Saturday, November 22, 2014

Of Struggle and Doubt

David Palumbo

We often talk about the difficulty in creating art.  The careful attention to concept, craft, and all the little things that have to come together to make strong work.  We talk about how these challenges do not go away over time, that the life of an artist is (hopefully) one of constant growth and evolution.  Every so often, however, a good or even great piece might just… happen.  Like, almost on its own.  No stressing, no careful finessing, just smooth easy flow.  It is what we always want and, when we get it, will never trust.  It is a complicated feeling.

A year or two back I was talking with a friend who also happens to be one of my favorite living painters.  At some point we got on to talking about those odd moments when a sketch or painting just seems to tumble effortlessly onto the page and the subsequent distrust of these images.  He specifically mentioned a piece which, despite drawing praise from others, he felt conflicted over including in his web site because “it just felt too easy.”  Does that sound familiar?

Though I don’t imagine all artists feel this way, I suspect this is a feeling artists of all disciplines and skill levels will recognize.  I know for sure that I feel it and I always try to keep it in check but it usually gets the better of me and has caused me to under price, not show, or otherwise neglect certain paintings.  When I have shared them, it was with a sort of embarrassment because I felt like I just got lucky.  I didn’t actually earn that one.

The funny thing is at the same time I also feel that, in other people, those pieces which jump right out of an artist can often be their more genuine and interesting works.  In other people, those are the moments when the creative lightning is just flowing through them without second guessing, and that is cool to see.  So why do we, when it comes to our own efforts, feel it is only legitimate if we beat our head on a wall, even just a little bit, before seeing a satisfactory result emerge?

One possible answer is that most artists have a talent for magnifying the faults in their own work which is sort of how we ever get to actually be any good.  When it happens so fast, it is only natural to suspect that we have somehow missed something, let some critical mistake slip through.  Then, when not finding one, we dismiss the good qualities in the work as a fluke.  We’re embarrassed to stand behind the work because we worry that someone might … might what?

I think for me, it is a worry that it will look like I didn’t care.  There is probably some critical flaw in the design or the concept is hollow and I didn’t bother working harder to improve it.  This is firmly attached to the concern over what other people might think.  If it seems that we are not trying, not locked in endless battle with our demons (or at least our medium), will it diminish the result?  Strangely, while I can feel this in my own work, I will watch other artists and admire how gracefully and apparently without struggle they produce incredible images.  If fact, I prefer work which flows over that which appears labored.  When artists talk with admiration of others, it often might touch on this idea that their paintings seem effortless.

Another frustration in this is that I don’t enjoy the difficult parts.  I don’t want to struggle, but am suspicious when it is absent.  Don’t misunderstand this to be an essay on how painting is actually really easy but we have to pretend that it isn’t.  Most of the work which I’m really proud of was certainly difficult in one aspect or another and some were painful from start to finish.  Seeing those through to the other side brings with it a degree of satisfaction.  In some way, I’m sure that I learned from those how bearing the discomfort is worth it in the end and so I am suspicious when the struggle never quite materialized.

I think this can lead to a danger as well, which is the habit which some people have (not just in their art but in their lives) of adding unnecessary difficulties.  Besides under-valuing results which came easy, we might over-value work which took a great effort and so some will place unnecessary obstacles in their own path.  Again, this is easy to see in others and not so easy to find in ourselves. 

Of course, as mentioned in the beginning, an artist seeks growth and struggle is an inevitable step towards growth.  I‘d like to think that, so long as the struggle in the work is about pushing ourselves to better achieve our intentions and discover something more personal and unexpected rather than just for its own sake, the struggle is healthy.  Perhaps, in the end, that is what sits at the root of any embarrassment towards those occasional easy wins.  That fear in the back of our thoughts that, if we allow ourselves to be satisfied with the ones that come easy, we might stop working towards that ever elusive next level.

Maybe it is best to always invite the struggle of growth, to always make room for the discomfort of self-improvement, but to also accept those moments of easy success as a reward and a sign that we are indeed moving forward just a little bit further each time.

