Archive for the ‘Photography’ Category

Sweet Feast (1024 x 1024)

Sweet Feast at the House of Pink Delights

I’m very pleased to announce a brand new limited edition print release, Sweet Feast at the House of Pink Delights, added just this morning to my Etsy shop! Featuring dozens of happy little kewpie heads waiting their turn to be boiled up in a delectable stew of ice cream and cake, served table-side to gleeful diners anticipating an unparalleled delicacy of sweetness and joy.

Mmmmm! Mmmmm! Good!

Each image has been professionally printed on heavy weight glossy paper using archival inks to bring out bold, rich blacks, and strong vibrant colors. I could not be more pleased with the quality of each and every print!

Here’s the scoop:

Paper Size:  16 x 20″
Image Size:  8.4 x 18″
Edition Size:  100
Priced at $80 each

Personally, this is one of my all-time favorite pieces, so much so that I use it as the banner for both my Facebook page and Etsy store, so it seemed only natural to finally release it was a signed limited edition print.

More information is available on Etsy, right… here!

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Ready for Part Three of my delinquent 2015 update? Great! To quickly recap Parts One and Two, the first part of the year was spent overhauling my studio with better organization, new lighting and updated camera equipment. Very specifically, I upped the ante in the megapixel race, going from a 10 mp consumer model (Canon XTi) to the “prosumer” 20 mp Canon 70D. So many more pixels! So much more I would be able to capture! More color! More detail! More… dust?

The perils of 20 megapixel still life photography!

Yes, more dust. Bad, evil, OCD triggering dust. Try shooting the surface of vinyl records without capturing a whole lotta dust. In the past, this was only a minor issue for two simple reasons:

  • One, as my scenes had previously been constructed inside a light tent, the tent basically protected the scene from accumulating too much dust. Even if I worked on the composition over several weeks, I could always zip up the light tent and keep everything inside relatively free from an invasion of dust. Not so with the scene constructed on top of a table in the — gasp! — open air.
  • Two, from a distance even the Sahara desert looks like merely a solid patch of earth, but up close… wow, that’s a lot of sand! The same hold true by doubling the number of pixels you capture with your camera.

Yep, where in the past, the vinyl surfaces you see in my photos required only minor retouching for dust and other blemishes, everything was now much more greatly magnified, and what had previously been beyond notice now (in my paranoid eyes) jumped off the screen like a blizzard of distraction! Take a look at this example of a very small portion of my most recent photo, Sybil leaves nothing to Chance, as she prepares for a romantic evening at 21.

Before and after removing 826 specks of dust

Before and after removing 826 specks of dust

At the top is the image before I began removing dust and retouching various other distractions that needed repair. 826 spot repairs later (yes, 826, for an area no larger than, well, a record label) and I was able to mostly sweep the dust out of the scene.

In the “after” image you still notice a little dust present; mostly in the lower left corner and just above the card on the right hand side. Because I create my images from several layered photos, the dust you see here is actually removed in a different photo that overlays those regions present in this example.

One of 36 layers

One of 36 layers

With my most recent photo consisting of 36 separate layers and dust present on a half dozen different vinyl surfaces, I had my work cut out for me. All told… I removed 9,446 specks of dust! Okay, actually, that’s an exaggeration… I made 9,446 retouching strokes, some of which were to repair scuff marks on the album cover or to paint on the plastic figures. I also removed two large reflections from the surface of the crystal ball, but take my word for it — most of this work was removing evil highly magnified specks of dust!

How sweet it is!

In my own self-deprecating way I frequently tell people that I really don’t know how to use my camera. To a large extent, this is true! A technically skilled photographer could probably look at my setup, measure the focal length, measure the light, turn a lot of knobs and flip a lot of switches, then press the shutter button once to capture the best possible photo. That’s not me. I have always set my camera upon the tripod, selected one of the auto-focus point, then click, click, clicked away at every aperture setting from f/9 to f/16. Then I’d move to the next AF point… click, click, click! And so on until I’d exhausted every combination of apertures and AF point (and if you think that’s crazy, I used to do the same thing for three different ISO settings until I finally settled on ISO 100). It was only after all the photos had been shot that I would then wade through this big bag of identical images and pick out those that were each individual object was the sharpest. From those multiple photos I could construct a single composite image with everything in the frame in sharp focus. And like that old cliche of a “doomed future” for those who do not learn from the past, so it was for me, as I would methodically repeat this combinatorial nightmare for every new project even though I knew in my head than every photos taken from f/10 through f/16 would not be quite as sharp as those taken at f/9. Did that stop me? Of course not!

