What makes for an exciting day in the world of Wind-up Dreams & Vinyl Nightmares?
Easy! Sneak peek images from some of my favorite artists arriving in my email like a tidy bundle of visual satisfaction. And when I really, really like the art (and the artists in question happen to be friends of mine), it is with great excitement that I hurry to my keyboard to write up a quick hey-you’ve-gotta-see-this blog post.
Hey! You’ve gotta see this!
This coming weekend will see the opening of two exhibits, on opposite sides of the country, featuring Latvian artist Jana Brike; one of which includes some amazing new collaborative work with Austin-based artist Dan Barry.
Jana Brike at Distinction
The pool of the moment at the edge of the world — Jana Brike
First up, opening this Saturday night at Distinction Gallery in Escondido, is Songs of Purity, a solo show featuring a broad collection of fantastic new paintings and drawings, including the amazing oil on the right, which I saw live and in person a couple of weekends back at Art Walk.
The show opened to the public yesterday afternoon and will be further celebrated this coming Saturday night, May 11th, with an opening reception from 6 to 10 PM. Count me in on the attendees!
Jana Brike and Dan Barry at Pulse Contemporary Art Fair
And if one Jana Brike exhibition isn’t enough (or, if you are east coast, rather than west coast, biased) you have a second opportunity to check out her work, this time at the Pulse Contemporary Art Fair in New York. Over the past couple of years Jana has been collaborating with my good friend Dan Barry on a series of intimate mixed media pieces, created with graphite and colored pencil on found notebook paper. With Dan living in Texas, and Jana operating from Latvia, this has been a true long distance effort, with creative exchanges spanning the globe, and work emerging from lengthy drawing sessions as the two artists have crossed paths at art events here and overseas.
And what happens when two artists, whose work — on the surface — would not seem to share similar styles and techniques — get together to produce singular works of creativity?
Really cool stuff!!
The work Dan and Jana have created is emblematic of their individual styles, yet works seamlessly as a cohesive narrative. It’s really strong work and definitely worth checking out!
Jana and Dan’s work will be on display in Stephen Romano’s booth at Pulse, which opens today (yes, today!) and runs through Sunday May 12th at the Metropolitan Pavilion at 125 West 18th street in New York.
It should come as no surprise to anyone familiar with my art that I like record albums. I’ve been collecting records since my earliest days of college and they became a natural fit when I began taking photographs of cool things like records, books and toys. I’ve always had it in the back of my mind that one of my many “someday” projects would be a set of limited edition prints packaged in a real album cover. How cool would that be?!?!
(No, sorry, no such print set is being announced in this post. But… someday!)
Future plans aside, I recently did have the opportunity to create my own record album cover, and it came out great! So today I’m sharing my experience in a “how to” tutorial for others who may be so inspired to create their own record album packaging.
The Background
Years ago, I sent out an elaborate Christmas card package, which I dubbed, “It’s a Copyright Infringement Christmas!” The package included an 8 1/2 x 11″ card and a 110 minute cassette mix tape of the coolest Christmas music imaginable — Detroit Junior, James Brown, various Motown greats, etc. I printed all the cassette labels and inserts on a (rare, for the time) color printer, and filled the envelopes with glitter, broken cassette shells, and tangles of audio tape pulled from the destroyed cassettes. The star, though, was the music, as everyone loved the selections I made (said the former college disc jockey with much modesty).
As the years have passed, with cassette players giving way to CD players and iTunes, fewer and fewer people have been able to listen to their hand-picked Christmas collection, but EVERY year since I’ve been encouraged by family and friends to make a new version. “If you ever copy Copyright Infringement Christmas to CD,” they would hopefully plead, “you’ll never have to give me another thing!”
Promising rewards aside, dubbing the collection to CD has always been something I’ve wanted to do, but year after year the project has been pushed way, way off onto a back burner without the time to do the project right — whatever that meant, as I had no idea how I could better the original package by just dumping the music onto CD.
I then realized that I’d made the original tape in 1992, and 2012 would be the 20th anniversary, so…
I did it!
Where the original had filled both sides of a 110 minute cassette — 55 minutes per side — in the CD era I’d be able to fit 80 minutes of music per disc. Bonus tracks could be at play!
CDs? Dude. No one uses CDs. It’s all about streaming and downloads.
Well, yes, I thought about producing the 2012 version of my illegal Christmas compilation on a USB flash drive, but:
A couple of the recipients (most notably, my parents) don’t use iTunes, iPhones or iPods, and would not know an MP3 from a hole in the ground.
Handing someone a flash drive and saying “Merry Christmas” seemed like a hollow offering.
My plan, then, was to produce a set of 4 CDs. The first two would reproduce the 55 minute A and B sides of the original cassette, while the last two would be loaded to the digital gills with newly discovered (and equally cool) bonus tracks. The discs would be packaged inside an LP-size album jacket, with the CDs mounted on a full color cardboard insert. Rounding out the package would be a limited edition Christmas-themed print suited to the copyright infringing nature of the music.
Got it? Good! Let’s go to work!