Friday, November 21, 2014

The 13 DOCTORS (a 52 Weeks Project series)

by Greg Ruth

As part of my ongoing self-assigned weekly drawing thing I do under the title, THE 52 WEEKS PROJECT, I decided to take on a series of portraits of everyone's favorite Time Lord, the Doctor himselves. Aside from my geeky admiration for the series, especially of late, (sorry folks, I know it's the fashion- not a Moffatt hater), The character brings everything you'd want to a portrait series like this: a consistent, theme specific group of completely distinguished individual characters. So. I had the subject in place, but the real motivation was in fact me trying out the full extent of what I could do with my newfound love for the marvelous Blackwing Palomino graphite pencils, and wanted to see how far I could take them. Since I have a rather unhealthy knack for hyper-detailed drawing, which my usual tool of the sumi brush helps keep in check, I wanted to explore the idea of super-realism and manipulating the photographic qualities it invokes by manipulating some basic darkroom and camera notions of depth of field, focus and visual attention. The first go at this you see here below in the form of a portrait of Bela Lugosi as Dracula. I wanted to shorten the depth of field so much that something the tip of a nose, or in this case, an ear, would come forward us as sharpened and in focus leaving the rest of the face to fall away into a fog of space and blurriness. All of this really then is an experiment in a new technique, but its opened up a lot of doors to new ideas and other projects. The rule of the regular 52 Weeks Project remained the same: A new portrait posted live each and every monday morning without missing a deadline. To date in now four iterations of this exercise, I have not missed a week yet, (knock wood). But instead of emailing them out- because email has both been subverted by messaging apps and the horrible terrible assault of spam, I created a web page devoted to the series and posted to facebook, tumblr and twitter. I do miss the email responses the old way provided, but things change and we must adapt.

Peter Capaldi
William Hartnell
I decided to start with the latest iteration, Peter Capaldi, and then do William Hartnell as the second piece so I could set me goal posts between the two. And while the differences between these two are stark, the rule got cheated when the content demanded it, as you will see below.

I'm all for fences and rules until the get in the way of purpose, then they should be scuttled. Especially when I'm the one making the rules. I mean if you can't enjoy being boss, then what's the point right? This is after all, a self-assignment and as long as I stick to the consistency of medium, size and shape and delivery date... the rest is flexible case by case. My favorite turned out to be Matt Smith, perhaps because of all the Doctors, his is the face I loved the most. A quirky madcap nutty professor man-child time-God will always win the day with me. Plus he made fezzes and bow ties cool again (as if they ever weren't).

Matt Smith

I wanted to make sure to capture each of these characters at their most essential, get them at their best so to speak. But also to avoid duplicating an exact already present portrait. Each also needed to be the same, front-facing approach and to the same scale. So this meant sitting down in front of certain episodes and compositing a final set of traits for each. I am familiar with most of these fellows, but not all. The most difficult tended to be the middle three or four- mostly the post- Tom Baker era to Christopher Eccelston. Getting a grip on those guys was rough at times. Especially for those like Sylvester McCoy who began their tenure in a vastly different place than where the ended up. Researching these turned out to be best kind of fun, and thankfully since so much time has passed, there was more than enough perspective and insight as to their place and context in the long line of those that came before and after. So like most curious undertakings, I ended up coming away learning a lot more about the subject of the series as well as the new technique for executing them.

I also decided to cheat the canon slightly with Moffat's cheating by featuring John Hurt's War Doctor as the proper #9 off setting the following four's count as a result. Its a storyline that came forward when Eccelston arrived and had been an underlying character burden for every iteration after making him the sole survivor of a race of people he himself killed off. It added a darkness and a core to his purpose that haunted every action and explained his travelling. One of the themes for Well's TIME MACHINE that I've always loved to see crop up was this notion of time and catharsis. Can you move through enough days and weeks to escape regret as if it were a locale rather than a simple emotion? Could a genocide like the Doctor ever outrun his actions or save enough people to reconcile that genocide? It's dark stuff but it's one of the aspects of the character I really love: The Doctor is a bit scary and spooky. And I do love me some spooky. 

