Recently, I’ve had a spate of people using my artwork on their websites and YouTube videos and replying with ‘Fair Usage’ when I’ve asked them about this (including one high-profile person whose name I won’t mention for now, and told me they were ‘not for profit’ despite an incredibly popular kickstarter campaign for the thing my work was used in - Lovely!). ‘Fair Use’ is a get-around clause for using someone else’s work in your own work - without permission - providing it fits within a set of example uses.
Wikipedia explains it best;
“Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.”
Effectively, this means that, for example, a news corporation could use any photographer’s photographs totally free of charge and without asking permission, provided it can be proven to be relevant to the article - on the face of things, this means a newspaper could probably use your holiday snaps with you holding a beer, to comment on (for example) how people of your home country behave like lager louts while abroad on holiday , (even if this is a one-off week long holiday, you’re having a cheeky beer, and that the rest of the year, you’re completely tee-total and a hard worker)
Oh, Daily Mail! You like nothing better than to look down on other people…They’re probably really nice people in that photo - and where is this ‘booze’ you speak of? Not one of them is holding a glass. (unfortunately, there seem to be a few photographers called ‘Nick Holt’, and none of the one’s I’ve seen seem to do photos in Ibiza, so either one of them doesn’t want to admit to this, or it’s a personal photograph)
But this isn’t about newspapers using photographs.
Today, I’m here to talk about ‘fair usage’ of an independent artist’s personal artwork - whether it be professional work, or the work of someone just starting out, and whether it’s a drawing, painting, digital work, photography, textiles - any medium.
First, let me explain the False Equivalence of fair usage of a piece owned by a large corporation/well-known business, and a piece of artwork owned by a little-known artist.
If you were to take 1000 people from different areas of the world, sit them in a convention hall, then show them (for example) The McDonalds ‘M’, most, if not all, will be able to tell you where it’s from, and most, if not all of them, will be able to tell you what McDonalds’ sell (or the variation of what they sell in that person’s country). This is because McDonalds is a huge brand which owns stores in 119 different countries - it has around 68 MILLION customers per day. PER. DAY. And not all of those customers will be regulars. If you use the McDonald’s ‘M’ in your news article, blog post, YouTube Video etc without permission under ‘fair use’, pretty much anyone who sees that article will be able to tell you what it’s from (now, consider that when I was 3 years old, and we moved from the south of England to the North of England, no-one up north knew what a ‘McDonald’s’ was, other than a farm - but 25 years later, and there’ll be 2-4 in most of the larger towns - that’s insane)
The McDonald’s M (Thankyou again, wikipedia)
Now, take the Independent artist. By their own merits, they may have a small fan base who has bought or appreciates their work. This fan base may be around 1000 people out of the world’s approximate total of 7.1 BILLION people - those 1000 (lovely) people are just a drop in the ocean compared to that. Now, imagine if 1 person from the 7.1 billion people saw a piece of artwork the artist made and thought ‘Ooh, I’ll have that for my website article under Fair Usage, and just link back to the picture’ - 1000 more people may see that picture, but they might not know about the other amazing things that artist has created. That artist may have a selection of really nice artwork that can be bought as pictures, clothing, sculptures, books, textiles, - things that someone may want to buy. That first picture may get 1000’s of new views, but because the picture hasn’t been properly credited back to the artist’s main page, that artist may not get any new fans or sales out of it, despite 1000s of people really liking the picture. However, when the artist promotes themselves with the proper links, they may receive far more new fans, more sales, and be able to grow and expand their business.
To compare the popularity and recognisability of an independent artist’s artwork to one of the world’s most recogniseable logos of one of the world’s most popular brands is unfair. And so is quoting ‘Fair Usage of work’ to that same independent artist as if they were a huge corporation.
This is the False Equivalence of ‘Fair Usage’.
By not properly crediting, or taking the time to properly link the artist, you are hurting their business (see ‘Orphaned works’ link far below), and not supporting them like you probably assume that you are. Now, for independent artists - this is their livelihood - proper crediting and linking is so important to them. I know quite a few artists whose personal circumstances mean that they have to rely on their artwork to survive - there isn’t any other option for them (I myself have been one of these people for a number of years now) and it’s not always something they particularly want to talk about to a group of strangers. They don’t want to give you the guilt trip. But by taking their work, using it in your choice of media under ‘Fair Usage’ (or even Creative Commons when it isn’t) and then not properly linking back to the right page - They’re not going to see it as help with promotion, you’re more likely to piss them off.