Geography of an album cover
In order to design my album cover I first had to figure out how an album cover is constructed. Those of us who grew up around records have the basics: an LP is about 12″ in diameter and fits into a square cardboard sleeve that’s a little bit large. Easy! Take two pictures, glue ‘em together, and — voila! — album cover!
Not so fast!
Careful attention to how an album cover is actually laid out and constructed will provide a guideline for generating a design template that can be used for applying art to the front and back covers, as well as the spine you’ll see on the edge when the album is stored on a shelf. Using this template, the cover can be printed on a single sheet of paper, then cut, folded and glued to produce the final sleeve.
Template of an album cover
The template for designing an album cover is shown above. Note that the image to appear on the front of the cover is on the right, while the back cover image is on the left. Designed in this manner, if you were facing the album in a sales bin, the spine would be on the left and the record (or in my case, CD tray) would slide out from the right. Virtually all album covers are designed in this way to be consistent and prevent dust from sifting down into the record jacket.
Note
On occasion you’ll see variations on this design, with the jacket opening on the top, or the position of the front and back covers swapped. Usually, these are design mistakes that are sometimes corrected in later pressings of an LP.
The dimensions you see above are as follows:
The front and back covers are typically 12 ¾” tall and wide.
The top and bottom tabs you see on the back cover are folded over and affixed to the reverse side of the front cover. I chose to use 1″ high tabs, which seemed like a good size to get a good firm seal between the two covers.
Plus… the spine. Read on!
Does a record album have to have a spine? Well, no, not really. Vinyl records aren’t very thick and a 12″ LP will usually fit fairly easily into a simple spine-less (ha, ha ha) 12 ¾” sleeve. But that would be boring! After all, don’t we want to see the sideways title of our album when it sits on a shelf squeezed between other records? Sure we do!
Spine detail
So, between the front and back covers we also need to provide a bit of space for the spine, and the spine needs to be wide enough to accommodate whatever we plan to put inside the jacket. For an album that holds a single vinyl LP, the spine is usually 1/8″, varying slightly higher when the packaging also includes a booklet or other inserts. For my project the album needed to hold a CD tray, a limited edition print, and a very thin sheet of protective bubble wrap. I estimated that a spine of 3/16″ would be sufficient.
The image above and to the right is a detail of the spine measurements for my album cover. It is important to understand that an album cover is actually a box construction. So, if we provide a 3/16″ spine running up and down between the front and back covers, we must also provide a 3/16″ margin between the cover and the tabs, effectively forming the “sides” of the box we’re going to construct. The spine and the top margin are illustrated in the diagram.
Color note!
It’s worth noting that I chose to color the tabs dark gray, even though they were to be glued to the reverse side of the front cover. I used the color change as a visual clue when folding the tabs, and the dark gray color was close enough to the margin color (which in turn matched the front color) so as not to be visually distracting if the construction of the “box” was not precise.
Software note!
I used iDraw on my iMac to layout and design the cover you see above. Nice piece of software!
Printing the cover
Once the cover art had been designed it was time to print. Recall that we’re going to be printing everything — front, back, spine, margins and tabs — on a single sheet of paper. How big does that paper need to be? Adding up all the dimensions…
20 x 30″ prints on Kodak Endura photographic paper
Okay, the total dimensions of a flattened album cover are roughly 15 x 26″, and that means we need to print on a big 20 x 30″ sheet of paper — 16 x 30″ if that odd size is offered by your favorite lab. While I suppose it would have been most preferable to print on lightweight cardboard to mimic the stiffness of commercial record jackets, I didn’t have that option, so instead decided to print my covers as 20 x 30″ glossy enlargements through my regular lab, myphotopipe.com on professional grade Kodak Endura paper.
Whoa! 20 x 30″ photo prints? Isn’t that, uh, kind of expensive?
Yes, it is. Making your own album covers is fun and amazing, but definitely not cheap!
Constructing the record album
Once the prints arrived (and after a few days of allowing them to lay flat), I used an X-acto knife and metal L-square to trim away the excess paper, as illustrated in the photo below.
Trimmed cover ready to be folded
On the right is the spine and the front cover, while the back cover, tabs, and top/bottom margins are on the left. Constructing the record album was then simply a matter of making the proper folds and gluing the tabs in place. I found it helpful to make my folds in a set order, with the printed side of the paper face down, and using the edge of the L-square as a sturdy guide to insure that the creases would be straight and square. In all, you’ll need to make 6 sharp, square folds:
Left edge of the front cover where it meets the right side of the spine.
Left edge of the spine where it meets the right edge of the back cover.
Bottom edge of the top tab where it meets the top edge of the top margin.
Bottom edge of the top margin where it meets the top of the back cover.
Top edge of the bottom tab where it meets the bottom edge of the bottom margin.
Top edge of the bottom margin where it meets the bottom of the back cover.
Photo paper is not generally meant to be folded, so — with a ruler or square edge in place along the crease line — go slow, and gently ease the paper up against the edge of your ruler or square edge, using pressure where you want the crease to form. Once a crease is in place along the entire width of where you want to make the fold, remove the straight edge, fold along the crease, and gradually apply pressure until you have a firm, sharp fold that is able to stand up on its own. Remember — photo paper will fight back!
After folds have been made
Belated trimming tip!