As a disclaimer, I also really came back to the fold of Who via R.T. Davies' return with Eccelston. These Nu-Whos are the ones I much prefer to be honest. And of them all I am a Moffat man all the way. That said one of my favorites of all really was Patrick Troughton's, and it follows given my Matt Smith love as in many ways he is Smith's precursor. Troughton also had I think the greatest burden to carry. He was the replacement for the show's iconoclast, William Hartnell and because of him we have the whole idea of regeneration to begin with. If he'd had blown it with his audience the show would have died soon with him. Instead he did what is rarely ever done well: He took a role set in marble by a previous actor, and re-owned it for himself. He may well be the first popular actor to really do this, and set the stage for all that followed as a result. His being so different in character also meant that difference was sought after, despite the knee-jerk desire to see the same type repeated over and over... Pretty damned impressive I think. 

While I grew up seeing Baker's back in the 1970's, it was always by accident late at night on pbs mostly because it scared the hell out of me. With his portrait I truly cheated the rule of blurriness. He should be a good deal more fuzzy than he is here, but as much as his hat and scarf and crazy hair are icons of his person, those wild mad-house eyes and chompers could not be ignored. So I sharpened focus on these areas specifically letting the need of the content rule over the rules of the project. 

Tom Baker

So. How were these made? Well I had some nice cotton rag paper cut into 8 1/2 x 11 sheets, and after some quick mapping marks and under-sketching, set out working on them in earnest. I never had time while doing these to scan progress shots or step by steps I'm afraid. I seem to only think of doing that kind of thing long after its too late- like now. But with the earlier portraits, I would find the areas of most detail and begin there. I always like to start with the eyes, because that's where it all swims or sinks, really- especially in portraits (and taxidermy). You blow it with the eyes, the rest doesn't matter. And there were times where I had to tear it up and start anew- I think I had to do David Tenant at least three times to get him right to be honest. In any case, once decided, forever learned. I tened only to have to redo one of these once more after this )I spilled single drop of water on the face of John Hurt right after I finished it, and it meant having to do him all over again. Or live with what looked to be a sizable zit below his eye. Which I could not.

David Tennant

It would be the latter ones that made the challenge of drawing out of focus the most tricky. Largely because it robbed the pieces the usual crutches of detail to denote who they were. I honestly wasn't sure if they'd "read" at all given this technique. How blurry could you get before they simply got lost to the cloud of graphite? Turns out with these distinctive fellows, you could really out there and the center would hold. Hartnell was the most obvious success of this in that he's almost entirely identifiable in silhouette given his hair, gate and costume. With these and the bliurriest aspects of any of these portraits I used the side edge of a sharpened pencil to lay down, very gently, the marks. Once that was done I would immediately use the high tech studio tool and secret weapon of all of these... my finger, to then rub the hell out of those areas and blue them.

John Pertwee

So in the end, we have our family. I confess after doing the last of these it made my eyes water as they consistently attempted to focus the out of focus drawings. Something which I was happily surprised with. I love conceptual theory and science around how we see and perceive the world, and this pointed out and wiggled a weird little part of how we see. We as a hunter species have our perceptual vision centered around focus and isolation- this comes from our ancient survival necessity to pull prey and threats out of an environment so that we could properly eat or run from them. We still carry that legacy with us today as seers, and it uniformly dictates how we see the world on a daily basis. That said, this habit can be suspended or at least unlearned for short periods of time, the greatest surprise from these was how it tickled that singular aspect. I love how it makes me squint even though I know squinting will not bring them into focus. The art bites back. Every time I do these

So this is certainly a thing I plan of taking further, and while we now leave 
these Doctors behind, I look forward to seeing how far this new method can go. For all of you who rode this road with me, thanks for keeping to it. If you'd like to pick up the last remaining portraits you can do so by visiting the shop... HERE.

