Art Fair Insiders

Call for Artists, Making Money at Juried Art Fairs, Craft Shows and Festivals

Stealing Intellectual Property at the Art Fairs

Picture imperfect
Taking aim at stealthy intellectual property theft at art & craft shows

by Gregory Strachov

This article was published in the current issue of Sunshine Artist magazine and is reprinted here with the permission of the publisher, Nate Shelton, and the author Gregory Strachov. Photos by Gregory Strachov.

In recent years, many professionals on the art & craft show circuit have noticed a conspicuous activity that poses a threat to the copyright of their intellectual property. Specifically, the issue involves professional photographers who are appearing at some of the nation’s most-noted art festivals — and we’re not speaking of shutterbugs who juried in.


Rather, these photographers carry expensive, sophisticated cameras — often two — as they stand in front of exhibitors’ booths. They boast  lenses that require no tripod to stabilize and high-resolution digital equipment that can pick up the detail of an artist’s signature from 100 feet away. And they usually pretend to focus on the ground or the sky while keeping a firm eye on the display. When the artist is not looking, though, or when the crowd in the booth thins down, these still-life paparazzi quickly photograph as much work as possible.


When confronted, they are often aggressive and use some variation of the excuse that, “This is a public place and a free country.” Unfortunately for them and fortunately for art & craft professionals, copyright laws only make an exception for works in the public domain, which comes into play once the creator has been dead for 70 years. It’s true that artists’ booths are in a public place, but the property within these booths is still private intellectual property that cannot be photographed without the express permission of the author.


Furthermore, no gallery or museum permits photographs to be taken of the work on display in those venues, although they too are public places. This is copyright law 101 — and an issue that every artist and craftsperson should be aware of before they head to their next show.
 
Spy games
Artists in general know that copying someone’s work is unethical, and the public generally knows this as well. Moreover, courts have found photographs of paintings to be copyright-infringing derivatives of the original. The only reason an artist would permit a stranger to photograph his or her work is for known reasons that the artist alone would determine as allowable. If the artist verbally expresses or posts a sign stating that his or her work must not be photographed, there should be no debate about it.


Nonetheless, stealth photographers who appear at the shows are insistent, pervasive and relentless. When confronted, they are often argumentative and offensive, because they know that an artist’s hands are tied as he or she attempts to remain professional and in good standing with the festival committee. No artist wants to be blacklisted by an event, and some shows would prefer to get rid of one troublemaker than consider alternatives. The photographers understand the show environment very well and use this to their advantage.


There are also “artists” who market their work in completely different venues than ours. For them, it is cost effective to go to a prominent, national show, walk into a booth filled with work that is selected by an educated jury and photograph it. They can easily gather multiple market-proven and edited ideas that they then bring to their studio, copy and send to markets that we never see. At the end of the day, they know that our venue does not provide the kind of income needed to afford an $85,000 legal fee to attempt to bring justice to the case.


Photographs are taken in a variety of ways at shows, too.   One common method involves asking if one can photograph a child in front of a booth while using a wide-angle lens setting. Another method is to set a digital camera to record video as the photographer does a panoramic sweep through the booth, and this can also be done with a cell phone. Most photographers use sophisticated equipment, though — some even use wand scanners that can immediately send images to an external party.


Take a recent encounter I had at a major Northern show. An Asian show-goer was photographing booth after booth. Her focus was on ceramics as well as on displays of blown glass. I went to follow her with my camcorder in an effort to document her activity. When I got to within 50 feet of her, though, she turned as if she’d been alerted to my presence in the crowd. I noted she was wearing earphones similar to a security agent.


As soon as she spotted me, she disappeared between two booths and was gone. When I turned, I saw two Asian men standing right behind me. They had the same kind of earphone and mouthpiece as the female, with wires leading to a small box attached to their belts. These certainly were no ordinary tourists. And it is worth nothing that China has shown a repeated interest in the reproduction or cloning industry, and that interest has been cited by the media as being a major concern of both the tech and fashion industries. It is should also be a concern to artists.


