Jen Barbati was recently thrown a curve ball from one of her buyers, which left her speechless.
Here’s what we know
Two years ago, this buyer purchased a giclée of one of Jen’s paintings. It just so happened that Jen had a postcard made up with the same image. She happily gave the buyer a stack of the postcards to hand out to her friends.
Fast forward to late last year. Jen again runs into this person, who proudly proclaims that she had liked the image so much that she started framing the postcards to auction off in fundraisers for her nonprofit organization. (Re-read that sentence. She's been auctioning off framed images of Jen's postcards without Jen's knowledge or consent.)
Jen is so shocked that she can’t say anything. If she had only been asked, she gladly would have donated. Jen is a wildlife artist and this is an organization she strongly supports!
The woman is a pillar of the community. And, again, Jen supports the cause. It fits nicely with her niche market and she wants and needs to stay on good terms. Still, Jen wants to make sure that this woman knows that it was pretty uncool to do this without the artists’ knowledge.
Here’s what we don’t know
We don’t know whether Jen’s name (which was printed prominently outside of the image) was cropped during the framing.
Likewise, we don’t know whether Jen was given credit in any form.
Here’s what we can deduce
We’re pretty sure that this woman intended no malice. She just wasn’t thinking about Jen–only herself and the organization.
We also know
We know that anyone can pick up a postcard and frame it and we’d have little control over it.
We also know that it would have been best to address this with the buyer/purloiner when Jen first learned of it (late October).
Here’s what Jen’s going to do
Jen said she is going to contact the woman and ask for a meeting. When I asked her if she was comfortable with that she said “Yes! I do much better in person than on the phone or in writing.” Great! Jen knows her strengths.
Jen is going to open her conversation with this woman by telling her 1) that she’s thrilled she likes her giclée so much and 2) that she was very happy to hear that her postcards were helping to raise money for such a valuable organization. This is important. Jen isn't going to lead an attack. She is genuinely happy about these things and she wants to make sure this is conveyed from the start.
Then she’s going to say something like: “I’m curious. Can you tell me how the postcards were framed?” And “How do your auctions work? Was my name printed anywhere? Was it on the back of the framed image?” She's not going to assume anything. She needs answers before she can proceed.
Armed with these answers, Jen will be able to know which direction she needs to take the conversation. She wants to let this woman know that she would like to support the organization however she can–as long as she's given proper credit.
While I’m not an attorney (Let's be clear on that!), I did advise Jen to use the term “copyrighted image” in a non-threatening way. This person didn’t make the copies of the image, so an attorney would have to address if any laws were broken. But she needs to know that the artist owns the rights to the image.
Sure, Jen could let it go–be happy about helping to contribute to this organization. But folks, if we don’t educate others about how art and artists work, nobody will. It’s part of your job (yes, job) to educate people. Jen is doing all artists a favor by talking to this one person instead of staying silent.
Any more advice for Jen?
24 thoughts on “They did what with your postcards?!”
Since no copyright infringement is involved, there is not to much one can say about this. The postcards were given away, and since what one does with items after they are released is up to the end-user as long as rights were not infringed, especially since no contract was made. Ms.Barbati might want to offer to do limited sets of pictures for this organization for fund raising purposes where she can specify how they are to be framed,etc. as per contract and then she would be able to be paid for her work. When you hand out postcards for free you give up any rights as to how they will be displayed, sold, or resold : kind of like used CD’s or DVD’s. Bottom line is she gave the cards away to promote her business, there was not a contract involved.
In the future and for her meeting, she might would offer a set or number of sets of her prints( Limited edition, which she should print and possibly frame) to this organization, specifically done for them. Also on future postcards, she might would insert copy to the effect ” these are for artist promotional use only not for resale”, which unless she finds someone reselling them doesn’t mean much, but would put her in a better position if this situation comes up again. No copyright infringement was done here.
Well that is a shame but Jen had every opportunity to do this herself. In fact, she can control how many copies are out there. She should be happy that there is now a decent distribution of her pictures with a perceived value. This should help her future business and she should stop being worried and use this situation to her best advantage.
Yep, does not sound like any sort of infringement at all. The client could have taken an original painting she had purchased from the artist and then given it to charity for an auction with no mention of the artist that created it, or she can turn around and sell it for a higher profit to a 3rd party. As long as the person is not reproducing it themselves they are free to do anything with prints that are purchased or given to them. I agree the proper approach would be to come from a place of generosity, and see how Jen can also support the non-profit and possibly gain a little control on how she is shown in that arena.