If you'd like to see the permanent online archive of the whole series, please visit HERE

Thursday, November 20, 2014

Kelley Hensing @ Last Rites Gallery

Kelley Hensing    Revenge of the Wild  oil on panel

 This Saturday will see the opening at Last Rites Gallery of a wonderful new body of work from painter Kelley Hensing, The Animal Within.  Kelley's work opens a dialog between humanity and the natural world and raises the questions, are we natures caretaker or its destroyer?  Are we one with the world or living a life disconnected?  There is a wonderful and powerful play of imagery in these works which leaves the questions unanswered.  Truth is in the eye of the beholder and the part we play is indeed left to our individual intent and actions.

Kelley's imagery blends together dynamic figuration with renderings of the natural world.  Her careful consideration of imagery selected to resonate with the custom, found frames for each oil painting adds to the mystic and beauty of the objects as art, and speaks to her high degree of craftsmanship and detail.  Care exhibited in her craft is mirrored in the passion in the content of her work.

Kelley shares her thoughts below:
I consider myself a lover of nature. To explore a forest, to watch wild animals in their environments, and to admire their uniqueness, reflects our origins as humans and inspires in me a sense of divine mystery. At the same time, I see how we dominate these beautiful things and put them to personal use. We’ve altered animals to serve us, we mow down entire landscapes to enable more humans to thrive.  In the process we often distort and cripple nature in our wake.  Because I’m not the one personally doing these things I somehow feel exonerated, but this is the big red curtain that feels more comfortable left in place.   I enjoy meat almost every day without connecting with where it came from or how it got to my table.  I allow someone else to birth hoards of animals and to do the slaughter for me. Yet I recoil at the thought of killing something, and donate money to save pets that have no homes.  For myself and many of us this is an unintended hypocrisy, and in defense of being human we have a right to thrive.  Yet now that we’ve become experts in human survival, I feel it’s vital for the long-term existence of ourselves and the plants and animals around us that we begin rekindling a true reverence for the natural world.  The best way I know how to communicate this is through my artwork. 
I recall a moment a few years ago where a pigeon was fanned out in death against some pebbles.  The combination of beauty and decay was distinct, fascinating.  I took it’s picture.  Death must have been invisible to me before, because now these dead and dying birds began showing up on my radar.  I started documenting them.  I found one under an overpass that someone had swaddled in paper towels. Another was half alive and half buried in leaves in a gutter.  A good number of the deceased were indirectly donated by Mitsou the cat.  It occurred to me, while these birds were experiencing their final moments of life, most of us living were walking right by, unaware that a solitary ending was taking place.  This began suggesting all sorts of tangents about death to me, both in a personal way and in the view of the human experience as a whole.  Will someone be around to care when it’s my time?  I wonder if it will be violent or peaceful?  Does anything happen after that?  Birds are a seemingly universal symbol for the human spirit, so as I amassed my somewhat morbid collection, the artist in me began searching for ways to turn this into art.  The appropriate place turned up when I found a way of merging the bird portraits with a related concept I’d been waiting to create of a divine death tree. The result is “The Tree Where the Birds Go To Die”.
The Animal Within
November 22- December 27th, 2014
Opening reception with the Artist, Saturday November 22, 7-11pm
Last Rites Gallery
325 W. 38th Street
between 8th & 9th Avenue
New York City

The Tree Where the Birds Go To Die   Kelley Hensing  oil on panel
Kelley Hensing    Paradox    oil on panel
Kelley Hensing      The Venus Twins       graphite drawing

Kelley Hensing    Parcae- Three Fates   oil on panel

Wednesday, November 19, 2014

Grave Sifter

By Jesper Ejsing

Here is a magic card illustration I did a while back. I got to design some kind of evil forest monster rooting up tombstones with undead crawling up from the ground.

In the thumb stage I established most of what made it to final. I chose a very low horizontal line to make us look from below up on the monster making him seem more gigantic and impressive. I have a soft spot for monsters without eyes. i think it makes them more primal to be equipped only with the bare necessities for eating: mouth and teeth. Eyes are too personal.