Imagine my delight when I learned that every lens that supports multiple apertures has a “sweet spot” — the aperture setting that will theoretically result in the sharpest images. Hurray! Finally! The decision of which aperture is best had essentially been decided for me!

After doing a little research I discovered that the “sweet spot” for my lens (a Canon EF 17-40mm f/4L USM) is an aperture of f/8, which more or less confirmed the insanity of multiple apertures eventually whittled down to those shot at f/9. So, from now on, f/8 it would be!

One problem…

At magnification, the difference in clarity and depth of field between f/8 and f/9 turned out to be very significant. In the past, at various points in a scene, I could reliably observe a couple of inches of acceptable depth of field at f/9. At f/8 and with the greater level of detail captured with a 20mp camera, the depth of field from one focus point to the next dropped significantly. Often, it seemed (or maybe my eyes were just playing tricks) the discernible depth of field was remarkably shallow; often not more than an inch or so. Hence, I manually focused my way to 36 layers where — from one layer to the next — individual objects could be observed to be juuuuuuust a little sharper than that same object in an adjacent layer.

The result of all this change?

Working with new lighting, a new camera, an entirely new process, and the various challenges that would come with so many more pixels (which we’ll get to in a moment), I’d originally intended to create a “practice” photo so that I could make mistakes, learn, and just get used to all of the changes. Funny thing, though; I actually liked what I was creating, so I ended up spending two months working on the new photo — three weeks in the studio working with all my new equipment, and 5 weeks in post production where I discovered that…

…20 mega pixels is a LOT of information!

Yep! Apart from my aforementioned obsession with dust, 20 megapixel files introduced a variety of new challenges in how I deal with my images in post production.

And here is the final image!

Sybil leaves nothing to Chance, as she prepares for a romantic evening at 21

Sybil leaves nothing to Chance, as she prepares for a romantic evening at 21

Later this week, I’ll finish off this four part update on 2015 with news of the new video that accompanies this photo. Stay tuned!

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In part one of this long overdue update on my creative exploits for 2015, I filled everyone in on the totally mundane effort of cleaning out and reorganizing my studio — a rite of well-meaning passage for pretty much every artist. One would think that a clean well-organized studio would immediately send creative bolts of electricity through an artist and see him or her instantly filled with motivation to create amazing new works of art. In my case, wrong. A clean studio was merely the first step in my 2015 Art Career reboot, and in Part Two of my three (or maybe four) part update on 2015 I’m going to talk about the next step.

If it ain’t broke… it probably is, so buy all new equipment!

The studio process for creating my images has remained relatively unchanged for the past 7 years. I’ve used the same 10 megapixel Canon XTi purchased in 2007, shooting scenes setup inside a 30″ light tent surrounded by three 500 watt photo flood lights. The tent has always provided really great light, and it made a huge difference in my work when I began getting more serious about creating art in 2007. However, this magical little studio cube has a few shortcomings:

  1. The size of the tent limits the size of the pieces I’m able to create.
  2. The tent itself is very confining and it is very difficult to contort my hands, arms, and (quite often) the upper half of my body deep into the tent to make small stage adjustments without bumping the camera, tripod, or precariously balanced objects already in the scene. Disasters are routine. My work is fraught with the perils of alphabet avalanches, and album covers that topple over in an earthquake of pop culture destruction.

These problems are magnified by a factor of about a thousand when creating videos or stop motion animation. Once the tripod is nudged, or the camera is jostled, hours or even days can pass before I’m able to accurately get everything back where it was. Take a look at just a few short moments to shoot a single frame of stop motion animation. 

See? What a pain! So that was the old process. To make things a little easier on my back, my neck, and my patience, I wanted to make the task of building and animating my stage sets much less constrictive, but still have the benefits of enjoying 1500 watts of glorious light. Basically, I wanted 360 degree access to the stage set; if a little plastic Jesus decided to fall behind a stack of books, or a plastic sheep plummeted through the hole in a vinyl 45, I wanted at least a fair chance to retrieve the fallen character without having to rip apart large portions of the construction. So… no more light tent.