Note in the photo above that the tabs, which were originally designed to be square, have been tapered slightly. This extra bit of trimming is done to allow greater flexibility while gluing, and will prevent any excess paper from from sticking out beyond the edge of the cover.
Ready to be glued!
All that remains is to glue the front cover onto the folded tabs. I used rubber cement for this job, as it doesn’t bubble, provides a good solid bond, and is very forgiving and easily removed should you “over glue.” The tricky part of gluing the tabs is that the tabs are actually inside the cover and sit suspended in air at a height equal to the width of the spine. Yes, this is only an eighth of an inch (or, three 16ths, in my case), but still enough space to prevent a solid seal — especially at the edges — between the tabs and the cover. To workaround this problem I found magazines of the appropriate thickness that could be placed inside the cover and beneath the folded tabs to provide a solid surface upon which the cover and tabs could be glued with sufficient pressure. The magazines also made it easier to “square up” the corners where the cover, spine and top/bottom margins all meet. Once the glue had been applied, and leaving the magazines in place, books were used to weigh down the construction until the rubber cement had completely set.
This past week I had the great pleasure of seeing Yoshimi Battles The Pink Robots — a musical version of the concept album from The Flaming Lips — now playing at the La Jolla Playhouse. Rumors of a musical had circulated for years, so I was pretty excited when the announcement for the show came sometime last year; more so when I discovered it would be playing in my own backyard, and would be directed by Des McAnuff who has put on an impressive list of on-to-Broadway shows that originated at the Playhouse (where there’s not a bad seat in the building).
Being a fan of the Flaming Lips and the original 2002 album I was expecting an audio and visual treat, and I was definitely not disappointed! Even before the show began, as the near capacity crowd began filling the seats, you sensed that this performances was going to be a bit different than most. Maybe not dancing-animals and Wayne-in-a-space-bubble different, but surely a step up from a straightforward telling of, say, West Side Story. For starters, the entire stage was bordered by a wall-to-wall and floor-to-ceiling “portal”, as if the audience was inside a spaceship watching the story unfold somewhere out in the cosmos. As the audience slowly made their way to their seats the portal was black, dotted by twinkling stars, and a three dimensional globe of the Earth slowly spinning in space — part of the well-synchronized visual effects that drive much of the performance.
Once the globe floated away and the performance began… yes! It was the music of the Flaming Lips in all its weird, spellbinding grandeur, mixing songs from Yoshimi as well as tracks from 2006′s At War With The Mystics. The arrangements stayed very true to the originals, and I thought the cast did a great job taking on the lyrics of Lips vocalist of Wayne Coyne. Though, during the intermission I overheard one patron sharing her confused concerns with another person, “Is it me, or is the male lead really messing up his vocals?” She was referring to Paul Nolan, who was intentionally adapting his vocal delivery to better match the way Wayne sings. And Wayne, for all the character and depth he brings to the Flaming Lips songs, is not your typical pitch-perfect, belt-it-out-like-you’re-Liza vocalist. I thought this choice worked very well for the music and story.
And what of that story? Okay, so Yoshimi is caught in a biotech battle of antibodies and lymphoma, with the pink robots being metaphor for her battle with “bad cells.” In parallel there is a bit of a love triangle that too easily resolves itself, and some humor involving Yoshimi’s family. But the story is really tertiary to the music and visuals — which are amazing!!
Pink robots zoom around the stage, Yoshimi (spunkily played by Kimiko Glenn) flips and flies, video flashes, planets float, and music thunderously crashes down upon every scene. So cool! My favorite character was the giant illuminated robot you see to the left, whose movements are precisely animated by several unseen puppeteers wearing black. Considering that the robot doesn’t speak and really doesn’t have a face, the work of the puppeteers and lighting crew to give this behemoth emotional gravitas was truly astonishing.
While I loved the play, so much so that I’d really like to see it again, I have to be honest. If you are looking for the perfect gift to get your grandparents for Christmas (after all, aren’t tickets to a musical usually a pretty safe bet for grannie and gramps?), Yoshimi might just confuse them a little.
Huh? What are all those pink things? Why are words appearing up in the sky when that guy punched his finger into his palm? I don’t get it. Why don’t they play any nice songs like Oklahoma?
However, if your grandparents (or anyone you know) like to be challenged by imaginative music and fantastic visuals… Yoshimi is just the thing!
Yoshimi Battles The Pink Robots plays through December 16th at the La Jolla Playhouse and is well worth seeing! Catch it now, or wait for it to (hopefully) make its way to Broadway.
Hot off the digital camera presses, I have a brand new photo and accompanying video to share! And since this piece has been in development for longer than I care to mention (though I will in a moment) I won’t waste any more time with a lot of buildup and hyperbole. So, here it is!
Sensible family planning is dreamt away to the 1950s by Esmeralda — Femme Fatale of Conservative Values
So, yes, I began this piece way back in late July (yes, July), and finally wrapped up work on the photo and video in early November. That’s over three months for those of you keeping score at home. The initial work of setting up the pieces and iterating over the composition took about a month, interrupted here and there by other ongoing projects and setting up my new shop on Zazzle. I shot the final set of photos and a couple of hundred frames of animation over Labor Day weekend. Then… my dad broke his hip, I ran into censorship problems on Zazzle, opened my Fair Use store, and finallygot back to the photo in mid October.