I ink the whole thing up on paper and add black acrylics to establish the values. From thumb to sketch I flattened out the perspective even more. I removed the zombie to the right since I wanted the focus to be on the 2 ones underneath him. I put a stone and a tree to the left in the foreground to make it appear that we are looking from behind something. It puts the viewpoint more into the scene.

I wanted the mood of this image to be very grey and without colors. As if the scene was lit only by moonlight, but I needed a strong accent color to show some magic element. Adding the pinkish tone to the mouth helps draw attention to the facial area. I think that little contrast color in a green/greyish palette helps wonder isn pulling the overall image away from being monochromatic. By having ONE off color you read the image as deeper and more colorful even though it is mostly build up by very simple color choices. Also the fact that all values was chosen beforehand really makes the coloring only a matter of creating texture.

In the final painting stage I scrapped the pine trees and replaced them with strange willow-like trunks. Also I replaced the leaves and branches on his back with the same kind of branch like shapes.
I am pretty happy with how few stages there are between the first thumb and the final image. I didn't have any stage between the thumb and the drawing on the paper I painted on. By transferring only a thumb instead of a more rendered sketch I keep everything fresh and alive and lets the dynamic from the thumb translate all the way to final...that is, when everything goes well.

Tuesday, November 18, 2014


Pareidolia is a psychological phenomenon in which people find significant meaning in random stimuli.  Such as seeing human faces in random shapes, like clouds.

Elido Turco is an Italian photographer who uses our natural propensity for finding faces, to create surreal, fantastic creates out of organic elements.

Using just a camera and a mirror, he creates arrangements that are full life and narrative.

You can see more of these 'forest faces', along with Elido's other work, on his Flickr page.

Monday, November 17, 2014

Some Basics About Publishing Part 4

by Arnie Fenner

How do you find a publisher, particularly if you're playing rōnin and representing yourself without an agent?


If you're already working in the field in some way, painting book covers or gaming cards, you already have some sort of relationship with an art director or editor: it never hurts to tell them what you're thinking of and ask for suggestions. Provided you've been a pro and gotten along well, most are willing to provide tips and perhaps make introductions.

But let's say you don't already have a connection in the industry. First, note the publishers/imprints for books along similar lines to what you're planning to do by searching online or looking at catalogs or visiting bookstores. Peruse both the art and genre sections (or children's book departments if that's your focus) to find out who is doing what. Amazon is a given, but Bud Plant and Stuart Ng are both great starting places; your local Barnes & Noble or independent bookseller are wonderful resources.

Once you have a rough list in hand you can begin to research specifics: submission guidelines, preferences (will they take submissions via email or strictly as hard copies?), and contact information. Everybody has a website, but books like Writer's Market—and Artist's Market and Children's Writer's & Illustrator's Market, too—can save you a lot of time and be quite useful (though given changes that can take place between the compilation of material and publication they're never 100% accurate).

The list of publishers who either specialize in or have lines devoted to art books is long and should probably be the first you pitch your proposal to, but there are also publishers who sort of "dabble" and produce an art book occasionally when it seems to fit in with their programs. Boris Vallejo's first book was released under the del Rey imprint and Rowena Morrill's came out from Pocket and neither publisher were (or are) particularly known for their art monographs; comics giant Dark Horse is responsible for wonderful books by Charles Vess and Eric Joyner so you can't really cross any publisher of your search list without doing your homework. No one can know everything, no one can know everyone, but networking with fellow artists—purposefully going to conventions and exhibitions where publishers, editors, and art directors are in attendance—will provide contacts, suggestions, and insights that you'll never get sitting at home cruising the internet by yourself. Remember, publishing is personal and a little face time at a show can open some doors that might otherwise seem closed.

Fair Use. What can you put in your book once you've got it sold? What can't you? I'm going to take a deep breath and try to keep this as brief and clear as I can in the most general of ways: please keep that in mind.