No more light tent?!?! But what about all that “glorious light” you’re always bragging about? How in the world are you going to replace that? Huh, Mr. Barely-knows-how-to-use-his-camera?

Patience, please! I didn’t say I was eliminating the light, I was just eliminating the tent. Eliminating the tent, however, meant I’d no longer have the lazy benefit of light bouncing all over the place off of the reflective white fabric. The tent made lighting super easy. Just place a floodlight on the left, another on the right, and hang one more over the top and let the laws of physics take care of everything else. Replacing the tent just meant that I’d have to be a lot more strategic about how my pieces would be lit.

No more light tent. Instead, a soft box!

No more light tent. Instead, a soft box!

The first step in replacing the light tent was  to provide a simple workplace that would give me access to the scene from any direction, so I just laid down a large piece of black posterboard where the tight tent would have normally sat, and erected a sheet of white foam core to act as a visual backdrop, as you see to the left during the initial stages of setting up the first new photo I created with my new equipment. Without the constraints of the light tent, I now had access to the scene construction from all around the table (which actually stands about a foot away from the wall).

Quick Note You see five light sources in the photo above: two photo flood lights, a brand new LED soft box, and a pair of desk lamps. The desk lamps are used to provide illumination to the scene during stage construction; they are turned off when I’m taking photos.

The soft box is now used as my primary light source, providing soft, even light from above. With the lamp mounted to a sturdy boom, I can easily adjust the height up or down to get the coverage a given scene might need. Best of all, the soft box can be moved away entirely so I can easily change the composition of a scene without risk of upsetting the whole cart of apples — something that was not possible within the light tent.

Soft box, flood lights, and translucent diffusers

Soft box, flood lights, and translucent diffusers

But wait! Just like Ginzu Knives… that’s not all!

To supplement the soft box I retained the original 500 watt photo flood lights, but front those with a couple of 20″ translucent diffusers to soften the otherwise harsh light produced by the floods, as seen on the right. Positioning the lights and diffusers is super easy, so I can get the same level of “coverage” formerly available in the light tent, while again having the luxury of moving all of the lighting out of the way to dig into the construction.

Wait! What about that really BIG diffuser you have hanging over the entire scene? It looks like you have even less space than you did with the light tent! And why even use a diffuser and the soft box IS a diffuser? How about that, smart guy!

Very observant, and, true! Suspending that large disc over the whole scene made it virtually impossible to make any more changes to the scene you see buried beneath all those discs and lights — which is why the stands, lights and reflectors come in after I’m completely happy with the scene I’ve constructed. As for why the big diffuser is there…

Oh look! Soft box times a million red beads!

Oh look! Soft box times a million red beads!

During the shooting of this particular photo, and at the point where I thought I was done, I discovered that the octagonal shape of the soft box was being reflected in each and every bead that had been used within the scene! This hadn’t been a problem with the light tent… and, so, the big 40″ diffuser was brought in to better distribute the light and eliminate the reflections.

Why stop with new lights when your camera is 7 years old?

Exactly! As stated in part one, I’ve been using the same Canon XTi since 2007. By no means has this been a “bad” camera; it’s super easy to use and takes very nice photos. But, over the years, as I’ve continued to develop a technique for creating better images, I’ve found the camera lacking certain efficient features. Most notably:

  • Falling behind the megapixel curve. Even though 10 megapixels was a lot in 2007, there are now cellphone cameras that can (badly) capture images at that resolution, and while the number of megapixels may not equate to better pictures, it does limit how large you can effectively print.
  • The lack of an LCD view finder that can display a scene “live” as it is being composed. I didn’t mind using the built-in “by sight” view finder, but I’ve always thought it would be easier to see what I was planning on shooting on an LCD display, or…
  • …view an interface to an external monitor, a feature the XTi lacks.
  • I also felt somewhat constrained by the focusing limitations of the XTi, which provides 9 autofocus points, and for the past few years I’ve been relying more and more on taking multiple shots of the same image, all at different focus points, then “smooshing” those photos together, as layers, to create the final image. I figured, the more autofocus points, the better!