Early concept shot in July
To the right is an early concept shot built around a vintage record player, as if the woman in the background was placing records onto the turntable. This version also filled the space to the left and right of the album cover with pulp paperbacks. As you can see looking back at the final image, both concepts were abandoned as I moved towards the finished composition (but I’m sure the pulps will show up in future photos).
The record player proved too bulky and limiting for the composition I had in mind, so it was quickly replaced by stacks of vinyl records and alphabet blocks to form the basic stage. With the records in place I had room to build five connected scenes: one in the center, and two each to the left and right atop the surface of stacks of 45s. It then became a matter of establishing the action for each scene through the placement of various characters — a process that took a couple of weeks as I wandered my way through lots of combinations of characters and story concepts. Though, to be honest, I never truly understood what the photo was about until after it was actually complete! That’s how things sometimes work in my weirdly, disconnected, make-believe world.
Fresh out of the camera — unadjusted!
To the left is the final composition as it emerged from my camera, warts and all, prior to all the post-production image adjustments you see in the final image at the top of this post. As previously mentioned, I’d decided to eliminate the paperbacks, and instead wanted the entire background to have the same mauve-ishly textured background found on the album cover. Of course, I didn’t actually have any kind of mauve-ishly textured background material handy, so I hoped, uh, planned on cloning pieces of the album’s background behind all the other figures you see on the left and right. To make this task a little easier, I placed a couple of additional albums and sheets of pink poster board inside the light tent behind the stage construction. This actually proved to be a mistake for reasons I won’t get into, but art is forever a learning experience, and I was able to work around my blunder.
The final image was actually constructed from 6 separately shot photographs using the “focus stacking” technique I wrote about in a previous post. This time around each photo was shot at a different aperture setting so that the depth of field would vary from shot to shot. I then assembled the final image by masking the in-focus portions of each photo, and layering them all together in a big digital sandwich to create one image with everything in reasonably sharp focus.
The video is another of my simple pan’n'scan slideshow with the camera seeming to zoom around the staging as figures magically materialize into view. Oooooo! It’s a fun and simple technique that’s not nearly as tedious as true stop-motion animation. This time around I chose an instrumental piece of music from Tuatara that nicely captured the drama and tension I wished to convey in the photograph.
Have I settled my ongoing dispute with Zazzle, Elvis, The Beatles and kewpie dolls over alleged copyright infringements? Nope, and those issues currently remain with Zazzle apparently ignoring lawful requests to reinstate the materials they had so unceremoniously removed from their site. That disagreement aside…
I’m very pleased to announce the Wind-up Dreams & Vinyl Nightmares Shop! Yes, our creative little elves have been hard at work cobbling together a candy-colored smorgasbord of amazingly cool products to make your life pretty damn FANTASTIC! (No one has ever accused me of understated hyperbole.)
The new shop is live on Zazzle—
What??! Huh?!?!? I thought they were evil and took down your products?
Yes, they did take down a total of 20 products, which I previously detailed in a couple of prior posts, and those products remain in Merchandising Limbo. But that has not deterred our team of marketing masters from stocking the store with dozens of super cool Wind-up Dreams products! You’ll find everything from mouse pads to laptop sleeves, coffee mugs to messenger bags. Each piece lovingly crafted with your favorite images. So what are you waiting for?!?!?! Check it out!!
Mugs! Mouse pads! Cases for iPhone and sleeves for iPads! We have bags and notepads, clocks and coasters, and even a couple sets of playing cards and desktop speakers.
New products will be coming regularly, and I’m more than open for suggestions if you don’t find exactly what you’re looking for.
Remember — the holidays are upon us! And don’t your favorite people deserve a little bit of Wind-up Dreams & Vinyl Nightmares in their lives?
And, don’t forget, the I Support FAIR USE store is still going strong, selling t-shirts, mugs and bags to call attention to censorship in the arts!
I hope you enjoyed my first installment on Copyright Confusion and Fair Use, and the saga that has been unfolding as I attempt to make my artwork available on custom bags, mouse pads and other fun print-on-demand products sold by Zazzle.com. Thanks for coming back!
Today I’ll be continuing the story with lots of information about your rights as an artist. We’ll also talk about copyright and discuss what websites such as Zazzle can and can’t do with regard to your content. Yes, we’re going to toss around some legal stuff, but legal stuff is oh-so-much-more-fun when it revolves around pro golfers, prima donna rock stars, and raunch novelty rap acts, wouldn’t you agree?
So read on, and at the end of this article I’ll have pointers for how you can join in my crusade to support FAIR USE through a new blog, a Facebook page, and — yes! — through self-censored, “copyright friendly” versions of my Wind-up Dreams & Vinyl Nightmares photos on everything from t-shirts to tote bags.
Oh yeah, disclaimer! I’m not a lawyer, neither professionally or in any amateur capacity. Still, I hope you find the information informative, enlightening, and entertaining.