At another national, well-known show, in Denver, a man appeared and photographed all of the booths in the painting category. I approached him to ask what kind of cameras he was using. He responded as though he had a severe mental impairment and spoke as if he could only utter some sounds.


The following year, the same man appeared near my booth. He had the same two cameras and field jacket that he wore the year before. I said hello, and he replied in clear, spoken English. I went back into my display to ask him why he was photographing. But before I could say a word, I saw that he had a wand that he used to scan my painting with a methodical sweep. I asked him to stop. He smiled, said that it was “already sent” and quickly left.


Now, I always have “Do Not Photograph” signs in my booth. So I looked for someone who worked with security, but they were nowhere to be found. I felt helpless because my better judgment told me to apply serious restraint and avoid an incident that might damage my reputation or disrupt the show. But the fact is — and as many other artists and craftspeople can attest — these were not isolated incidents.
 
Solving the problem
I have spoken to various show directors about this problem, and the reactions fill the spectrum. On the proactive side, the Winter Park Sidewalk Art Festival made an informative sign two years ago to warn the public that the art on display should not be photographed. The show committee announced that these signs could be used by artists on a voluntary basis. Two members of the committee also made every effort to inform the exhibitors of the availability of this sign.


Regardless, too many artists knew nothing about it, and the lack of uniformity diluted the intent as well as enforcement. When photographers were spotted at the show — and there was one who stayed most of the afternoon, posing as an “official photographer” — nothing that I know of was done to stop him.


Even more frustrating, several show directors I’ve spoken with did not seem interested in the matter. Many of them simply wanted to ignore the issue primarily because they knew very little of copyright law and did not want to make an error by enforcing laws they knew nothing about. Some said that the matter is up to each individual artist; however, this does not offer enforcement, since the artist alone cannot be effective in getting the message across without creating a disturbance. Other directors expressed interest but felt that their boards would not agree with taking any action.


Therefore, it appears that many show directors need to be informed about copyright laws regarding the copying and photographing of artwork. They should also have a plan implemented to help safeguard their exhibitors’ intellectual property in the same way that they have plans for medical emergencies and other human needs. Finally, committees need to know that they have a legal right and perhaps an obligation to have some plan in effect.


In short, they need to understand that having intellectual property in a public space does not make it part of the public domain, and that acting as if it does is unacceptable behavior with potential legal consequences.


The solution might be as simple as a commitment on the part of shows to inform their public, not only by posting rules but providing an education regarding this matter. This could be done very gently in the show literature as an ethical and moral understanding. Rules posted by the show would also arm exhibitors with an official stated fact if a confrontation occurs. And since promoters gain revenue from exhibitors, it would benefit show-runners’ relationship with the arts & crafts community if they elected to promote and enforce rules that inform the public about copyright law and the artist’s right to protect their private intellectual property.


Furthermore, by having these rules well publicized, the public might act as police simply by the default of peer pressure. The public does not get hurt, the artists will benefit and the show will reap goodwill benefits.


In the worst-case scenario, there should be some security personnel available to enforce the rules by escorting violators from an event or permit the artist to file a legal complaint. Most artists that I have spoken to are very aware of this situation and are angry, but they feel helpless because frequently no action is taken on the part of show committees to effectively address this problem. And make no mistake: Photographing art without permission is theft!


Everyone knows how to act at weddings and how to dress for a funeral. Yet the general public knows little about our industry. The few films that depict Van Gogh or Pollock are hardly the representation needed to inform the public about fine arts and crafts and the dedicated individuals who create them.


However, the public can be educated about behavior that would be appropriate and respectful at a show. They can and should be better exposed to the seriousness and commitment that creators have for their work, in that they devote their lives and travel thousands of miles for the opportunity to make a living with their artistry. What these artists certainly did not agree to, though, is to provide an opportunity for photographers who are assigned to steal their work for the various markets that would benefit at the artist’s expense.