I can’t see that there is anthing this lady can complain about. She gifted the postcards which were in effect sold on as a second hand item much like a Picasso might be traded. Or indeed much as the buyer would have the right to auction for charity the original work. Her copyright has not been breached. If she does not want this to happen she would need to make the gift conditional.
I just heard about this story on Twitter. While no laws may have been broken, it’s unfortunate that Jen Barbati has to deal with it at all.
There’s an important issue of trust here, particularly since a nonprofit organization is involved. Nonprofits need donations and volunteers to survive. If an organization gains a reputation for a lack of generosity themselves, they risk undermining their relationship with their community.
Since there’s a personal relationship between the artist–who holds copyright on the original image–and the person auctioning off the reproductions, I’m surprised Jen’s buyer didn’t do her the courtesy of asking permission.
I suppose the moral of the story is that artists need to put a copyright notice and “not for resale” on the back of their postcards.
I hope the story has a happy ending, and I completely agree, Alyson, the conversation needs to happen. Education is critical.
I agree, there isn’t really any infringement. She gave the woman a stack of postcards to give out without placing limitations on how ether in print or verbally.
Since the woman meant no harm and Jen would have agreed and positively supported the move if she’d known then I would recommend some damage limitation.
Perhaps something along the lines of asking if she could sign them to help raise more money and then sign them on the front. She could continue to supply limited edition signed and numbered sets to the charity later. She gets her name out, supports her charity and gets a tax break, her friend gets to continue raising money but in a more acceptable way to the artist and the auctions will raise more money because the prints are limited. Everyone wins.
Technical infringement or not, I know that I wouldn’t be too happy to find out that this was happening to my work! I think this is the perfect way to handle things. People can be clueless about being an artist and who better to teach them than us? While what this woman did wasn’t against the law, it betrayed a trust between the artist and the client, whether it was purposeful or not. The artist owes it to herself to tactfully make it clera that she’s not comfortable with her postcards being auctioned in this way, but that she would be happy to help on her own terms!
Unless she lives somewhere with a droite de suite law, I don’t see an issue. People can resell property if they want, and that includes donating to auction for charity. And actually a droite de suite for art *still* wouldn’t apply because these were postcards and not original works. As long as the postcards were listed as such (and not works of art) and the artist name is still on them, there’s really no issue. Copywrite law in no way restricts secondary sales of non-original art items in their original state. This is how, for example, paintings end up in auctions by their owners and resold to someone else. I’ve resold work I’ve bought (usually on eBay) when times were rough. At no point did I think I had any obligation to inform the artist (because at the time our Artist Resale Right wasn’t in force, but regardless, as a private sale it wouldn’t apply anyway).
What the person couldn’t do is reproduce the image. Which they didn’t. No rules or laws broken here I’m afraid.
However, it was an sad oversight that the buyer didn’t contact the artist – you just never know if the artist could have been willing to donate something else! I would be pleased if prints/postcards of my work helped a charity and would tell the person (and possibly the charity) to please let me know in future in case I could contribute something of more potential monetary value.
omg, I can’t believe I actually typed “copywrite”. *slaps forehead* Sorry! Copyright. I should know better!
Yes many people take my greeting cards and frame them and hang them on their walls too. Who knows what kind of hideous frames my art cards are in, but we can’t always control what ends up happening with postcards and greeting cards. I think you should offer up some decent art work for them to sell, seeing as you support the organisation and then you will have more control over how your work is presented and sold.
It’s important that this woman be gently educated on the ethics of using an artists’ image without their consent. No, she didn’t do anything illegal, and yes, the cards were a gift. But let’s say they were framed poorly, or the artists name was partially cut off, or the postcards were used for an organization that the artist is opposed to, than her public image could be damaged. It’s important for artists to have control over how their artwork is displayed. I’d have a kind, gentle talk with the woman and explain nicely why it was ethically wrong to do this – in an effort to help keep her from hurting other business relationships she may have.
It may be helpful to consider printing your name and/or website not just on the front of the postcard, but tastefully over the image itself, in an area of “dead space” or some other way where the overall is still attractive. It fulfills the advertising purpose of having your name on front, and prevents this sort of thing from happening. Sure, you could mat over even that, but if it means cropping an extra inch of postcard to do it, the resulting image is going to look funny, most likely.