Essentially, the Fair Use Doctrine grants limited use of material copyrighted by others without getting the permission of the rights holder. Sometimes the owners grouse, sometimes they have lawyers rattle sabers and send Cease & Desist demands to try to scare the users, and sometimes, yes, they sue in the hopes of attaining a settlement to their satisfaction without actually going to trial. Because believe me, corporations or estates or individuals never want to go before a judge and/or jury in a Fair Use case. Why? Litigation is horribly expensive no matter which side of the fence you're on, the outcome is never predictable—and, historically speaking, the legitimate Fair Use defense wins cases more often than it doesn't. Lawsuits are public records and if you lose…everyone knows it. Routinely Fair Use is used for works of criticism, parody, news reporting, education, research, historical documentation, archiving, and scholarship. Title 17 of the United States Code of Copyright, Section 107, outlines the "four factors of analysis" that the courts use to determine the difference between Fair Use and infringement. What are the four factors? Click and read.

Above left: DC Comics was not happy when EC parodied Superman (brilliantly written by Harvey Kurtzman and drawn by Wally Wood) in Mad and threatened litigation. Publisher Bill Gaines talked to his attorney who advised him to thumb his nose at DC, which he did. No further action was taken, other than Kurtzman poking DC when Batman got the same treatment several issues later: the strip featured notes and signs in various panels saying, "This is a PARODY! You know what a parody is don't ya?" Ironically, many years later Mad became a part of DC, which has happily reprinted the classic comic many times. 

Fair Use also applies to "transformativeness," which happens when something that might otherwise be considered a derivative (and thus protected) work spinning off from a copyrighted property, actually transcends the original in some way or provides new insight about (or way to view) the original that would not be available without the transformative work and ultimately benefits the public as a result.

Damn. That all sounds complicated, doesn't it? Well, that's because it is. As with all aspects of the law, everything is ruled by specific statutes and legal precedent and the interpretations of same. What might seem like absolutes are only such until challenged—which is why there are no black and white absolutes when it comes to the law, but rather constantly evolving interpretations and reinterpretations as new additions are made and new precedents set.

Okay, let's look at this several different ways. You've been painting book covers and want to do a  collection of them. Unless there's been some weird language in your purchase order or contract, you can do whatever you want, not only with a book, but with prints, calendars, T-shirts, or whatever. It does not matter whether you've been illustrating Harry Potter or Game of Thrones or anything else that has a high profile and possibly multiple licensing programs, if you didn't reassign your copyright the art is yours to do with as you will—and that includes putting them into a collection of your art. Within, naturally, certain parameters.

You can't design or market your book in such a way that it causes confusion among consumers. It's easy to muddy the waters and inadvertently imply authorization or license from a legitimate rights holder, either corporation or author, where none exists—and that's a huge no-no.

Say you've painted 50 Stephen King covers as a freelancer; you can certainly take them all and put them in a book, but you can't market it in such a way as to make it seem like a Stephen King book. You can't emblazon *STEPHEN KING!!!* big on the cover and you can't imply in some way that King is somehow intimately involved unless you enter into a license with him. (If someone wants to do a book about King, including any illustrations based on his fiction, that falls in the realm of "scholarly" or "educational" purpose and is permitted under the Fair Use doctrine, including the use of King's name in the title—"The World of Stephen King"—but obviously not as the by-line. Again, it's about King, not by him and that has to be made crystal clear to the average Joe looking at the book.)

Above left: Disney's Tigger. Above right: Dan LuVisi's Fine Art (and legal) revisioning.

Someone had asked earlier about Dan LuVisi's series of revisions of iconic cartoon (and Sesame Street) characters that formed the basis of a gallery show and which were widely distributed on the web: how is that allowed? Easy: the works were transformative—reinterpreting (editorializing in a sense) the characters in an entirely different way from their original incarnation or intent—and as such, protected as Fair Use. He did not merely copy characters, he changed them significantly allowing for a different context and evaluation, prompting a new "conversation."

Above left: Donato's book added dimension to Tolkien's fiction while also chronicling Dan's art and serving as a reference for scholars and researchers of his career.

