What is Fair Use?

During the last year, there has been a lot of press on what is fair use in art, photography, music and the written word. Fair use is a very complex concept because the law does not provide clear guidelines on what is fair use and what constitutes an infringement. Unfortunately many people believe the "old-wives-tale" that all you need to do is change art a certain amount and you don't have to worry about getting sued. However, what is allowed in fair use is more complicated than that and as attorney Joshua Kaufman says in his article Don't be a Copycat, "There’s no simple, firm guideline as to how much you have to change from one work to another to avoid infringement. Such statements as "All you have to do is change a little bit," "5 percent," "20 percent" and so on have no support in the law. Ignore them. The test for copyright infringement is whether the two works are substantially similar. Substantial can be looked at in two ways: quantitatively and qualitatively. Not only does the legal system look at the amount of material copied, it also considers the importance of the portions copied. . ."

Artist Shepard Fairey found out the hard way when he used a photograph of Barack Obama taken by Mannie Garcia for Associated Press as a basis of art for a campaign poster. His legal troubles are ongoing and will most likely continue for years. Read "AP And Shepard Fairey Settle Lawsuit over Obama Image; . . . " for more information on the lawsuit.

So the moral is to make sure that you have permission to use photography or art that has been created by others before using it in or even as a basis of your own art. Or better yet, don't use other persons work in your art.

Related articles:

"Is Fair Use Really Fair?" by attorney Samuel Lewis

"How Different is Different Enough" by attorney Joshua Kaufman

Making Mockup Products as Gifts

I'm so use to making digital mock-up products to showcase my art that I decided that it was time to make some REAL mock-ups as gifts for friends. That way I could give them a sample of my art on a product assembled by me.

I purchased some blank cardboard boxes at a local independent hobby store. The boxes I purchased were 3-1/4 by 2-1/4 by 1-1/2 inches with a snap on the lid but of course any size or shape can be used.

I created art to fit the top of the box and used double-sided tape to adhere it to the lid. White glue or even decoupage glue can also be use. To give the box a little pizzazz, I glued a ribbon and jewel on the bell. My boxes were decorated very simply but you can go much further to make them really standout. Craft stores carry so many embellishments for scrap booking that there is an endless assortment to choose from.

The final touch is to fill the box with wrapped candy. Potpourri, a candle, or anything else could also be placed inside the box. And once the candy has been consumed, the box can be used for other things or placed on a shelf as a reminder that it was received from a friend.

Have a wonderful holiday!

Joan

Studios of Successful Art Licensors

It doesn't matter where you create art (corner of the kitchen table, spare bedroom, etc.) because an artist can create anywhere. However, it sure is nice to afford a real studio and a backup team to help you do some of the dreary routine work in putting together collections, mock-ups and the millions of other things necessary to license your art. Artists that are REALLY successful have a team behind them. And they usually have a nice studio in which to create art and also space for their staff to work. I find it very inspirational to see the studios of artists that have "made it" in licensing. Below are links to studios of four successful artists. Check them out and dream of when you also will have a great studio and staff.

Marjolein Bastin - View a video of Marjolein in her Netherland studio as she explores and paints nature. She also has homes in Missouri, Cayman Islands, and Switzerland.

Mary Englebreit - View pictures of Mary's beautiful studio in a historic neighborhood of St. Louis, MO.

Shan Ogdemli (Pampered Girls brand) - To view a picture of Shan's office and staff, go to "About Us" pull down menu and then select "Brand Design."

Susan Winget - View pictures of Susan's staff in her charming multi-room studio in North Carolina.