I totally agree that this meeting needs to take place, if for no other reason than to inform her for the future.
I once had a client boasting to me about how proud she was of some family pictures I had taken for her. She was boasting because she had entered one of them into a local photography contest. As her own. And she won. I was so shocked that I couldn’t even find words to express how I felt. She honestly had no idea that she did anything wrong. She assumed that she could enter it as her own since it was “her” granddaughter.
There is a HUGE need to get the general public educated on photographer’s rights in general. It is a battle that we togs are losing.
Perhaps this could be a lesson on further publicizing Jen’s own work. A flip side to this type of thing is shown by safari photographer Melissa Cook, who makes greeting cards for her company Scene East. They approach nonprofits, have a program where the organization becomes a sponsor of the product, and they get donations for every one purchased. Just another way to think of handling things like this before any abuse of property happens.
Jen could offer to sign some of the postcards, thus making them more valuable in the eyes of potential buyers, possibly increasing the price the nonprofit can ask, and helping to ensure her name is prominently included on the framed postcards.
Surely this ‘buyer’ knew full well what she was doing. the whole story sounds iffy at best, however the above comment makes a lot of sense.
The law for copyrighting an image changed in 1991. I have seen the actual documents from Washington. The law is, that by the meer fact that the art was created, makes it automatically copyrighted.
why are women always so worried about being nonthreatening and gentle? The woman was a professional, and if she doesn’t know that she violated both professional courtesies and ethics and, possibly, copyright law, she should. I don’t think you do her any favors by being manipulative, and the artist doesn’t do herself any favors by being so fearful about just straight-out telling her it wasn’t okay. I’m not advocating meanness, but it would be so refreshing to see someone advise directness and honesty that isn’t couched in all this nonsense.
This reminds me of two separate situations that happened to me. In the first one, I was shopping at one of my favorite gift shops in Geneva, IL and noticed there was a small frame for sale with a image that looked exactly like one of my prints. I took it to the store owner and she told me that she had done this. She said that liked my work so much, she cut it out of an invitation to an art show for me and replaced the photo that came with the frame with my work.
The second situation I had like this was when my neighbor came back from a women’s retreat up north with about 30 attendees and proudly showed me the folder that was handed out. The guest lecturer had taken postcard invitations to one of my solo exhibitions and pasted it to the cover of all of the folders. Without contacting me or asking my permission.
In the first case, I considered this totally unacceptable, but in the second case, I would have at least appreciated a request. I would have probably been okay with it, if they had included information about where to purchase my work and said that the cover art was courtesy of the artist Ann Teliczan.
My “day” job is a development director for a non-profit. What this women did is not ethical. Does the 501c(3 know that they received profits on your art without your knowledge? Did they have a release from you? Even though the persons intent was to benefit the organization-you have control over your images. You also have the right for a tax deduction for an auction item, which by law you must get a receipt for and they must supply to you.
I would write to the development office of the non-profit and ask for a in-kind donation form. I would also advise them to deal with you directly for future items and you would like recognition for your art that they directly benefited from. Can they issue a press release to thank you for the auction items.
I would not let this women continue to use your cards. As a an artist we all want our work out in the public but not in an this manner
I think what you said at the end about educating the customer about art and artists is so central to many of the troubles we have in this business. All artists benefit when we work together to express the value of what we do. Unfortunately, many artists are uninformed about copyright law and the ethics of the business.
While this issue may not have been truly illegal, that doesn’t mean it was ethical, and I think the artist’s plans to handle it are exactly right.
Yes, education is key. Not just for the public in general, but for artists too. I see artists violating copyright laws all the time by using someone else’s photographs that they simply copy rather than using it to learn about the subject and then making their own compositions. Especially with wildlife art. Few artists have actually stood in front of a tiger or elephant to take a photograph so where do they get their reference material? It’s important for everyone to understand these issues.
I’ve only produced one postcard and I designed it in such a way as to suit being framed, with black and gold border and title. If someone wanted to sell one, I can’t see that it would be any of my business unless they are misrepresenting it.
I’m not really sure I can see a problem in the story related above unless there is a clear case of the work be misrepresented in some way (did the postcard include a signature on the image?).
I read with interest the whole story.
I am a poor creator and make Wild life cards and publish, people appriciate these but I do know where to sell. These are interesting for children too. Kindly giude me.