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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 Gregory Strachov on May 4, 2014 at 9:15am
Barrie, thanks for the post. I do recall seeing someone walking their dog in the distance while stopping for coffee and I was on my way to Texas. Could not see who it was because of the brevity of the glance. As for painting fairies among the rocks, when I hike in the remote canyons of Utah or Arizona, I can't help but feel that in many of those places, the eyes of ancient man looked at the same scenes as I see. I often see petroglyphs and conspicuous positioning of stones. Some of the stones have so much lichen that it is clear that these stones were positioned long ago simply because it takes a lot of time for such lichen to "glue" these structures together which indicates the measure of time that went by. I recently was in Utah and hiked along the Colorado River. I did a study of a red rock wall where the echo of my own breathing was amplified as though I heard the sound of another entity. The finished painting is titled "Native Song".
Comment by Barrie Lynn Bryant on May 4, 2014 at 12:38am

Contrasting the outdoor art fair scene, the indoor science fiction & fantasy conventions market ALL have policies in place regarding NO PHOTOGRAPHY WHATSOEVER in the art show rooms. These conventions, usually referred to as "Cons", will not tolerate anyone photographing another person's artwork for any reason without permission from the artist. I know this market very well and was a Guest of Honor at one such con last weekend, ConStellation V at Lincoln, NE on my way home from the spring tour. World Fantasy Con, World Science Fiction Con (more commonly known as WorldCon), Dragon Con, World Horror Con, and all regional and local cons of all kinds with the exception of some areas in Comic Con International San Diego never allow photography in the art show rooms. These Cons are usually held inside convention ready hotels so it's possible for con staff involved with the art show room to check each person entering the room. Security is a main concern. Intellectual property rights is a main concern.

Just thought you'd like to hear about that. Got fantasy art, Gregory? How about paintin' in some faeries among the rocks?

Comment by Barrie Lynn Bryant on May 3, 2014 at 5:20pm

This year Winter Park Sidewalk Arts Festival handed out the signs, or tried to. I was there and declined when offered the sign. The show rep said that I needed to hang it in my booth, but I said that I didn't need one since I don't often have a problem with the situation and that I handle photo requests and issues as they occur. The show rep didn't want to take "No thanks" for an answer and continued trying to make her point by saying that some artists have complained and that "We have had issues with this situation in the past and are trying our best to correct them."

I had a fellow artist friend helping at my booth who didn't get in on the beginning of the interaction and he walked into it and asked what it was all about. The show rep then handed him the sign and asked him to hang it in my booth and reiterated that the show had had complaints from artists about people taking photos of artists work without permission.

I don't think that we should ask outdoor art fairs to establish and police NO PHOTOGRAPHY ALLOWED policies. I don't see the problem as being as critical as some of the others here do. Just how many artists are out there that have been duped by these paparazzi vs. artists who haven't? How can we determine whether or not we have an epidemic problem on our hands?

I've had issues with intellectual property rights being violated, but none of them have occurred from being in an outdoor art fair. I've been ripped off a little and most likely to very little gain by the crooks. So I'm saying I've not really been detrimentally duped.

I think it's a great article, Gregory, and I'm glad it got published in Sunshine Artist as well as reprinted with permission here on AFI. Informing artists of the issue and letting them police their own space is certainly a good idea. I am tactful and assertive at the same time when dealing with this situation at shows, even with customers present. It’s business stuff. It’s just another one of those skills I continuously work to improve that go with the territory of being a self-employed artist.

By the way, I missed seeing you at Winter Park this spring. I did catch a glimpse of you and Kira at a McDonald's near I-10 on the Florida-Georgia Parkway. You must have been on your way to Fort Worth, TX. You glanced my way from the parking lot--I was up the hill walking the little white dogs in the grass just before that torrential downpour. Remember any of that? Maybe I’ll see you on the fall tour. WOOHOO!

Comment by Susan Spohn on May 3, 2014 at 1:55pm

I totally agree with your comment above, Karen. I do wonder though... with the 3-D printers starting up... soon they will be able to reproduce anything at a very reasonable fee. So will even creditable artists start to reproduce their 'originals' one after another as 'originals'? Or what will stop others from doing the same? Here or over seas, 2-D or 3-D. The times they are a changing... For myself, I will continue to paint and hope to sell.

Comment by Karen Holtkamp on May 3, 2014 at 1:00pm

Gregory, I absolutely agree with the philosophy that "what comes out of my mouth directed toward you is more a reflection of me than of you."  However, I can't agree that artists here must try to communicate about theft as you did to the two shows before they can rightfully predict a negative outcome. 