Related article:
"Created Process of Extremely Successful Licensed Artists"

Tracking the Success of Top Art Licensors

I find it very interesting and informative to track the retail sales figures of art licensors to see the ebb and flow of their success in licensing. The only figures that I find available (without paying a fee) is published yearly in the Global License! magazine's April issue of the "Top 100 Global Licensors." These articles list all licensors such as product brands, characters, entertainment and art. Disney always tops the list. In 2008, products with Disney art sold at retail $30B (billion). Scholastic Media was the 100th top licensor in 2008 at $50M (million) retail. In 2008, seven artists were listed in the top 100 licensors which means that they sold over $50M at retail. Note: The information on the amount sold at retail listed in Global License! magazine is dependent on what is reported to them by licensors because many are private enterprises. Thus, there could be other art licensors selling more than $50M at retail that are not included in the article because Advanstar (publisher of Global License! magazine) was not informed.

An interesting side note: If you do a "rough" calculation on how much money an artist would earn on $50M at retail and lets say at 5 percent royalty on the wholesale price ("if" one-half retail), it would be a staggering $1.25M.

Below is a chart of ten art licensors that I have tracked since 1998. Notice that three of the artists no longer make the top 100 licensors list. That could be because they no longer sell enough to make the list or they have opted not to report their figures to Advanstar.

Tip: How to Accessorize Product Mockups

Making mock-ups helps manufacturers visualize how art looks on products and is a good marketing technique that many artists use. Whether mock-ups are created digitally and look realistic or sketched and not look realistic does not matter. All that is needed is to show how the art looks on different kinds of products. For some product mock-ups, it helps if they are accessorized so that there is no guess work in their use. Below is an explanation on how I accessorized some product mock-ups.

Shown is a mock-up of bathroom products with my coastal art. If I did not have tissue sticking out of the box, a toothbrush out of the jar, and a spout on top of the second jar it would be difficult to know the intended use of the shapes. The tissue box was created in Photoshop using the techniques that is shown in "Photoshop Tip - Using the Transform Command for Product Mock-ups" and "Photoshop Tip - Creating Gift Bag Mockups." While in Photoshop I created a slot on top of the box mock-up, took a digital photo of actual tissue, edited the photo, and placed it on top of the tissue box to accessorize the mock-up.

For the tooth brush holder, I created the jar shape and mapped the art onto it while in Adobe Illustrator by using the techniques shown in "Illustrator Tip: Mockups - Creating Uniue 3D Product Shapes." I took a picture of a generic shaped toothbrush, edited it in Photoshop, imported the jar that I created in Illustrator, added holes to the top of the jar, and placed the brush into one hole. The soap/hand lotion dispenser was essentially done the same way. In this case, I took a picture of a generic spout, edited it in Photoshop and placed it on top of the jar that was created in Illustrator.

Warning: If product mock-ups are too realistic looking,manufacturers may think that the art on them have already been licensed. To avoid confusion, I recommend that you use signage stating that the art is available for licensing.

Tips for Represented Artists - New and Not So New

An excellent point on what an artist that has recently hired an agent should do in order to jump start the licensing of her/his art and also the recommendation to continue marketing your art are made by licensing savvy lawyer Corinne Kevorkian. She originally posted her comments for the article "How Long Does it Take to Get a Contract After Hiring An Agent?" on the art of licensing linkedin forum and they are paraphrased below.

Corinne Kevorkian is currently practicing law in New York City. She was recently the President and General Manager of the Schumacher Division of F. Schumacher & Co., a leading supplier of decorative fabrics, wallcoverings, rugs and other home furnishing products. Before that she was Senior Vice President, General Counsel and Secretary of F. Schumacher & Co., where she advised them on all legal matters, including acquisitions and divestitures, intellectual property and licensing, real estate and employment matters.

Tips for Represented Artists

by Corinne Kevorkian

A corollary to the question on "How Long Does it Take to Get a Contract After Hiring an Agent?, " and one that is just as important, is how long will it take for products to hit the market once a license agreement is signed? That is your revenue stream and especially with the first time licensor, the likelihood of getting a significant advance upfront (especially in this market) is pretty slim. So you want to make sure that your first license is one where products can be introduced to market fairly quickly. It does not do you much good if your agent signs up a licensee quickly but the product development cycle time is two years which can be the case in certain industries. Getting a license agreement signed quickly may be important in luring other licensees into your program but most likely what they really want to know is 1. what of your art is on products and already in the market, and 2. what are the revenue/sales expectations. So it's important to take these factors into consideration in order to increase your licensing opportunities.