My solution was to take the plunge into much better equipment, so I purchased a new Canon EOS 70D — 20 megapixels instead of 10, 19 autofocus points instead of 9, LCD display with a live mode, and…


What the camera sees, I see

What the camera sees, I see

Absolutely the best feature of the new camera is the ability to tether the camera to my MacBook and control every aspect of the camera (aperture, ISO, focusing, pressing the shutter, etc) from my computer, all the while seeing what the camera is seeing on the laptop display! And why is this so cool? Well, let’s take a look at the process I used to take to setup my images using the XTi:

  • Setup a scene in my studio (which is outside, across a small patio, in my guest house).
  • Take a photo.
  • Remove the camera from the tripod, take it into the house and upstairs to my office.
  • Plug the camera into my iMac and import the photo into Aperture.
  • Analyze the image, writing notes on a scrap of paper: turn yellow kewpie clockwise by a little, nudge blue buddha to the left by a smidgen, replace small goat with small lamb…
  • Go back to the studio
  • Make the noted changes
  • Remount the camera onto the tripod (and hope that it is in the exact same place as it had been when I took the previous photo)
  • Take another photo
  • Repeat ad infinitum…

Toss in several clumsy disasters dealing with the iron-maiden-like constraints of the light tent, and… well, you get the idea. But with the new camera and Canon’s software, I can see the scene live, zooming around the entire composition to immediately evaluate where one figure stands in relation to all the others. Even better, I can fine tune the focus since the software also allows me to control my L-series lens — and, I’m able to see the eventual histogram in real time, so I can adjust things like the shutter speed or the lighting conditions on the fly to produce the best image possible. Needless to say, this has cut down the above steps drastically! So, does that mean I’m going to be able to produce work faster than in the past? Ha!! Don’t jump to conclusions… We’ll get to that in part three.

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I know what you’re thinking… Where has John been all year? Why have we not seen any new posts? Why haven’t we seen any new images? Why haven’t we seen any spectacular new videos? First, thank you for wondering (even if the wondering is really just me typing in italics), and second, I’ve been busy, of course! Busy doing what? You know, busy, which is why I’m writing a post subtitled “a quick 2015 update.” So here goes!

Getting clean and organized!

Looking around my studio as the calendar flipped from the old year to the new I came to the realization that… wow, my studio was a mess!

My messy studio

My messy studio

Boxes and bags, cables and extension cords, crates of records, trash, litter, and dust, dust, dust! How could an artist with a mild case of OCD work under such chaotic conditions?!?! Worse, I was beginning to notice that many of the most cherished toys were just plain dirty after years of handling and open air storage.

The Wind-up Dreams "toy store"

The Wind-up Dreams “toy store”

Sure, it was nice to have all of these fun things on displays, and visitors to my studio loved to browse the visual treats on display in “the toy store,” but this came at a price, and the inevitable question, “How do you dust all of that?” Well, I didn’t. I just sort of dusted off things as they were selected to appear in my photos. Plus, I was completely out of room and it wasn’t always easy to find the figure I was looking for. And so I decided to “close” the toy store, and spend the early part of January organizing and cleaning every single piece of retrograde ephemera on the shelves. Battalions of army men! Jungles of exotic animals! A congress of presidents and a bandstand of Beatles! One by one everything was plucked from its place and carefully scrubbed with soap and a soft toothbrush.

Cleanliness is next to kewpieness

Cleanliness is next to kewpieness

Next, to avoid a similar future fate befalling my kewpie, monks, and finger puppet nuns, every piece was organized and stored in plastic lunch containers. Yes — Jesus, Buddhas, and devils to go! Leftovers of the holiest variety! One bin for astronauts, another for nesting dolls. Hearts, brains and assorted other body parts together in an organic stew, while robots reigned supreme in an air tight container of their very own. Super fragile hand painted pieces — my presidents, football players, and collection of Marx “bathing beauties” — were boxed, labeled, and shelved. The results?