Many of us have given feedback about buy/sell vendors to many, many directors on many, many occasions -- sometimes taking the director by the hand and showing them the "made in China" label -- to no avail.  Same with feedback about loud and distracting rock music, carnival-like stiltwalkers, etc.  It's these experiences that lead us to believe that too many organizers don't care enough about those who are stealing sales from us, whether it's by selling mass-produced stuff from overseas or by taking a photograph which will, in a month, be a bunch of mass-produced stuff from overseas.  We've been burned repeatedly before, so I think those who complain here have probably earned their negative opinions the hard way.

Comment by Karen Holtkamp on May 3, 2014 at 12:49pm

Ya know, many years ago the Hollywood actors probably felt pushed around because ultimately they organized the Screen Actors Guild which is apparently still healthy today.

Comment by Mark V. Turner on May 3, 2014 at 1:09am
Darned iPhone keypads. So those two show will print signs for artists to put in their booth. Like they are empowering you to take action and they feel good b/c they printed signs?? That's all warm and fuzzy but it is lip service to the need. When the promoters patrols heir shows looking for buy sell and copyright thieves, then I'll feel supportive.
Comment by Mark V. Turner on May 3, 2014 at 1:04am
So the shows you menti
Comment by Gregory Strachov on May 2, 2014 at 10:33pm
For those who have doubts, I feel that your opinion is based not on what you know of the show directors but rather it is a reflection of what you would do if you ran a show.
Although your thoughts were expressed in a meaningful and eloquent way, you are making premature conclusions before ever making real attempts. I can understand your retreat if you made attempts to discuss this with several show directors, but you are making conclusions based on your own doubts and fears which may sound convincing but are not valid because they are only theory. How would you feel if medical researchers come up with negative results before ever conducting an experiment to test a new antibiotic? As eloquent as you are in expressing your doubts, they are still based on assumptions and not facts. Start expressing doubts after you contacted your favorite show directors with this, and did it in a respectful, fact filled way, to see if your doubts are in fact premonitions. Then report what the results are to all of us.
I contacted two shows and both were more than happy to help and showed serious concern. I sent the article to Sunshine Artist to spread the word. Rather than taking this opportunity to gather and get something done, we have a few creative writers inventing wonderful analysis prior to the fact and who find comfort in their passivity. It's up to all of you to have a serious thought about this. We have an issue and an opportunity to make it right or at least to have the shows provide some remedy...which is more than we have now. With some help, artists can freely confront those who photograph and can act as an extension of show policy instead of on their own accord. That in itself would already be of help.
Currently, we are each on our own and that makes it very difficult. I leave this up to all of you to consider. I have done as much as I can as an individual. If more of you join and respectfully send the article to your show directors and ask them to see what they can do, perhaps provide a sign and perhaps discuss some procedural possibilities, then that would already be some help.
I thank you all for your time in reading and contributing to this. I leave this up to each of you to do what you feel would help. I did all that I can do. I will continue to act on this as an individual in my own way. So far, two festivals that I spoke with showed serious concern and are willing to take action. They are the Winter Park Spring Art Festival and the Cherry Creek Art Festival. Winter Park immediately expressed concern and printed a very good sign for all the artists and made it available for the artists to hang in their booth if they wish. Most artists never bothered and the issue became diluted and died. That was two years ago. This year, I sent the concern to the Cherry Creek Art Festival. They immediately showed concern and had a board meeting about this. They plan to have signs and also assist artists if there is a problem.
For those who thought of all the reasons why show directors would not show interest, and saw no positive potential resulting from this, there is nothing more for me to say. For others who feel that we have an opportunity to get something positive done, then I urge you to follow your instincts. I did all that one individual can do but I can not do this alone. I tried to identify the problem and wrote an article which Sunshine Artist was gracious in publishing. I also would like to thank Connie for her site and her efforts to post this article and to begin a discussion, which was quite revealing to me.
I thank all who gave this some thought and expressed their opinion. Diversity and a democracy are wonderful until one hears the reactions of many to one single problem. The only way that anything can get done is if a group is united in their efforts. The military is based on this, the government is based on this but the voters are each on their own and perhaps this is why the voters remain in wonder.
Good luck to all of you!
Comment by Gregory Strachov on May 2, 2014 at 9:31pm
For the record, for those who believe that art shows are not interested and are self serving, I sent my information to two shows. They are the Winter Park Spring Art Festival and the Cherry Creek Art Festival. Winter Park immediately expressed concern and printed a very good sign for all the artists and made it available for the artists to hang in their booth if they wish. Most artists never bothered and the issue became diluted and died. That was two years ago. This year, I sent my article to the Cherry Creek Arts Festival. They immediately took serious notice about this issue and had a board meeting. They plan to have a sign and also are considering other methods to inform the public. They were very receptive and showed great concern.
So for those who feel that they can predetermine what the festival directors would do, know that these were the only two festival to whom I sent the information and both showed immediate concern and took action. Their concern indicated to me that they truly do care and would consider all possibilities as long as the presentation of this to the public is done with taste and is thoughtful.

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