Also, do not leave all the marketing of your art to your agent. As an artist you know your art and the brand best, so make sure to partner with your agent to woo prospective licensees. Refer all prospective contacts/connections to your agent and hold your agent accountable! You want to make sure you know what your agent is doing, should insist on regular reports of contacts made, shows attended, etc.

How Long Does it Take to Get a Contract After Hiring an Agent?

During J'net Smith monthly Free Friday Q&A teleseminar, an artist asked "Once signed with an agent, what's a reasonable length of time to expect a contract?" That is a question that is often ask and the short answer is that "it depends." It depends upon so many variables (art style, art trends, economy, etc.) that it is difficult to predict when the agent will get a contract for the artist. And every art licensing agency has different experiences in getting deals for their artists. Read answers to this question by art licensing agents J'net Smith and Suzanne Cruise and you will see that "it depends."

J'net Smith

All Art Licensing

(Expanded from All Art Licensing’s Newsletter; Volume 1, Number 8 - Tuesday, November 17, 2009)

Answer: I assume you mean a first licensing agreement. Agents need time to work you into their sales cycle, which will include developing a plan, researching prospective manufacturers, and marketing your art via direct mail, trade shows, phone calls and other sales techniques.

The length of time it takes to sign the first licensing deal will also depend on how long it takes the agent to get out and sell you and your artwork. For example, did you come to the agent with art collections and a web site that the agent is excited to use “as is?” Most often some redesign and updating will be necessary.

If you have done your homework and are ready to work with an agent, then they may be able to get out the door selling very quickly. In this scenario, I’d say it should take between six months and a year to sign your first deal.

If you have found an agent that will start by helping you develop your property, it will take a bit longer. I have often worked with artists for three to six months, or more, to create and refine collections, prepare a plan, and develop key marketing materials, including the portfolio, web site, and possibly a brochure, postcard or booth design. Only after we have completed this phase, do I get out and market the artist. So now you are looking at six months, plus another six months to a year.

The other two elements that will either speed up or slow down the process is how much art you have to present to manufacturers and how many prospective licensees in various product categories are contacted at the same time. If your art works in multiple categories and your agent is able to present your art and mock-ups to several industries at once, it should speed up the process. Of course, your agent will determine carefully which types of products to pitch in the first wave, the second wave and so on.

It certainly is more difficult these days in this economy, so you need to factor that in as well. I believe that being prepared before the sales process begins is crucial today. You don’t want to step out without putting your best “face” forward in all areas; to do so will slow everything down. And you certainly can’t take back those first impressions.

Suzanne Cruise

Suzanne Cruise Creative Services, Inc.

Answer: Asking what is a reasonable length of time an artist should expect to get licensing contracts from their agent is a little like asking how high is up. From my experience, this depends on what the art that you are offering (or that the agent is schlepping around) looks like, the subject matter you create, the age group your work is geared for and then the all important question "what is the market (or consumer) buying at that point in time."

An artist I have represented for many years, Laurie Cook, does beautiful Santas. I was able to get licenses for them right away as it is hard for companies to find beautiful Santas and there is always a market for them. Although sometimes the market is stronger and sometimes weaker. Laurie also creates beautiful florals. I have had little success in getting contracts for them as they are just not the style manufacturers are looking for.

Another artist I represent, Gail Flores, retired from Hallmark several years ago as probably the best floral designer they ever had. In spite of the superior quality of her style and technique, it took me almost three years to get one really good license for her work...and then the flood gates opened. The reason? When I first started showing her work, traditional florals were not in style. Three years later they were hot and still are.