Every good kid put their toys away at the end of the day

Every good kid put their toys away at the end of the day

While perhaps not as visually inviting at my previous “5 Levels of Wind-up Dreams Hell”, the new shelf arrangement is far more efficient for actually creating my art. Plus, I can always crack open a corner and out they all come to play and create mischief before the eye of my camera! Next up was to replace the black milk crates you see in the top photo which I have been using to store all of my cheesy vintage vinyl albums. The crates are actually a really great storage solution for LPs: perfect sizes, stackable, and portable. The emphasis, however, is on “storage” as they are not particularly convenient for browsing album covers.

Quick admonition I don’t actually browse through the albums in my collection, flipping from one to the next in search of the perfect cover art to provide the background for a new piece of art. I long ago digitized all of my album art, so I usually do my browsing from the bright colorful screen of my iMac.

Ikea Kallax shelving for my records

Ikea Kallax shelving for my records

If you’re not going to ever actually use your records, yes, by all means, put them in crates and stack them to your heart’s content. But if you need to find a particular record, and it happens to be buried with crates above, and to the left and right, prepare yourself for torturous pain. A full crate of records is not exactly light, and milk crates tend to enjoy taking a bite out of stray fingers and knuckles as those interlocking jaws of plastic snap with bone crunching force. I replaced my faithful black plastic crates with a pair of much more aesthetically pleasing Kallax storage units from Ikea. They’re just the right size for LPs, and now I can find my alphabetically arranged records by simply browsing the spines. Nice, huh? And that’s going to do it for part one of what will be either a three or four part post on bringing my blog up to the present. In the next installment I’m going to write about how I took seven years of studio experience and tossed it out the window to completely start fresh with how I setup and shoot my images. Sounds scary, don’t it? It was, I assure you! Look for Part Two very soon!

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March already? Far too much time has passed between posts, but I’ve been hard at work on a new photograph and video to share.

Cha Cha Cha Cha Cha Cha — Pedro Garcia, 1958

Cha Cha Cha Cha Cha Cha — Pedro Garcia, 1958

Way back in 2012 I made an attempt at creating a photo built around a super cool album cover that featured a slinky masked dancer cavorting about beneath a cascade of streamers and balloons (seen to the right). After staging and shooting the photo, the images lingered in my computer, and as I prepped for my 2013 summer show at the Pannikin in La Jolla, I simply abandoned what I’d shot. Oh, sure, I could show you the unfinished work here and now, but the OCD in me would probably try to make a diamond from a pigs ear and I’d spend weeks and weeks trying to at least make the failed composition look presentable. Instead, let’s jump right to the brand new photo — which I like!

Madame Paparazzi's wicked danse of seductive transformation

Madame Paparazzi’s wicked danse of seductive transformation

I actually took over 30 shots of this staging, then constructed the final image from the 7 best images, layering portions of each photo one atop the next to achieve deep focus throughout the final piece.

I tend to be easily distracted while working on my creative pursuits, so rather than snap the photos, sort through the candidate images, and plow through with all the necessary image adjustments, I ended up creating a video for the photo before I actually completed the photo (and, yes, that is possible in the world of Wind-up Dreams & Vinyl Nightmares). The frames for the animation were taken while I was deconstructing the stage set, and then reassembled into a free flowing pan’n’scan video using a whole bunch of software: Aperture, GraphicConverter, iDraw, and a new (to me) slideshow package called FotoMagico that allowed me to create deeper zooms than I’d used in previous animations. Nice piece of software worth checking out!

In an ideal world making one of these videos would be really simple: I’d come up with an idea, I’d choose some music, I’d shoot all the frames, and — voila! — there I’d have a finished video! Remember, though, that I begin with the finished photo, and, therefore, the last frame in the animation. The trick, then, is to conceive of the story in reverse, and begin taking things away from the scene in an order that will make some logical narrative sense once everything is reordered to run from start to finish. Oh, and without a sense of the audio that will be used.

This is… tricky.

Ah! But luckily, not impossible, and even when mistakes are made (for instance, removing objects out of order or completely reconsidering the storyboard during post production) software makes nearly anything possible.

Let’s take a look!

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It’s been quite a while since I last wrote a post on how I go about photographing and creating some of the images you’ll find on my web site, and with the release of a brand new limited edition print imminent I thought I’d chime in on some of the behind the scene shenanigans that went into the creation of that image — She who creates Good Fortune.