Similarly, Donato's Middle-Earth: Visions of a Modern Myth is transformative (and thus protected by Fair Use) because he was revisioning J.R.R. Tolkien's words as pictures, providing his own personal commentary and analysis and discussing the illustration work he had done for various publishers. Tolkien and his publishers never created a "Lord of the Rings" character art style guide for licensing (thus locking in a specific look that could be copyrighted) to cause concerns of infringement. Virtually all of the character descriptions—from Gandalf's pointy hat to the features of the Orcs—are generic and Public Domain by this point and Tolkien's name does not appear on the front cover or in Middle-Earth's marketing (so there is no confusion of authorship) nor does his text appear in the book. Donato's book bring's something new, unique, and ultimately valuable for readers to the table and, as such, is permitted.

As mentioned above, if someone—author, estate, or corporation—wanted to sue over a similar project, there's nothing to stop them (other than common sense). Including a credit to copyright owners is not an invincible protection against litigation. This is America: we sue all the time, regardless of grounds. Some estate owners of works that have lapsed into the Public Domain have tried to maintain control over the properties (and demanded fees for permissions from users) by trademarking unique names in the works willy-nilly and there are still cases winding their ways through the courts determining whether copyright status trumps trademarks: we'll see what happens (the Betty Boop case is one of the most interesting to watch). For the most part it's an attempt to game the legal system by intimidating plaintiffs with less money fearful of fighting a costly legal battle, but recently the Supreme Court let stand a Court of Appeals ruling that the bulk of the Sherlock Holmes characters and stories published prior to 1920 were in the Public Domain. In a repudiation to the Arthur Conan Doyle estate, Appeals Court Judge Richard Posner stated, "The Doyle estate's business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the 'rational' writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expense, in challenging the legality of the demand."

You can be sure that the "owners" of other Public Domain characters had a stiff drink when the news came out.

One of the more famous cases in which an author won a lawsuit against a publisher of a transformative/Fair Use book was J.K. Rowling's/Warner Bros.' 2008 suit against RDR Books for the Harry Potter Lexicon. Ms Rowling prevailed not because such a book was not allowed under Fair Use, but because the author had used too much of Rowling's copyrighted text in it. In his ruling for the author Judge Robert Patterson rejected many of lawsuit's rights assertions and was careful to say, "While the Lexicon, in it's current state, is not Fair Use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled." RDR subsequently revised the book, removing Rowling's text, and republished it in 2009 without challenge.

But what if you have signed away your copyright? Say with art for game cards or comics or advertising?

Well, you can still use the art (at least some of it) in your book…with limitations.

As mentioned earlier, a collection of an artist's work is generally seen as historical, educational, and as scholarly reference. If part of your career includes concept art for, say, Avatar or drawing covers for The X-Men you are allowed to include some examples in a retrospective book about your career with the proper copyright credit. Precisely how many pieces you can use without needing permission or tipping over to infringement is a little murky: percentages are sometimes cited, but they're largely meaningless and nothing is carved in stone. Basically, "some" (perhaps 10–15% or so of the art in a book owned by another single rights holder) is generally viewed as "okay," whereas "a lot" will probably illicit an angry legal response. What you definitely can not do is publish a book of only your Avatar or X-Men art without the permission of the copyright holder. Nor can you use any work that is copyrighted by another for your book's covers or in the advertising for same: such usage confuses consumers as to the actual ownership of the property as well as infringes on rights sold to other licensors (it's competing with them by using their own property) and is not allowed. Fair Use flies out the window when such use undermines the rights of the legitimate copyright owner.

Above: Jon Foster's collection r/evolution included work from all aspects of his career—books, game cards, comics, and film—and, as a retrospective reference book and because all the rights holders were credited, the use was all perfectly legal.

