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Ask a Pro Webinar and Resources for Illustration and Design Students Published

Posted by Advocacy Liaison on October 21, 2016

If length is any sign of success, our Ask a Pro webinar with illustration and design students coast-to-coast was a hit. Illustrators, animators, and designers logged on October 19 to ask questions of illustrator Ed Shems and design director Rebecca Blake, including entire classrooms from MassArt in Boston and the Art Institute in San Francisco. The webinar lasted over 2 hours – an hour longer than anticipated – and covered both questions submitted in advance and ones entered into the webinar chatstream in real time.

After the webinar concluded, the links and resources shared during the talk were gathered into a resource list. Additional links to articles, tutorials, portfolios sites, job boards, and recommended business tools were added to address all of the questions that were raised in the course of the webinar. The result is a comprehensive list of resources on copyrights, starting a business, self-promotion and marketing, pricing, productivity tools, service providers, and finding work. A link to the webinar, and the resource list have been published as “Ask a Pro! YOUR Q&A with a Graphic Designer and an Illustrator Webinar and Resource List” in the Guild’s Tools and Resources section.

The webinar was coordinated by the Guild’s New England administrator Carolyn Wirth, who reached out to MassArt’s Career Development Office to gauge interest, and Ed Shems, who developed the webinar and suggested its overall structure. The Guild also decided to make the webinar and resource list publicly available for free, in the hope that it would provide valuable insight into professional practices for students and newly minted professionals.

Ask a Pro webinar screenshot

Illustrator Cory Kerr Makes the Case for Using a Contract

Posted by Rebecca Blake on October 11, 2016

“Good clients come from good relationships. Good relationships come from managing and meeting expectations. Expectations start at contracts.” This is how illustrator Cory Kerr begins his podcast, “Contracts and the Apocalypse.” The 11-minute video is directed to illustrators who are new to the business side of illustration, or who are uncomfortable with using contracts.

At the outset, Kerr allays fears that using contracts will scare away good business. In fact, Kerr warns that clients who are unwilling to sign a contract may be trying to evade paying the illustrator. Kerr also addresses the discomfort illustrators have in assigning a value to their work: “Value in exchange for value is how business works. And even if you're an artist or musician or some sort of creative, just because that seems more fun doesn't mean [you’re] not providing value and it doesn't mean it's not a business transaction.” Kerr stresses that exposure – creating work for free in exchange for publicity – is rarely a value-for-value exchange since, as he points out, clients rarely can offer the kind of exposure that would reward the illustrator adequately.

Kerr makes arguments for why illustrators should use contracts, and provides a quick overview of what contracts should establish: price, deliverables, payment schedule, and kill fee. Kerr also gives a huge plug for our Handbook: Pricing & Ethical Guidelines. (One clarification on Kerr’s presentation: the Handbook includes pricing tables created from pricing information provided by artists nationwide. These do not represent pricing the Guild recommends that artists charge, but rather, provide guidelines on what artists’ peers are charging.) The Handbook includes a full complement of sample contracts for a number of disciplines, and can be purchased either in print or, as a three-volume set, in eBook format.

Kerr has enhanced his podcast with a mesmerizing video of him working on a motorcycle-themed illustration, The Four Horseman. It’s an incongruous but delightful touch that somehow works in engaging the viewers’ attention, while not detracting from Kerr’s soliloquy.

Video © Cory Kerr. Used with permission.

$1 Billion Lawsuit Against Getty Images Raises Questions about Public Domain Dedication

Posted by Rebecca Blake on September 29, 2016

Photographer Carol Highsmith was outraged when she received a $120 invoice from Licensing Compliance Services on behalf of Almay Limited, a photo stock agency. The invoice was accompanied with a threat letter contending that she was using one of their licensed images on her website. Why the outrage? Highsmith had taken the photograph Almay was claiming to license. Not only that, Highsmith had donated that photo to the Library of Congress for public use, rights-free. A little bit of digging revealed that Almay Limited and photo stock giant Getty Images were selling Highsmith’s public domain images, and were aggressively pursuing anyone found to be using those images via the content tracking service PicScout (a Getty subsidiary).

Highsmith is a well-regarded photographer who documents the cities, countryside, and cultures of the United States. Her work has have been widely acclaimed and published. Inspired by iconic American photographers such as Dorothea Lange and Frances Benjamin Johnson, Highsmith began donating her photographs to the Library of Congress in 1988. The Library established a one-person archive of her work, to which Highsmith continues to contribute; the collection is expected to top out at over 100,000 images. An article on PDNPulse states that in making her images public domain, “Highsmith says she never abandoned her copyrights to the images. She says the Library of Congress had agreed to notify users of the images that she is the author, and that users must credit her.” (“Photog Seeks $1 Billion from Getty for Copyright Violations,” David Walker, Sept. 9, PDN Pulse) Her intention was to make the photographs available rights-free “for the use and benefit of the American people, and as a permanent record of our nation’s buildings, landscape, culture, and people.” Discovering that her donated work was monetized by stock image agencies was a surprise.