We, as working artists and craftspeople, should all be hopeful that our community and industry will agree to address this problem, and leave this sort of intellectual property theft on the cutting room floor — where it belongs.

Click on this link to print out the "NO Photography" sign pictured at the top of this article: DoNotPhotograph.pdf


Gregory Strachov has been a full-time working painter for over 30 years, during which time he has received numerous industry honors and awards. He can be reached at strachovstudio@gmail.com.

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Comment by sean McDougal on May 13, 2014 at 10:56am

Slobodan , I see police at most shows. You call the show director or whomever. Just like shoplifting. The police have no choice but to file a complaint. Then you have all of the persons info to pursue a civil charge for copyright if needed. The fact of the matter is in a civil matter you can't even force the person to give you there info. They can just walk away. I was given this advice from an attorney who dose trademark and copyright law. She told me you can register copyrights all you want. But if you don't know who they are your wasting your money. Because then you have to wait till you find them selling it.But I guess an art fair artist would know better about this.

Comment by Slobodan Blagojevic on May 12, 2014 at 7:54pm

 How many arrests or citations so far, as a result of posting that small sign? Are we seriously considering calling 911 to art fairs!? "911, what's your emergency? ... Please hurry, this guy is shooting... Ok, sir, I need you to take cover and stay down, I am sending SWAT... is anyone shot or wounded?... No, ma'am, he is shooting with his camera... pause... click."

Comment by sean McDougal on May 12, 2014 at 10:03am

You can also post a small sign stating that there is a fee to photograph your work with your permission. This then makes it a criminal matter and the police can arrest them. It is called theft of services. Copyright is civil and that is why you won't get help from security or police. Theft of services is a criminal complaint and the police have no choice but to issue a citation with your complaint.

Comment by Mark V. Turner on May 5, 2014 at 3:24am
I just returned from A-RTS Rockville (MD). A two day event with potential... Put on by the same folks who put on Bethesda Row in October.

A truly multicultural and multiethnic event. I heard more languages spoken that were totally unfamiliar to than in the last 10 arts events I've done.

I allowed about five people to grab snaps of some of my work after they asked permission. Almost all of the image takers didn't come from the USA. Didn't..... Now I must have had at least 100 children and adults PAW my paintings without asking permission. People are drawn to test their eyesight with tactile testing. If as many who had to touch my paintings bought my work, I'd be well-known and prosperous.

Grubby pawed children are drawn visually to touch my paintings and marvel at the colors. Their parents reel them in like a big tuna......and then surreptitiously cop a feel when they think I'm not watching. If I had a dollar for every finger poke my paintings have endured, I'd be rich.

So photographs do not bother me so much as those who must sample with tactile methods. Perhaps my market is unknowingly more keyed to those with low/no vision.

My point is that I live more in fear of pawing of my work, not prints or photos. We live in a world if try before you buy. Perhaps this American cultural norm is part of why folks want pics and to paw the creative output of artists and artisans.

People who were not raised in this country have much more respect for the work of artists. They recognize a creatively gifted person and respect the output.

Given the respect, I usually grant the image request. To my knowledge, I gave found no knockoffs of my work to date. However neither have American museum professionals shown an interest in purchasing my work for their respective collections.

Relative to this discussion, the day that my work gets copied for profit by others is the day when I will know that my passion is potentially a lucrative venture.

I DID have one visitor to my booth who was interested in licensing my work for purposes of print on demand products.
Comment by Gregory Strachov on May 4, 2014 at 6:42pm
For those who wish to see what the American Society of Media Photographers state, the flowing is the link: http://asmp.org/tutorials/photos-public-buildings.html

Photographers need to respect copyrighted intellectual property and the fact that they are permitted to photograph in public spaces does not give them license to overlook the rights of professional artists and craftsmen who wish to protect their property. The ethical standard is that they must ask the artist prior to photographing their work. This site explains it clearly.
Comment by Barrie Lynn Bryant on May 4, 2014 at 3:26pm

I don't think bigger shows are more concerned with my welfare than smaller ones. I've done all kinds of shows and haven't seen that be a universal truth at all. I think it's dead wrong, in fact.