Preliminary Stuff

The concept behind this photo would be the coming into being of an entity that was responsible for bringing Fate to the world through the creation of tarot cards. I envisioned an artist standing at an easel painting cards one at a time, with a stack of blank cards on one side and finished cards on the other. Surrounding the figures would be elements representing other celestial and mystical realms, while in the background an even higher mystical figure would look on.

Brush CloseupPlaying the role of “artist” at the center of the new composition would be a figure I frequently refer to as “Marilyn”, solely because she is blonde and has a billowy dress. She was produced by the Marx Toy Company in a set of scantily clad figures known as “Louis’s Beauties”. Her pose, with one hand stretching forward and the other curved inward, would be perfect — so long as I could place a tiny paintbrush in her hand and set a “canvas” before her on an easel. And that’s what you see to the right. I fashioned an easel from wooden coffee stirrers (propped up by undetected Legos), while the paintbrush was made from the end of a toothpick and a skinny strip of aluminum foil wrapped around the snipped ends of an actual paintbrush.

The Photo Shoot

Over the past couple of years my process has become increasingly complex, with elaborate stage sets, and images that are sandwiched together from multiple focus layers (see a past post on the subject of creating focus stacks). Seriously, some of my photos take a month or more to produce. So, in preparing work for my 2013 summer show I decided to go “back to basics” for a set of simple landscape image: one record cover, one stack of 45’s, a primary figure, and maybe a couple of additional figures in the background. Deep focus? Forget it; I wanted the focus to only be on a single character emerging from the center of a record, and the rest of the image could be blurry — like real professional photography!

For these photos I put away my DSLR and my nice L-series lens, and instead chose to use my “walking around” camera — a compact little Canon SD-1000 Elf with a built-in digital macro setting that would be perfect for getting up close and personal with the characters I wanted to highlight. I shot brides and grooms, belly dancers, religious icons, and all sorts of figures — all from a few inches away with a very shallow depth of field (focal length 5.8mm, aperture f/2.8). I was able to take each of these photos fairly quickly, spending not much more than a day or so shooting and adjusting the finished image, while retaining the conceptual and symbolic elements of my more elaborate images.

Staging for She who creates Good Fortune

Staging for She who creates Good Fortune

Above, you see the final staging for She who creates Good Fortune. Very simple. An album cover in the background, a stack of records in the foreground (actually balanced atop alphabet blocks in addition to the book you see), and a handful of objects used to tell the story. The whole scene, from back to front, is about 8 inches deep, with the dancer emerging from the stack of records about 4½ inches from the back. In front of everything is a crude tripod I built out of Legos to compose my shot and hold the camera steady.

IMG_0319As you can see in the photo on the left, the camera sits only a few inches from the action. Given the tight focal length and relatively large aperture, the depth of field is going to be very shallow — exactly what I was seeking to accomplish with this series of macro landscapes. Except…

For this particular photo that wasn’t what I wanted. Focusing on the artist in the center of the record brought her nicely into focus, but left the card she was painting — and even the paintbrush! — out of focus. Likewise, the card being laid down and the mouse were fuzzy, and I felt those elements of the image were just as important (symbolically) as the artist at the center.

So, it was back to my deep focus trick to mask out and combine the in-focus elements from multiple photos to construct a single image. Luckily, for this photo, I’d only have to worry about two images: one that held the foreground in focus and one that held the background in focus (or, actually, just the two farthest tarot cards — the album cover and Loteria blocks could remain out of focus). Easy, right?


Take a look at the two photos below: one focused at the center of the artist’s back, the other focused on the tarot card she is painting. Apart from the shifting of focus from the area around the artist to the area just beyond the artist, notice anything slightly peculiar?

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My deep focus trick relies on overlaying portions of one photo on top of another — provided all the photos are taken from exactly the same vantage point, something my professional tripod does quite well. A tripod made of Legos… not so much. So what you see above is a slight shift in vantage point as I moved the camera to alter the focus. And that means this when the two photos are laid one atop the other:

Foreground and background overlay

Foreground and background overlay — click to view larger image

Well now, THAT doesn’t look very good, does it?

