s house, and you sold a million copies of it and it became kind of like a soul Steinberg thing, where it was on the cover of New York Magazine. It was reproduced thousand times, then I can see there would be a problem. But it’s unlikely that if you just do your own painting of a house and sell it to somebody else, that somebody’s going to come after you for copyright infringement.
Eric Rhoads 40:13
Probably a general rule is is just always if you can’t ask permission, right?
Sam P. Israel 40:19
Eric Rhoads 40:21
All right. Are there. Are there other issues that we should be bringing up or talking about that we haven’t brought up yet?
Sam P. Israel 40:29
Not that I’m aware of. I think we’ve done a pretty good job of covering the the map in terms of current issues with with artists and concerns.
Eric Rhoads 40:40
All right. Well, this has been excellent. I think that it’s a an action packed few minutes of really a lot of valuable data. If people were interested in contacting you, how would they how would they find you?
Sam P. Israel 40:55
My name is Sam p Israel. And you can look me up online. It’s easier to remember to put the “P “in the middle because there’s other Sam Israel so Sam P. Israel and you’d find my phone number and and feel free to call me.
Eric Rhoads 41:10
All right and and then you’ll you if somebody wants to do artists agreements with you or I mean gallery agreements or licensing agreements or anything else you’re the guy to go to
Sam P. Israel 41:22
I could do all that stuff, no problem.
Eric Rhoads 41:25
Okay, well, this is very helpful, Sam and it’s a pleasure meeting you today and thank you for being on the pleinair podcast.
Sam P. Israel 41:33
Thank you for having me. It’s been a pleasure.
Eric Rhoads 41:36
Well, thanks again to Mr. Israel for this fascinating information on copyrights and contracts and everything else. Put that stuff to work and of course, check him out or find somebody who can help you with that stuff. Shall we do some marketing ideas?
This is the marketing minute with Eric Rhoads, author of the number one Amazon bestseller make more money selling your art proven techniques to turn your passion into profit.
Eric Rhoads 42:03
In the marketing minute I try to answer your art marketing questions produced by you send them to me, Eric, at artmarketing.com. Here’s a question from Jim in Bowling Green, Kentucky, which is a really pretty place. Jim says I’d like to grow more as an artist but I’m I’m 22 years old and I’m unsure if I need to complete an actual degree. How much art education should I get? Well, Jim, I’ll probably get in trouble here, your parents and your school and colleges around the country, you’re going to call me and yell at me. But quite frankly, I don’t think to make a living as an artist to a degree really matters. What matters is that you’re a good artist, or better yet a great artist and I would put your time and attention to becoming a great artist. If you need a school to help you do that, which most people do, then do it and the degrees is really about teaching if you need to be a teacher in a public institution, a high school or college, you probably need that degree, probably want to get an MFA. So that is, you know, the reason to get a degree and you might want to do that. So you can fall back on that just in cases manufacturers haven’t discussion with a friend last night and he was talking about how he doesn’t have his degree and he can’t get teaching jobs in certain schools. And he’d like to so maybe it would have been a good idea to do that. You know, if I were going to get a degree and yeah, I was going to make my living as an artist, I get a degree in sales and marketing, learn everything you can about advertising and marketing and sales and everything to do with that. And then you know, go to a great art school at attilio a, like Grand Central Academy or studio and common audio in Philadelphia or the Florence Academy in New York or Florence or other places. Become a great draftsperson a great artist, a great painter. And you will flourish. I mean, the people that goes those schools end up you know, they’re, they’re the best of the best. And they end up with great careers because they’re so good. You know, nothing will overcome sales and marketing problems like being a really great artist. So think about that. Next question comes from Linda in Milwaukee, Wisconsin. You have to say Milwaukee, right? I think so. Linda says, Is there such a thing as having a sales rep or an agent for my art to help me market and sell my paintings? I feel like I could use some help and would prefer to hire professional. Where do I start? Well, you know, the thing is, Linda, lots of us who are artists don’t have that skill set. We don’t want to learn that skill set. But you know, there are sacrifices if you bring somebody else in, you’re going to have to pay them, pay them one way or the other. There are reps or agents in all the arts in Hollywood, you have to have an agent to succeed and not so much in the art. world but there are many, many, many agents who do an awesome job. You’re going to have to Google them or ask around, find out, talk to some galleries, find out which agents they like dealing with. And they in theory will help you build your career, build your brand, make awareness, get you into places to sell your work, maybe help get licensing deals is a lot of things. They’re worth their weight in gold. And you’re going to pay to have them do this for you. You know, I don’t know what, what they charge, but most agents are probably like 10%. And they’re going to make you successful. And someday you’re going to be making a lot of money and you’re going to go, Oh, why am I paying this 10% I don’t need them anymore. Well, keep keep in mind that they made your career they built you. And so you want to honor them by sticking with them. But anyway, that’s part of your income. And that’s part of what’s going to make you successful. If you’re not the time to type a person, quite frankly, I think if you’re listening to things about marketing, and you’re studying marketing, yes, you can do all this stuff yourself. Somebody who’s a pro somebody do is does do is it, somebody who does it every day, like myself, you know, I’m not an agent. And I’ve had lots of people ask me to be their agent, and I’m not going there. But I do marketing every day. And so my head is in marketing, if you get your head into marketing 20% of your time, you know, first off, agents aren’t going to mess with somebody who’s not up to the level that is going to make it easy for them to sell they want. They want artists who are going to be really good artists, that galleries are going to want artists that are going to make it easy for them. So you know, you might not be at that level yet. And if you’re not, and you want to make a living and have to do it yourself or get you know your spouse, or partner or friend or somebody to do it for you. So you’ve got to master marketing and quite frankly, I like to be in control of my own career. I never want to put anybody in charge of my career. Even if you have an agent, you need to understand what they’re doing and understand the principles of marketing because if you don’t, you might get ticketed adage of if there’s some sleazy person out there who is it doesn’t have any ethics. So think about that. Anyway, I hope this helps. This has been the marketing minute.
This has been the marketing minute with Eric Rhoads. You can learn more at artmarketing.com
Eric Rhoads 47:15
Don’t forget to book your convention seat at the plein air convention. At pleinairconvention.com and also check out my Adirondack June publishers Invitational event, publishersInvitational.com. If you’ve not seen my blog, where I talked about life and art and philosophy and stuff, check it out. It’s called Sunday coffee. You can subscribe free at coffeewitheric.com it’s always fun doing this spending time with you. Thank you for spending time with me. Let’s do it next week. And I’ll see you then My name is Eric Rhoads. I’m the publisher and the founder of plenn air magazine and a bunch of other things like the plein air convention and the plein salon. You get the idea. Lots of things anyway, remember, it’s a big world out there. Go paid it. I will see you next week. Goodbye.
This has been the pleinair podcast with Plein Air magazine’s Eric Rhoads. You can help spread the word about plein air painting by sharing this podcast with your friends. And you can leave a review or subscribe on iTunes. So it comes to you every week. And you can even reach Eric by email [email protected] Be sure to pick up our free ebook 240 plein air painting tips by some of America’s top painters. It’s free at pleinairtips.com. Tune in next week for more great interviews. Thanks for listening.
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