Fair Use — when copyrights are not exclusive
What bothered me about Zazzle’s claim is that the appearance of an Elvis matchbook in my photo is protected by Fair Use, defined in the Copyright Act of 1976 as an exception to copyright law allowing the use of copyrighted material in transformative ways. It’s what allowed Duchamp to put a mustache on the Mona Lisa and Warhol to silk screen photographs of celebrities. Fair use has many tentacles in the art world, some valid (Barbie in a blender!), others not no much (the US Postal Service taking a photo of a sculpture and placing it on a stamp).
Oster Dive — Tom Forsythe, 1997
The Fair Use exception amounts to only 175 words in the law, but—oh!—how those words have been tested and applied to a wide variety of copyright disputes! I don’t mean for this post to be an in-depth debate on what constitutes fair use, so I’ll just focus on a few noted decisions from the courts to illustrate why my photos (and countless other works of art) satisfy the most prevalent arguments for Fair Use.
Campbell v. Acuff-Rose Music, Inc.
Ugh! Legal stuff. ::: yawn ::: Boring!
No, wait, this is cool! In this landmark case the rap group 2 Live Crew was sued by the estate of Roy Orbison over a raunchy parody of Orbison’s song, “Oh, Pretty Woman.” The case went all the way to the Supreme Court with 2 Live Crew insisting that their version of the song was protected by Fair Use. The Court ruled in favor of the band and, in their summary judgement, had much to say about the transformative nature of Fair Use beyond the 175 words that define the law.
The issue, in the opinion of the Supreme Court, was whether the infringing work “merely supersedes” the original or, instead, “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”
Getting back to the Elvis matchbooks…
Given the Supreme Court’s opinion, had my art focused on only the matchbook, uploading to Zazzle the face of Elvis to be placed on my own set of commemorative plates, my use would clearly not be protected by Fair Use. I’d just be copying (i.e. “merely superseding”) the original, and I’d be in violation of the copyright held by Elvis Presley Enterprises. But that’s not what I did in my photo.
In Backstage Pass, the image of Elvis is merely one element within a complex conceptual narrative. In other words, quoting from the Stanford University Copyright and Fair Use Website in offering their interpretation of the Supreme Court’s ruling, ”…the material has been used to help create something new.” There. Fair use.
Back to Zazzle
In the days following the rejection of products designed using Backstage Pass, I received dozens of additional rejection emails covering a total of 10 of my original photos—all judged by Zazzle’s content review team as having violated the copyrights of others.
The characters found to be in violation?
Elvis
The Beatles
Kewpies (yes, kewpies!)
I defy any website, court, law student, or scholar to determine that the placement of a pink kewpie head on the body of a plastic bride, with Leonardo Da Vinci and Grover Cleveland looking on, is not a valid example of fair use.
Kewpies play a particular and recurring role in my work, to the extent that individual kewpies (red, green, pink or yellow) add very specific symbolism and character to a given photograph. Likewise, the “Beatle” figures I use in many photos (actually, manufactured in Asia during the mid 1960′s and sold as “The Swingers Music Set”) are not intended to be a literal recasting of John, Paul, George, and Ringo. Like the kewpies, the presence of these blue-suited figures is symbolic, contributing to the conceptual arc of a given photo through their facial expressions and placement within a given composition.
As before, the product designs I’d submitted were completely removed from my Zazzle account and I was left with no discourse but to write to Zazzle’s content review team for clarification. Over the course of several emails I presented a case for the consideration of Fair Use, citing copyright legislation, cornerstone papers on the transformative aspect of determining fair use, and pointing to case law that supports the rights of artists to use copyrighted material in the creation of new work. Unfortunately, in their brief replies, Zazzle ignored the legal arguments, falling back on their “acceptable content guides” and making statements such as:
Unfortunately, celebrity names and/or likeness (sic) may not be used for commercial resale on Zazzle.com without permission from the celebrity, their legal representative or their estate.
And:
The issue is not with you creating the art of Elvis, the issue is Zazzle selling the artwork images. Zazzle has been contacted by Elvis Presley Enterprises and they have submitted a DMCA notice. In accordance to following the notice, Zazzle cannot carry any images of Elvis Presley.
Oh really? Unfortunately, that’s not what the law says, and Zazzle may, in fact, be suppressing the rights of artists who wish to post and sell products created under the protection of Fair Use. Or, perhaps, they’re simply making a business decision to err on the side of caution and choose to ignore Fair Use as a valid form of artistic expression (note how the issue is deflected in the second response above). I can’t say, as recent emails asking such questions have gone unanswered; as have requests for a copy of the takedown notice Zazzle claims to have received from Elvis Presley Enterprises in reaction to the posting of products containing my Backstage Pass photo.
In any case, let’s take a look at their claim that “celebrity names and/or likeness may not be used for commercial resale on Zazzle.com without permission….”
Hey! What about Elvis’ right to his own face!
It makes sense that a celebrity or public figure would have the right to control how their image is used and marketed. In fact, they do! Under the Lanham Act; a broad piece of legislation that protects trademarks and establishes the “right of publicity,” the use of an individual’s name or likeness is protected from being used in a manner that would imply some unwanted affiliation. In other words, in a world without the Lanham act businesses would be free to Photoshop anyone they liked— Lady Gaga! Peyton Manning! Oprah! —into their advertisements without consequence.