What should have been an easy task of masking out the in-focus elements of the foreground and layering them over the background in one convenient step became a lot more challenging. If you look carefully at the image above you’ll see that the “difference ” (for lack of a better word) between the two images is not merely a simple (x,y) shift of a few pixels. The perspective has actually changed from one image to the next, though not a lot. Want some proof? Take a look at an actual size closeup of the overlay on the left side of the record label:

Photo overlay — left side detail

Photo overlay — left side detail

Note the position of each character in the word “Productions” from one image to the other. The base of the “P” is off by a little, with the better focused image a little higher and shifted a bit to the right. By the time you get to the “n” and the “s”, what had been a little change is noticeably larger. And if you scan all the way over to the right side of the record label…

Photo overlay — right side detail

Photo overlay — right side detail

Yikes! the difference is now very, very noticeable! So much for my plan to simply place pieces of the foreground over the background.

The solution?

Forcing square pegs into round holes

Yep, that’s pretty much what I had to do. Upon closely examining the foreground image I identified nine areas that could be carefully masked out and placed on top of the background, as you can see in the animation below (you can read about how to create brushed masked layers using Apple’s Aperture software here):

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Note that most of the masked layers have been carefully shaped to completely encircle a given region (say, text on the label) with the perimeter of the “puzzle piece” falling on an area of uniform color and texture, such as the brownish-orange of the record label. By creating the layers in this way, and feathering the edges, it became much easier to blend the top layer into the image beneath. In some cases (such as with the Wheel Of Fortune region, below), this wasn’t possible, and the puzzle piece had to cut through a “solid” object. Even in these cases, however, you’ll notice that the edge remains — as much as possible — within uniform regions of the masked layer (as below, across the field of blue on the tarot card).

Wheel of Fortune layer (detail)

Wheel of Fortune layer (detail)

Once all of the layers had been masked and output as transparent TIFFs, assembling the final image became an exercise of dropping puzzle pieces over the background and scooting them around until each was aligned (as closely as possible) with the background. The animation below illustrates how this was done for the text on the right side of the label, first moving it horizontally and vertically, then rotating the image ever so slightly to compensate for the change in perspective from one photo to the next (eyeballing the alignment, of course).

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I also had to slightly resize the layered image to match the height and width of the text in the underlying background. Because these photos were macro shots, the slightest difference in distance (and angle) of the lens to the objects from one photo to the next resulted in similar differences in what was captured by the camera. So, where the width of the phrase “IN THE SKY” might be w in the background photo, it might be w’ in the foreground photo requiring that the dimensions of layered “puzzle piece” be changed to match what it would be correcting. Optics! Cool! (Or not so cool…)

All told I created nine separate foreground layers to assemble the final image and achieve the look I had been seeking. To finish off the piece, I selectively erased some of the background yellow on the tarot card being “painted” to create the illusion of the artist adding the finishing touches on a new card of Good Fortune. Likewise, the surface of the card on the right was erased to give the appearance of a stack of blank cards waiting to be brought to life.

Yes, it was a lot more effort than I’d been anticipating, but I was more than happy with the results, and She who creates Good Fortune was one of the best received images in my summer solo show.

She who creates Good Fortune

She who creates Good Fortune

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Custom designed DIY album covers

Custom designed DIY album covers

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:

  1. 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.
  2. 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

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.

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

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…

Height = 12 ¾” + 1″ + 3/16″ + 1″ = 14 15/16″
Width = 12 ¾” + 3/16″ + 12 ¾” = 25 11/16″

20 x 30" prints  on Kodak Endura photographic paper

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

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:

  1. Left edge of the front cover where it meets the right side of the spine.
  2. Left edge of the spine where it meets the right edge of the back cover.
  3. Bottom edge of the top tab where it meets the top edge of the top margin.
  4. Bottom edge of the top margin where it meets the top of the back cover.
  5. Top edge of the bottom tab where it meets the bottom edge of the bottom margin.
  6. 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

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!

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.

That’s all there is to it!

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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.


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Great news in the land of Wind-up Dreams!

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!!

Wind-up Dreams & Vinyl Nightmares Shop

What will you find there?

Final Frame case for the iPhone 5

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!

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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.


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:

  1. 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.

  1. 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

  1. 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.

  1. 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.

  1. 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:

  1. Notification  Check!
  2. Challenge  Check!
  3. Counter  Check!
  4. 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 Support FAIR USE on Tumblr

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:

I support FAIR USE and the Copyright Act of 1976

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.

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