In the past, I’ve been asked by bloggers and interviewers if it’s ok to use my work on their websites - nearly every time, I have said ‘yes’ - and then provided links that I want them to link back to, and on occasion, an unwatermarked image (in rare cases). This is good etiquette! Not only are you respecting the artist by asking first, you’re giving them the opportunity to give you the correct links back to their page - you really are helping to promote them! Usually, they will also promote your article on their blog, twitter, facebook, Tumblr too - so you’ll be getting free promotion too! Yay! Teamwork!
On occasion, you may also get the odd ‘no’ - and that’s ok. Some people will have their reasons for not wanting certain work promoted, and respect of that wish may actually get you something even better in some cases. (one example is of a commissioned image I drew for a lingerie website of a lady in suspenders - I was contacted by a porn-orientated website if they could use it in an article and I declined. They didn’t use it, which I respect - thankyou! But unfortunately, due to the nature of that website, I can’t give a link to it as my readership may be too young for it)
There’s also something else connected to this that I think I should share, and it does worry me - pretty much every piece of artwork of mine that people have used under ‘Fair Usage’ usually ends up on some cheap knock-off phone case or other tat. Without permission. And this really does infuriate me when I find out. It infuriates me even more when people then turn on me and tell me I’ve stolen my own work! This is because people will associate a piece of artwork with the first place they have found it, and if you’ve not been properly credited on it, then you’re scuppered. I’m still fighting that battle.
So, TL;DR - that’s understandable. So here’s a list of good Etiquette for using an artist’s work!
CONTACT THE ARTIST FIRST. The work in question may be personal work, commissioned work, or work they’ve made for a company which they may only had rights to display on their website (and if you just take it, you might get them into trouble - this has happened to me before). There may be a valid reason why they can’t or don’t want to give you permission to use it.
ASK NICELY DON’T DEMAND - and for crying out loud, don’t thrust the ‘Fair Useage’ doctrine on them, they will most likely think you’re an arsehole then and do everything to prevent you from using the artwork! Ask them nicely, explain why you want to use it, and ask them what site or shop they would like you to link back to - promote each other!
DO NOT ALTER THE IMAGE - if you need to crop it, ask first! Shrinking it down to fit on your page is usually fine though.
DO NOT ADD YOUR OWN WATERMARK - that’s up to the artist! It’s their artwork, respect that. don’t cover it in your own website’s watermark - people are on your website already! If someone sneakily nicks the image, it’s very difficult for anyone to find that particular blog post on your website once it’s off the main page. If you leave the artist’s watermark on there - you’ll be helping other new fans find that artist’s work at a later date if the image is stolen, and you’re helping to prevent that image becoming an ‘orphaned work’. ‘Orphaned Works’ usually results in other people taking the work and sticking it on a crappy phone case, and giving the excuse that they ‘just found the picture so I used it’ - not cool! Read more about Orphaned works on wikipedia http://en.wikipedia.org/wiki/Orphan_works
CREDIT THE IMAGE PROPERLY - A name and link back to the place you found the image isn’t good enough. You need the artist’s active web address! If you can find the original artist’s name, contact them! If you can’t find the original artist’s name, then use google to search for other examples of that image by dragging the image onto google’s search bar - it will search for other versions of the image in different sizes, and similar images - this is a very good way of tracking artist’s down if you also can’t remember their name! (and very useful for artists to find out who’s been nicking their artwork and sticking it on phone cases…)
SAY THANKYOU - it technically isn’t a requirement, but it’s good manners ;) And you never know, you might get some new fans from the artists you thank, and their fans - goodwill all around :)
EDIT - on top of all that, ‘Fair Usage’ is a US ONLY thing, and technically does not apply to ANY of my work! However, the UK version does. For the UK version (which you should adhere to for BRITISH artists or artists living in Britain) Please check out FAIR DEALING which details of can be found here http://www.copyrightservice.co.uk/copyright/p27_work_of_others#fair_dealing
Further down on the page is a segment on ‘Copyright and the Internet’ in respect to British citizen’s work online - this will apply to all british artists, so it’s worth reading up on that too - ALL WORK ONLINE IS COPYRIGHT UNDER BRITISH COPYRIGHT LAWS.
I hope that helps some of you out - both bloggers, journalists and Artists! I admit, they’re not rules, but if we can make this list into a sort of recognised guideline for displaying an artist’s work under ‘Fair Usage’, then maybe it can be more constructive for all. At the end of the day, it’s just common courtesy - but if you like someone’s artwork enough to use it in anything, then you should tell the person who did it - you’ll make their day :)
And just so you know - if you’re still too frightened to ask, the website I prefer people to link to is;