Taken alone, the Lanham Act would seem to support Zazzle’s claim that images of celebrities can’t be used without permission. Ah, but the law is complicated, and the “right of publicity” is not incontrovertible. In fact, it is superseded by… you guessed it, Fair Use!
Let’s take another look at some case law (and I promise it won’t be dry, boring, or filled with Latin terms).
ETW Corporation v. Jireh Publishing, Inc.
Sounds like two big businesses butting heads, doesn’t it? Well, in this case ETW Corporation is the exclusive licensing agent for golfing great Tiger Woods, who sued artist Rick Rush over a painting Rush had created following Woods’ victory in the 1997 Masters tournament.
Attorneys for Tiger Woods argued that Rush did not have the right to use the image of their client in his 1998 painting, The Masters of Augusta (left), claiming Woods’ “right of publicity” under the Lanham Act.
Bzzzzt! Wrong answer.
The judges in the case ruled that the right of publicity is limited by the principles of Fair Use, and—where Rush may have lost the case if his painting was a straightforward portrait of Tiger Woods—the work was transformative in the sense that the image of Woods had been incorporated into a much more complex composition that included other Masters victors and elements of design that put Woods likeness in historical context.
Victory, Fair Use!
So, given the precedence of the decision above, to what degree can Zazzle claim that designs incorporating a celebrity likeness (like Elvis on a matchbook cover) are unacceptable, without also considering the protections offered by Fair Use?
Is Elvis just a bully?
To read Zazzle’s response to my email inquiries, one might assume that their corporate hands were tied, locked in a legal full nelson by the ghost of Elvis Presley, and bound by the stone tablet orders of the DMCA to “not carry any images of Elvis!” Convenient though that belief may be, the law around Fair Use and the Digital Millennium Copyright Act (DMCA) counters such absolute restrictions. In fact, copyright holders must consider Fair Use before instructing a website to remove material from their site; there’s really no such thing as a blanket “take down all things Elvis” order.
I’m going to sneak in one last legal case, because it reinforces my argument and—yet again—is mildly entertaining. This one comes from YouTube and it’s known officially as Lenz v. Universal Music, a case where the plaintiff saw a 29 second video of her toddler jumping around to “Let’s Go Crazy” by Prince removed from the video website. Lenz countered that the use of the song (distorted and in the background) was Fair Use. Though YouTube eventually reinstated the video, Lenz took Universal to court on the basis that they had incorrectly interpreted the DMCA by not considering Fair Use in issuing their takedown notice. Universal countered the counter by releasing a statement that their intent was to rid the internet of all user generated Prince-related content, simply as a matter of moral principle. This was a particularly bad idea and became an issue in the suit, as Lenz argued that Universal was abusing the DMCA by issuing blanket takedown notices rather than considering alleged infringements on a case-by-case basis. Lenz won her case, and the court ruled that copyright holders must consider Fair Use before requesting that a website remove material uploaded by their users.
The DMCA actually protects websites such as Zazzle from liability when files posted to their servers are found to infringe on copyrighted material. True! It’s “safe harbor” legislation that takes legal responsibility off the shoulders of the middle man (in this case, Zazzle) and moves most of the liability and burden of enforcement to the uploader and copyright holder—provided that the middle man follow a few very simple procedures:
Notify users when their material has been down.
We took down your file because
we’ve been told it infringes on someone else’s copyright.
Provide users with an opportunity to challenge the removal of materials.
If you think we made a mistake, here’s how to contact us with your side of the story
The user can then send in a counter-notice stating why they believe their material does not infringe on another copyright.
My image is protected by Fair Use under the Copyright Act of 1976.
At this point, the website must promptly notify the copyright holder that their copyright is being challenged.
Hey Elvis! One of our users is challenging your claim
that his image violates your copyright.
Here’s what he has to say.
The copyright holder then has 14 days to file suit against the user who posted the disputed material.
Sue! Sue! Sue! Or…
If the copyright holder chooses not to file suit (perhaps agreeing that the use is fair, or simply not wanting to take the matter to court), the website is required to restore the materials that had been removed from their site.
That doesn’t seem so hard, does it? In fact, it’s exactly what other sites do (YouTube, for example, which provides a convenient online dispute form) to fairly manage disagreements between copyright claimants and the users who upload files.
So, no, Elvis is not a bully. I simply question whether he (or The Beatles, or all those adorable kewpies) is being included in the conversion.
Tap, tap, tap… Hello? Is this thing on?
Let’s take a look at how—when it came to Elvis, kewpies, and The Beatles—Zazzle implemented the copyright conflict process outlined by the Digital Millennium Copyright Act:
Notification Check!
Challenge Check!
Counter Check!
Promptly… notify… the copyright… Oh, never mind.
Who knows? At step three I made my claim for Fair Use, and rather than see the process continue to some conclusion that would involve my dispute being provided to Elvis Presley Enterprises, I was told by a representative of Zazzle that there was nothing that they could do; hiding, effectively, behind a very limited interpretation of the Digital Millennium Copyright Act. This is not the way the DMCA is supposed to work and it is certainly not fair to artists and designers who have legitimate claims to publish and profit from the art they have created.