Another artist I know, Laurie Mitchell, has a female character called Listen Doll. It is a good example of how hard it can be to get licensing deals for certain types of art. It is a very strong character, very well developed, excellent text....but the character falls into a niche that can be very difficult to get in a licensing toe-hold. There are many really good "female" characters in the industry. But companies are reluctant to license them because they feel that they need to be "safe" in this economy even though the demand for an alternative female character (not too sweet, not too in your face) is certainly there. Companies think it best to err on the side of caution which often times means a "no" to a license.

Related article: "Tips for Represented Artists - New and Not So New."

Tips on Walking Trade & Licensing Shows

What You Should Know Before Walking Trade and Licensing Shows

by Suzanne Cruise

Suzanne Cruise Creative Services, Inc.

The number of trade shows that are put on each year is staggering. There is at least one trade show for virtually every product category you can imagine. The choices are unlimited. If you are just starting out in licensing, narrowing all of them down to the handful of the most worthwhile shows can be a daunting task. You first need to have some idea of what products your art would be suited for in order to cull out shows that would be a waste of time. For example, if your library of art consists primarily of beautiful florals, walking the Global Pet Expo is probably going to be a waste of time and money. Narrowing down the appropriate product applications is one great way to narrow down the shows that might be appropriate for you to walk. If you are a seasoned licensor, targeting the best trade shows to walk in order to find potential clients becomes much easier and often boils down to how much time and money you have to spend on attending shows, when these shows take place, and how many existing and potential clients are exhibiting at the shows. The number of licensing shows you can walk is quite small in comparison but the rules of the game are still the same.

As an artist, getting a badge to get into a trade show can be challenging, to say the least. Call the show management and ask the person who answers for information on badge registration. The phone numbers are always listed on the show web sites. Sometimes you are forwarded to another department but tell whoever you end up speaking with that you license your art to several of their exhibitors (if this is true) and that you are setting up appointments to meet with them. Ask them what credentials do you need to provide in order to obtain a badge. Since your occupation is one that falls through the cracks of the show's attendees, this approach works well in many cases. Another method is to pay your attorney to give you a document on their letterhead that states that you are the President and CEO of your company. The document lists your name, your company name and if you are a corporation (state that also), you are actively engaged in the sale and licensing of your artwork to companies that manufacture or distribute products utilizing such designs. Also your company is in good standing in the state of xx and has been doing business since xxxx date. That document and a business card will often suffice for the shows that ask for a business license. It is worth every penny that the lawyer charges.

Why walk a trade or licensing show?

Walking a trade show is the fastest and most efficient way of finding manufacturers who might be potential licensing partners. It is also a great way to see what trends, colors, and styles of art that are being offered in that particular industry.

For licensing shows, it is the most efficient way of finding a potential agent and a way to meet and establish talking relationships with fellow artists. It is also a very good way to find out if that show is worthwhile to exhibit your work.

How do you find trade and licensing shows?

Finding the various trade shows is relatively easy. Ask manufacturers which shows they (or their reps) exhibit in and if there are shows they (or their sales reps) walk. Another good resource are the local mom-and-pop gift stores that carry products your work can go on or that your work has been licensed to. These store owners have buying decisions to make and so they often will know the best shows to attend. I suspect many store owners would happily share this information and especially if you approach them on a day and time they are not swamped with customers. If they are busy, ask them if it would be more convenient to set-up an appointment to discuss trade shows. You can also try googling the type of shows you interested in finding by searching for licensing trade shows, gift trade shows, etc.

To find art licensing shows, read the article "Art Licensing Trade Shows." Also ask fellow artists what shows they have exhibit in and/or have walked and what were their experiences. You can also ask agents. Some of them are going to be more helpful than others but they certainly should know what are the major shows to find potential clients. This is also an excellent question to ask an agent that you are considering hiring.

What should you wear?