Hightsmith contacted Licensing Compliance Services, who quickly dropped the invoice. But Highsmith wasn’t satisfied. Searches pulled up 18,755 of her donated images on Getty Images, and about 500 on Alamay. Both Getty and Alamay were inconsistent in how the photo was credited. Alamay made no reference to Highsmith, but labeled her photos “© Everett Collection Inc / Alamy Stock Photo.” Getty labeled some images “By: Buyenlarge”, and others “Credit: Buyenlarge/Contributor”, followed by “Photo by Carol Highsmith/Buyenlarge/Getty Images.” (Buyenlarge is the profile of a contributor on the Getty website. It’s also the name of a print-on-demand poster printer specializing in public domain and licensed historic ephemera; some of those images also appear on Getty under Buyenlarge's credit line.) Highsmith also discovered that Getty and Alamay continued to seek out and invoice users of Highsmith’s images, even after they were made aware that users may have sourced the images from the Library’s Highsmith collection.

The sheer volume of the images posted to Getty Images and Alamay led Highsmith and her legal team to seek damages of $1 billion from Getty, Alamay, Licensing Compliance Services, and PicScout. Highsmith is contending that when Getty and Alamay removed or altered the credit line from the photos – the Highsmith/Library of Congress credit she had stipulated upon donating her photos – the defendants violated DMCA provisions of US copyright law which proscribe the altering or elimination of copyright management information (CMI) with the intent to enable or conceal copyright infringement. The lawsuit also contends that the defendants are falsely presenting themselves as the copyright holders (or their agents), and threatened lawsuits they couldn’t pursue against people who lawfully used Highsmith's public domain images. (Highsmith is not claiming copyright infringement in her suit.)

While that figure sounds hyperbolic, it’s based on what the legal team thinks they could be awarded. As outlined in her lawsuit, each instance of infringement could be seen as a separate violation of Section 1202 of US Copyright law, and could result in a award of between $2,500 and $25,000. Multiply that by 18,755 infringements, and the total comes to between $46,887,500 and $468,875,000. Since Getty was already found to have infringed a photographer’s work in the past three years, the Court could additionally treble the damages awarded to Highsmith – hence the $1 billion price tag. (Highsmith also contends that Getty’s licensing of her work damaged her reputation by making her appear to have been hypocritical in first donating her work to the Library, and later deciding to license the work to Getty.)


Carol Highsmith, photographer, Nelson Atkins Art Museum, Kansas City, Missouri

Carol Highsmith was invoiced for her photo of the Nelson Atkins Art Museum in Kansas City, MO.

Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division

Getty responded to the lawsuit with a statement claiming that the complaint was based on misconceptions, and filed a motion to dismiss the case. In their motion, they refute that they altered the CMI. Getty's motion also states they could not have altered the CMI with the intent to infringe copyrights, since no copyrights exist to infringe on public domain images. It’s not certain that Highsmith will prevail, should the case go to trial. Stock agencies legally license public domain images, and justify the fees by citing the resources they invest to make the images available for “productive use.” In her article, “Can Anyone Use Public Domain Images?”,  Nancy Wolf, legal counsel to DMLA, explains that legally anyone can make use of public domain images, including licensing them. But most images enter the public domain when their copyright expires, if their copyright wasn’t renewed, or if the work didn’t have a valid copyright notice.

But what about images that were dedicated to the public domain? Can the creator make that dedication conditional, as did Highsmith claims she did with her requirement of a credit line? And does the creator retain any copyrights? The IP blog Public Domain Sherpa asked the Copyright Office whether an author could abandon his or her copyright to a work. The Office responded that there is no specific provision in copyright law for disclaiming copyrights, and that while an author can record their intention with the Office, the acceptance of a statement of abandonment of copyrights  “…should not be construed as approval of the legal sufficiency of its content or its effect on the status or ownership of any copyright.” In her agreement with the Library, Highsmith stated that she dedicated to the public “all rights, including copyrights throughout the world, that I possess in this collection.” However, the agreement also states that the Library will request that those reproducing the work include the credit line, “Carol M. Highsmith's America, Library of Congress.”

There’s a good chance Getty and the other defendants will settle out of court with Highsmith. Even if they stand a good chance of winning the suit, the negative pulicity generated by the lawsuit may make a court battle not worth the effort. Getty and Alamay have removed all of the Highsmith images from their websites. But what about those who used Highsmith’s images legally from the Library of Congress website, but were invoiced by Alamay or Getty (and paid the bill in some confusion)? Jonathan Bailey on Plagiarism Today wonders if a class action lawsuit brought by those erroneously billed by the stock agencies will be brought.