Furthermore, for the two dozen or so product designs that were taken down, Zazzle has followed the first three steps of the dispute process in only one case. Though I have responded to every notification with an email requesting additional information, Zazzle has failed to respond, except (on three occasions) where they simply passed the buck and identified the copyright holders making claims against the art I had uploaded. I’d like to assert my claim of Fair Use for each of the deleted product designs, but this is difficult to do when emails go unanswered.
What now?
As things stand today, a couple of weeks following the initial flurry of product rejections, none of my disputed content has been restored and Zazzle’s content review team has been mum on prior claims of Fair Use. The good news, though, is that no additional products have been rejected, which is a bit maddening, as many of these designs are based on the same images, uploaded the same day, but applied to a different class of product. So, where one image was rejected as a mousepad, it has yet to be flagged for copyright infringement as an iPhone case or a tote bag. Baffling.
Though Zazzle has stonewalled in replying to my requests for more information, my resolve will not be hampered. I plan on issuing formal counter-notices on the grounds of Fair Use for each prior rejection. Tedious, yes, as often the same image was rejected in the design of multiple products. Hopefully, with Fair Use on my side and by working through the process defined by the DMCA, I’ll convince Zazzle’s content management team to follow through (as they are legally required) and notify the copyright holders of the challenges I am within my rights to raise.
In the meantime…
As stated near the beginning of this article, I like Zazzle. I think they make good products and I’d like to see my art featured on a wide range of their products. I yearn for a big, chubby-cheeked kewpie surrounded by buddhas and bathing beauties, cheerfully gazing from the back of my iPhone, but Zazzle tells me that my art infringes on the intellectual property that lives, apparently, in the DNA of a kewpie. And the Beatles. And Elvis. Until otherwise resolved, those figures as persona non grata on a Zazzle product.
And so, with the store I want to open currently in copyright limbo, I’ve decided to open an alternate store filled with “copyright friendly products” meant to bring attention to the case for Fair Use in fine art.
The Beatles? Banished!
Elvis? Erased!
Kewpies? Vaporized pixel by pixel in the merciless purgatory of a JPEG’s alpha channel.
To that end I sharpened my digital editing tools and created censored versions of each of the 10 photos Zazzle had flagged as unacceptable for product designs. Below is the censored version of Backstage pass in the ninth circle of Hell.
Backstage pass in the ninth circle of Hell — censored version
As the Clash once sang in the song 1977:
No Elvis, Beatles, or the Rolling Stones!
The Elvis matchbooks have been whited away; the Beatle bobble heads, removed. (No Rolling Stones in the photo, but you will note a ticket stub from the Clash concert on the right side). In their place, the symbol for copyright, which as far as I know is fair… to use.
The new shop—I Support Fair Use—is now open! Come on by to see the censored versions of my art and maybe buy a mug so you too can support Fair Use while you sip your morning coffee.
And while you’re sipping that copyright friendly cup of morning joe, please visit my new Tumblr blog where I’ll be posting all kinds of example of art that benefits from the protection of Fair Use.
I’d love to hear from other artists to learn how you might have faced and (hopefully) overcome issues related Fair Use. I’ve created a page on Facebook for this very purpose:
Drop by the page, give it a like, share it with all your creative artist friends (and their friends, and their friends’ friends)! Fair use and the creative freedom it affords artists in the expression of their artistic vision is IMPORTANT. Fair Use exists for a reason. It protects the work of countless excellent artists from Ron English to Isabel Samaras, Todd Schorr and Alex Gross, to Jason Freeny and Shepard Fairey. It will continue to protect the work of artists in generations to come, especially as technology and the ability to share and distribute content evolves—but only if we stand firm and defend the rights we as artists are clearly entitled to exercise, as there are no bounds to the imagination, and unjust restrictions to our creativity should not be tolerated.
Envy springs forth from the pious song of man — censored version
Take a look at the photo above. Notice anything unusual? Ha! Rhetorical question! It would appear that this version of my original photo, Envy springs forth from the pious song of man, has undergone the careful hand of a surgeon’s scalpel, carving out objects and replacing them with big fat copyright signs. And that’s pretty much exactly what I’ve done, though using photo editing software to perform this digital photoectomy, as opposed to the gleaming blade of a surgical tool.
Envy springs forth from the pious song of man
So why, exactly, would I decide to censor my own work? Well, in the opinion of the print-on-demand service Zazzle, I don’t have the right to sell products containing my original copyrighted photo (seen to the right) on their website. This photo, along with nine other images, was rejected by Zazzle’s content review team as being “in conflict with one or more of our acceptable content guidelines.”
Each of the past couple of years I’ve released new products around the holidays: a set of collector postcards in 2010, and a deluxe box set of my iPad book in 2011. For 2012 my product plans were far more ambitious, envisioning a veritable gift shop full of Wind-up Dreams & Vinyl Nightmares merchandise. After researching a variety of print-on-demand services, I selected Zazzle, impressed with their wide range of products, their reputation for high quality printing, and the ease with which artists like myself are able to setup storefronts and sell custom products to the 25 million or so people who visit the site each month. Moreover, I was extremely impressed with their hand-sewn laptop bags and sleeves manufactured by Rickshaw Bagworks in San Francisco. These bags are COOL, providing artists the opportunity to use their creativity to layout seam-to-seam, all-over designs, and make these product available for sale on the Zazzle website. Awesome!!