I'm not worried about people stealing my ideas. I do confront photogs when they take pics of my work at shows. I'm not really concerned about what they might do with the images down the road since it most likely will not cause any harm to me.

My favorite quote in regards to plagiarists comes from Rudyard Kipling:

They copied all they could follow, but they couldn't copy my mind. So I left them sweating and stealing, a year-and-a-half behind.

Comment by Barry Bernstein on May 4, 2014 at 3:18pm

One show I did posted a list of things that were acceptable and unacceptable from patrons coming to a show. I forgot what show that was. One of the rules of proper etiquette was to ask permission before taking a picture. Very few people ask. 

Comment by Gregory Strachov on May 4, 2014 at 2:25pm
Hi Barry and nice to hear from you. I realize that photographers have rights and you also know how much I love photography. When I judged the entrants to show at the Butler Institute of American Art, I think more photographers were accepted than usual because because I have serious respect for the media.
However, when photographers impose their rights over the rights of the artists to protect their copyright, I see a serious conflict of interests. This conflict can be resolved by simply having a blanket rule made for all photographers at art shows to simply extend the courtesy of asking before they shoot. However, as you well know,
They often don't ask. Furthermore, their behavior makes some artists feel like prey because they stand in front of the display booth and focus on the sky and the ground, to seem innocuous, and when opportunity shows that its clear, they shoot. When artists approach them, the photographers are not only unfriendly, they are aggressive, which brings to mind that the greatest defense is a strong offense. If asked why they took the picture, they reply "none of your business".This of course does not label the pool. Most are innocent people who love what they see and in their enthusiasm want to show their friends how wonderful the work is. But there is an element out there that this entire matter and article wanted to bring into the spotlight.
I think this can be resolved in an amicable and civilized way but this take time, it takes patients and it takes some faith. If the major shows adopt a policy that requires the artists to respectfully ask before they take photos, this gives the exhibitors a change to decide based on the inquiry. However, at this point, it is as though we have no right to protect our work and these predatory photographers have every right to do as they wish. My hope is that this imbalance can be addressed where everyone feels that their rights are respected.
Comment by Barry Bernstein on May 4, 2014 at 2:11pm

My point with the last comment was that all we ever do is talk and those of us who do something are considered nut cases and have taken a lot of criticism. Some of us have been threatened with law suites. I got so frustrated with the situation, I stopped talking about these issues a year ago. You can look at my posts on this site going back 4 years and you will see I have not said much the past year. All of you who agree with Gregory should become proactive and write to shows to voice your opinions and at the same time, if you criticize, give them a solution, too.

Comment by Barry Bernstein on May 4, 2014 at 2:05pm

Gregory, I don't think the problem is with most of the better shows like Winter Park and Cherry Creek. The best shows always are concerned with us, except for one show which will remain nameless, that I have criticized many times on this web site. It's the 99% of the rest of the shows that has to be dealt with.

Since both of us go way back, we still remember when all the shows had our best interests in mind. Also, there are a bunch of us who have tried to deal with these issues for many years. We have sent "proof" to shows with buy/sell info, and have made numerous suggestions, both to show directors and to artists. Some of us have gotten banned from most of the social media art fair sites because they got so frustrated with the situation that they started foaming at the mouth, atacking everyone in site. This article, while being excellent and right on the mark, is hardly the first time someone brought up these issues.

On the subject of photographing work, when someone gets out their camera to shoot my pieces, I always wonder what they are going to do with the images. Are they looking for something they may want to buy when their new house is finished? Are they showing their friends the work they liked at the show? Or, are they stealing ideas and designs to give to foreign manufacturers to produce something similar? I don't want to alienate a potential customer. On the other hand, a number of years ago, I stumbled into a furniture store and saw very similar work, with very similar glaze treatments on their furnishings that they had for sale. They were cheaply made, but, I guess the buyer wasn't sophisticated enough to know the difference or cared.

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