The Power of the © Notice

Posted by Rebecca Blake on September 15, 2016

Leslie Burns copyright noticeIn June, we reported on attorney Leslie Burns’ article on CMI: copyright management information. Burns advised visual artists to put a visible copyright notice on  work they post online, since doing so provides the artists with additional tools to bring to bear, should the work be infringed. In her follow-up article, “Your © is More Than CMI,” Burns goes into greater detail on how to effectively use the copyright notice, and why doing so is such a good practice.

First, Burns explains that the copyright notice must include the copyright symbol, the date of publication, and the copyright owner’s name. (For those confused on what the date of publication is, she goes into a bit of detail.) She then explains that if an infringer uses a work that had a copyright notice removed, the infringer can’t claim “innocent infringement” – even if the infringer got the artwork from another source, and had no idea that a copyright notice had been removed. Burns cites two copyright cases that support this rule: BMG Music v. Gonzalez and Maverick Recording v. Harper
Infringers who have used works from which the copyright notice of watermark was removed have violated §1202 of the DMCA (Digital Millenium Copyright Act). Burns calculates that the infringer could be looking at a minimum of $3,250 in damages ($750 for the infringement, and $2,500 for the DMCA violation), and possibly attorney’s fees.

Of course, none of this will apply if the visual artist hasn’t first registered his or her work with the copyright office. Remember, a work must be registered before an artist can sue for copyright infringement.While an artist can register work after detecting that it's been infringed, damages are limited if the work is registered after the infringement occurs. WIth a background in business and marketing management for a photography studio and a design firm, Burns is huge advocate for visual artists. Her website, Burns the Attorney, features a steady stream of articles on legal issues creative types need to be on top of.

Workgroups Present to the International Design Community at ico-D Platform Meetings

Posted by Rebecca Blake on September 09, 2016

ico-D, the International Council of Design, represents the interests of design associations, educational institutions, and promotional organizations globally, and the Guild has been a member since 2007. The ico-D Platform Meetings were held late August in Pasadena, CA, providing an opportunity for members to meet and discuss the work of the organization’s professional and educational workgroups. As head of the workgroup on National Design Policy, the platform meeting was both an opportunity for us to connect with international designers, and the culmination of a lot of hard work.

The ico-D “platforms” were established to provide an opportunity for members to work on projects in between the organization’s annual member meetings. Platforms were established for each of the categories of ico-D members: Educational, Professional, and Promotional. At the first Professional Platform meeting (which the Guild is part of), ico-D member associations listed three topics they wanted to focus on: National Design Policy (NDP), Communicating the Value of Design (CVD), and Design Certification (DC). Workgroups were established for each topic last summer, and as the Guild’s representative to ico-D, I was asked to head the NDP group.

During the past year, the workgroup met frequently via Skype, often at odd hours to so that members from Malaysia, Indonesia, Canada, South Korea, the US, and Australia wouldn’t have to miss their sleep to participate. We also conducted interviews with designers involved with the design policies of their home countries or states – a fascinating peek into the varied “design ecosystems,” the relationships between the design sector, businesses, governmental agencies, and the public. (See the article National Design Policies: Why They Matter.)


ico-D Professional Platform Meeting August 2016

Discussion sessions at the platform meetings brought in fresh perspectives from associations representatives and design educators from around the globe.


At the Pasadena Platform Meeting, the NDP workgroup was allotted a half day for presentations. That permitted NDP workgroup members to present on what is occurring in their countries, from an elegant and proactive system (South Korea), to the first steps to crafting an NDP (Malaysia and Indonesia), to attempts at a regional design policy (Australia), and finally, to a failed attempt (USA). At a member Q&A session, attendees spoke about the political and economic conditions in their home states that hinder (or help) the creation of coherent design policies. I also participated in the CVD “Design has Value” session, co-presenting with designer and ico-D friend Zelda Harrison on Communicating the Value of Design to Government.

The workgroup sessions were punctuated by the ico-D annual general meeting, a tour of the Pasadena College of Art and Design, a fascinating panel discussion on Design and Complexity, and a workshop on sustainable design. Based on the quality of the discussions at the meeting and the interest from members in joining the workgroups, the Platform meeting was a success. But what also became apparent is the amount of work still left to develop valuable resources for ico-D members, and to create a space where international design associations can collaboration on crucial projects. 

Below: “Learn to Create. Influence Change.” The College of Art and Design’s motto is displayed prominently in their machine shop.

Pasadena College of Art and Design machine shop

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