Dear Artists, Don’t Stick Your Head In The Sand

Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up. 

So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."

One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?

I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients.  But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.

It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.

We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.

Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.

Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.

On Making A Good Faith Effort To Get Permisison

Whenever a prospective client tells me they want to use a pre-existing work of art but they couldn't find the artist to ask permission, my first question is, "how hard did you look?" Their responses tells me a lot about them. Is this someone who is genuinely trying but stumped? Or is this a person who isn't interested in doing some hard work? If you've spent any time reading this blog, you know I'm big on getting permission before using someone else's work. First, it's legally much safer for you than relying on fair use. Second, it's just good karma. This is one arena where I'm not an adherent of Grace Hopper's immortal quip, "It is better to beg forgiveness than to ask permission."

You don't want to get sued for copyright infringement, which is why you should always ask permission before using someone else's work. And a cursory effort isn't going to cut it. No, you need to make a "good faith effort." In the law, we generally define that as what a reasonable person would determine is a diligent effort to produce a desired result. In other words, you need to do more than a quick Google search before calling it quits. It's tempting to think that because access to the internet is so ubiquitous, everyone must be online and instantly reachable. Unfortunately that's just not the case. Sometimes artists are hard to find, which means you gotta do some real sleuthing. 

So what does a good faith effort look like in the real world?

1. You have to determine if the rights are still owned by anyone. Generally speaking, art made prior to 1923 is in the public domain and therefore owned by no one. But even if you suspect that's the case, do the research anyway. You don't want to be sued by the estate of a long-dead jazz musician just because you assumed his work was up for grabs.

This chart is a useful tool to get your mind oriented around the issue. You should also use as many research tools as you (and your wallet) feel comfortable with. Google is a good place to start but not the be-all/end-all. There are private copyright search companies you can hire. You can hire a lawyer. You can also do a search through the Copyright Office database (as well as the Writer's Guild if the work is written) to track down ownership over a specific piece of work.

I should note that these tools will only help you determine if a work of art has been registered or published. Any work that hasn't been will require some more creative investigating on your part, I'm afraid.

2. You have to get in touch with the owner. This is where things usually fall apart for many of the people who contact me. Unfortunately there's no guaranteed way to find someone, especially if they don't want to be found. Certainly, you can start with the tools I mentioned above, and if the work is registered somewhere, there's usually some contact information associated with it. But ultimately, you may just have to call around.

I once had a client try to get in touch with a reclusive painter who had virtually no online presence. But through an exhaustive Google search, the client found a gallery in New Mexico that was selling some of that artist's paintings and with a little prodding, got the gallery to put her in touch with the painter.

Sometimes artists have managers or agents and you have to make contact through them instead. Go online and see if you can drum up client lists for some of those agencies. Maybe some of the rights to the work have been sold or licensed to a third party. Contact them and see if they can put you in touch. Maybe the artist is giving a lecture at a local university. Go to the lecture and try to meet him or her in person.

There's a fine line obviously between stalking and diligence and I strongly recommend you hew towards the latter. I don't recommend going to the Whitepages and soliciting them at home since that's pretty creepy and they probably won't respond well to it. But a communiqué sent through appropriate professional channels is okay.

As you can see, there are a lot of options open to you. You might have to get creative, and periodically do a gutcheck to see if what you're doing violates social norms, but these are all strategies you should consider before giving up.

3. Lastly, when you do get in touch, be nice, be friendly, but be direct with your ask. Don't waste their time and don't overstay your welcome. Get what you want, IN WRITING, pay for it, and get to work. There's no guarantee they'll cooperate, but if you act like an entitled brat, that's a surefire way to guarantee they won't.

Ultimately you may not find the artist, or you may find them and get no response. At that point, proceeding with their work becomes a question of risk. Did you make enough of an effort? Does fair use apply to the way you want to use the work? Before you make a judgment call on either of those questions, talk to a lawyer first. Making a good faith effort to find the artist and ask permission can sometimes be hard work, but from my seat it's critical to keeping your karma good and your ass out of court.