Setting up the Wind-up Dreams & Vinyl Nightmares store
With dozens of my photos to choose from, I began to design products, carefully scaling and laying out images using Zazzle’s helpful templates and online design tools. I made mugs, mouse pads, iPhone cases, laptop sleeves, notebooks, day planners, coin purses, cosmetic bags… even cool little desktop speakers manufactured by OrigAudio. After three or four weeks I had 80 or 90 products waiting in my “virtual stockroom” while I setup my store and made plans to go live with a launch of exclusive merchandise just in time for the online holiday shopping season.
Stocking shelves and getting ready for the Grand Opening!
As you work on the design of a new Zazzle product—say, a mug—it resides in a queue of In-Progress Designs, which is kind of like a little workshop where you can tweak and modify the images and text you want printed until it’s ready for prime time. Once you’re done, you can add it to your shopping cart, submit payment, and your custom printed mug will be shipped directly to you—personalized service with the click of a button.
Custom printing is one way of using Zazzle. Another is setting up a shop and offering your custom designs for sale in Zazzle’s online marketplace. Zazzle does the printing and the shipping, and you as the artist get a royalty (which you set) on each sale. With several dozen product designs now complete, I was ready to begin moving my work from In-Progress to my online Zazzle store (which had been created as “private” until I was ready for launch). The Zazzle mechanism for moving a product into a shop is to click “Post for sale.” There, you give your product a title, write up a description, specify a variety of options, establish your royalty, and add all-important search tags to catch the electronic eye of search engines. All very easy! At the bottom of the page is the following checkbox:
Yes, indeed, I indicated that I do have the right to publish and sell products designed using my photographs, and I didn’t see any reason why I would not agree with Zazzle’s user agreement.
Once posted it may take up to 24 hours for an item to appear in your shop, but the process actually runs much more quickly than that (maybe an hour or two) and Zazzle sends a nice email notifying when the process has completed. Though the “doors” were still closed, I was very excited to begin seeing all of my designs popping up in my little Wind-up Dreams shop!
Then… trouble began.
Sorry, you did not build that!
I posted my initial batch of products for sale on Tuesday and Wednesday, September 25th and 26th. The first sign of trouble began that Friday, September 28, with an email from Zazzle’s Content Review Team that read, in part:
Unfortunately, it appears that your product, Backstage Pass Mug, contains content that is in conflict with one or more of our acceptable content guidelines.
We will be removing this product from the Zazzle Marketplace shortly.
Policy Notes: Your design contains and (sic) image or text that may be in violation of an individual’s rights of celebrity/publicity. This may be due to the actual design of the product, description or search tags that are associated to your product. Please feel free to submit a new design to our Marketplace from original elements.
Backstage pass in the ninth circle of Hell
I was a bit puzzled. The mug I had designed featured the photo to the right, Backstage pass in the ninth circle of Hell, which I staged and photographed in my studio in the fall of 2008. The photo is a commentary on fame, selling out, and the potential consequences of getting what one seeks (e.g. money, fame, access). The piece has appeared in gallery shows, is sold online as a limited edition print, and is included in my book and postcard set.
No sooner had I read this first email that two more arrived—one denying my attempt to place Backstage Pass on a MacBook sleeve, the other restricting the same image on the face of a desktop speaker. Sure enough, upon clicking over to my as-of-yet-unopened Zazzle shop, all three products had been deleted. They hadn’t been moved, as I would have expected, to the In-Progress area of my account where I might be able to figure out what had happened. They were just gone. Poof.
Confused, I wrote to Zazzle requesting more specific information about why my photo had been rejected, and later in the day received a canned, condescendingly apologetic explanation that read in part :
We would love to offer every design that our users submit, however we must abide by all applicable laws and standards as well as our own content guidelines and copyright policies.
Unfortunately, it appears that your products did not meet Zazzle’s Acceptable Content Guidelines. Specifically, your products contained content which infringed upon the intellectual property rights of Elvis Presley Enterprises.
We have been contacted by Elvis Presley Enterprises, and at their request, have removed the product from the Zazzle Marketplace.
Elvis matchbooks in the staging of my photo
I certainly could not deny that the image of Elvis is, in fact, included in my photograph. There he is on three matchbook covers observing the scene backstage with detached reserve and dissatisfaction (essential to the social commentary intended by the piece).
Putting aside, for a moment, Zazzle’s claim that they had been “…contacted by Elvis Presley Enterprises” requesting that my mug design be removed, my concern was with this statement:
…we must abide by all applicable laws and standards
as well as our own content guidelines and copyright policies
Well, in accordance to “all applicable laws and standards,” my photo is completely legal!
How can I be sure of this and what does it mean when it comes to posting images on the web? Tune in tomorrow to read the rest of the story. If you are an artist, a supporter of the arts, or just someone who likes reading unsual legal cases about celebrities (I know you’re out there!), I promise you will not be disappointed.
All but one title complete & this last one is KILLING me! I'm beginning to question whether or not I actually know what this photo is about. 12 hours ago