I usually wear nice slacks and shirt or sweater. You might want to throw a thin cardigan sweater into your bag as some of these shows keep the AC so low I swear they must have meat hanging somewhere in the building. I also always wear a nice jacket or a jeans jacket. Over the years, show dress has become very casual. I have been known to wear jeans especially if the weather is bad, but I try to keep my jacket and shirt/sweater, a little more formal to offset the casualness of jeans. If you go the jeans route, be sure to wear ones that are clean and crisp, especially if you do not know the people you are seeing. But it is always good to fall back on the adage "dress in a way that shows you are a professional."

Can You take pictures of booths?

I don't know of any show that allows you to photograph anything without permission. If you see a booth you especially like, ask the exhibitor if they mind if you snapped a shot of it. But be prepared, for many people will say no. With the explosion of cameras in cell phones, some people think they can act like they are talking on the phone but they are really busy taking pictures. Don't be a total jerk and act like this.

What do you look for when walking a show?

So you have committed to walking a show. What do you do first? If you have never done the show before (and even if you have), get a copy of the show directory well in advance. It will list all of the exhibitors and where their booths/showrooms are located. Some shows also list all of their exhibitors online and most shows will list the products they manufacture. Make a list of potential clients (by product) whom you want to meet or just check out. If you are fairly new to shows, my suggestion is to take your list and just go aisle-by-aisle or floor-by-floor and spend more time in the booths you have marked ahead of time. Familiarize yourself with the product offerings. Keep a list of ALL the companies whose products look like a fit for your work and even make notes to remind yourself of the various things that stood out with a particular manufacturer. If you are more seasoned in walking shows, definitely start well ahead of the show to set-up appointments with the art directors of manufacturers and allow some time to just walk the show in order to find manufacturers that you may not know about.

In walking licensing shows (especially those you may want to exhibit in the future), take a notebook with you and write down all the details that strike you about the show. These can include the various types of booth layouts, where is the most traffic, where is the entrance and what direction do people seem to go when they walk into the show, how the exhibitors interact with customers, what methods do the exhibitors use to draw customers into the booth, what are the exhibitors wearing, how did they display their work, how much (or little) did they display on their booth walls, how much lighting is overhead and in the booths, how are the tables and chairs positioned, etc.

Use proper trade show etiquette.

When I walk into a booth or showroom and have no appointment and if anyone asks if they can help me, I ALWAYS say no thank you. I then ask, "Do you mind if I look through your showroom (booth)?" Rarely will they say no. The exception to this are showrooms that have a desk/receptionist at the front door. You probably will not get by them without an appointment or without a contact name. And do not eat any of the food and/or drinks in the booths/showrooms because they are for the buyers.

If you are in a showroom and think your work might be suitable for the manufacturer, tell one of the reps that you would like to show your art to the person who handles art reviews AFTER (emphasize the "AFTER") the show. State clearly that you do not want to bother anyone during the show. Ask the rep for the contact information of the art or licensing person. Nine times out of ten you will score with this approach.

Use proper licensing show etiquette.

When walking shows, NEVER EVER EVER go up to agents and ask if they will look at your work when they are speaking to other people or even if their booth is loaded with people. NEVER EVER approach agents even if it looks like they are in a conversation among friends. Do not approach them UNTIL they are alone. ONLY WHEN THEY ARE ALONE or not working with a client should you approach them and ask if they have any time to look at new art. Some agents will take the time to look at your work if they are not busy or expecting an appointment. Some agents will never take the time to look at work during a show. You simply have to ask for their submission policy and abide by it. Some shows will not let you bring portfolios into the show at all. Ask about that policy before you attend the show. If you cannot bring a portfolio, have a tear sheet or small handout (preferably with your web site listed) that you can discreetly show and/or leave with the agent.

As far as talking to other artists who are exhibiting, I would suggest that you apply the same rules. They have paid money to exhibit in order to find new clients and schmooze with existing accounts. It is a show of courtesy and respect to let them do their work and only approach them when it appears they are not knee-deep in discussing their art with clients. I suspect the artists are just like the agents. Some are very forthright and helpful and some are very closed mouth and guarded.

Related article: "Finding Manufacturers that Licensing Art"