When in doubt, it never hurts to talk to your clients, tell them what you're planning, discuss any concerns, and get formal permission of use in advance. Remember, publishing is personal and most are willing to work with the artists. Yes, sure, you'll encounter the occasional buttmunch; there are some clients who behave like the albatrosses in Finding Nemo chanting "Mine! Mine! Mine!" as a matter of course even though they don't have any legitimate claim. Better you find out who the potential troublemakers are in advance rather than be blindsided by a letter from some legal department down the road—and you can always secure the services of counsel to negotiate use on your behalf if your own attempts have stalled. But for the most part, clients tend to be cooperative and helpful, particularly if you've maintained a good relationship.

Likewise, you can not whip up a bunch of paintings featuring Marvel superheroes doing typically Marvel superheroes stuff and publish them in a book, regardless of if you've ever worked for Marvel or not. That's blatant infringement; there's no parody, commentary, transformative, or historical context, it's merely trying to cash in on something you don't own. As I said with my earlier post about copyright, an artist can draw anything they want any time they want, but there are limitations as to what they can legally publish or somehow distribute. The artist has to create something new, create an entirely different context and understanding, something (as I said) transformative, not merely capitalize upon the work of or exploit the property owned by others.

Painting Batman fighting the Joker is not transformative; painting Batman marrying the Joker could be (provided DC didn't already do it themselves).

Yes, you can go to conventions and see any number of artists selling sketchbooks filled with new drawings of various companies' characters without their permission, but that doesn't mean it's legal. Those artists are gambling that they're flying under the copyright owner's radar and can get away with it—and for the most part they are and do. But anytime Disney or Warner Bros. or any other rights owner wants to crack down, they can. And you do not want to be standing at Ground Zero if they drop the bomb.

That's the bare bones of Fair Use. Naturally there are plenty of grey areas and if you have any questions or worries regarding a project, definitely seek advice from an attorney well-versed in copyright and intellectual property law.


Saturday, November 15, 2014

Odd Nerdrum Opening Tonight in LA!

by Eric Fortune

"Crossing the Border" 81 x 101" oil on canvas

It's been almost ten years since there's been an Odd Nerdrum exhibition in the LA area.  If you're in the neighborhood I would highly recommend taking advantage of this rare opportunity to see some Odd Nerdrum Originals.  The opening is at Copro Gallery.   If you're like me and not in the area you can check out the work online here.

Artist of the Month: JMW Turner

-By William O’Connor

Bio pics about painters are notoriously disappointing, (The Girl With the Pearl Earring 2003, Klimt 2006, Goya’s Ghosts 2006 et al.)  There are of course a few exceptions, (Sunday in the Park with George 1984, New York Stories: Life Lessons 1989, et al.)  The reason I think for this loss in translation is the fact that the act of painting is rather boring.  Those who understand painting know that it can comprise long tedious hours of monotonous craft sitting in a chair.  This usually does not lend itself to compelling cinema and even the best films merely try to translate the beauty of the paintings into cinematography.  The opposite holds true for music, where the act of the craft is inherently theatrical and makes for excellent films, (Amadeus 1984, Walk the Line 2005, Coal Miner’s Daughter 1980, Impromtu 1991, et al.)

So I am cautiously optimistic that the new film Mr. Turner (due out in limited release this December) starring Timothy Spall will do credit to its eponymous title, the legendary artist JMW Turner (1775-1851).

Turner is regarded in the art world to be one of the greatest masters of painting.  Studying at the Royal Academy as well as in Paris Turner experienced great success with his work throughout his career.  His later work with its abstract expressionistic application became an inspiration for many of the ground breaking Modern artists of the late 19th century.  Like his paintings the man himself was regarded as an eccentric iconoclast.  His paintings often depicting the violence and kinetic energy of the new industrial revolution that was growing around him, illustrating the impressionistic movement of nature in the very forceful and animated brush strokes he used.

Today the works of Turner are some of the most valued paintings in the world.  The Tate Gallery in London boasts the largest collection, but other museums hold his works in their collections. The opportunity to see these magnificent paintings is one that should not be missed. 

For an excellent documentary of Turner watch the Power of Art episode:

And a clip from Mr. Turner that makes me think of Set-up day at Illuxcon: