Tag: artists' rights

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Plagiarism

Spruce and pine from Barnum Brook Trail, Carol Douglas, 12X16, private collection. This is a well-known scene painted by many artists. It would be difficult to prove ownership of a reference photo.

A well-known western painter sent me three images: her own reference photo, her watercolor, and a copy made by another artist. The copier had posted it on social media, cheerfully outlining her process with no hint of credit to the original artist. “She even copied my mistakes!” sputtered my correspondent.

Luckily, this resolved without lawyers. When challenged, the infringer agreed to take the work down and never sell it. That’s the only reason I’m not calling her out here.

Lake Tear of the Clouds (Headwaters of the Hudson), 30X40, Carol L. Douglas, private collection. I painted this picture twice.

Is it OK to copy artwork?

My correspondent was right in not asking the infringer to destroy the work. It’s legal to copy other work. It is illegal to sell, publicize or publish that copy without permission from the copyright owner.

Many artists over time have copied others’ work, including Vincent van Gogh in his time in the asylum. This is a way to deeply engage with the original artist’s technique and intentions. Many teachers-including me-set our students to copying masterpieces. But this is a learning exercise only, and the work is never intended to be shown or sold, even when the original is out of copyright.

Young spruce and pines, 6X8, Carol L. Douglas, private collection. I painted this twice because I lost the first iteration.

Pieter Bruegel the Elder churned out several copies of his own Massacre of the Innocents. It must have been very popular because his son made more copies of it. That made perfect sense at a time when the only way to reproduce a painting was to copy it brushstroke by brushstroke.

But that was then, and this is now. Copyright in the US is strict and enforceable. It’s there to protect creators, but, equally, you don’t want to get on the wrong side of it.

What is copyright?

Copyright is an inherent state that occurs at the time the work was created; registering it just provides one form of legal evidence that you created the work. For visual artists, registering every painting or photograph would be absurdly expensive and unnecessary; you would only do it if you needed to sue someone.

That means any photo or illustration you find in books, magazines, newspapers, and even on the internet is automatically protected by copyright law.

Sunset near Clark Island, 8X10, Carol L. Douglas, available through the Red Barn Gallery, Port Clyde. I’ve painted this scene multiple times, but always from life.

Protect yourself

The best way around this is to take your own reference photos. That’s important for more reasons than just copyright, starting with the greatly-expanded understanding we all have of places we’ve been to and people we’ve known.

Sometimes that’s impossible. You’re on the other side of the country or the boat has sunk. If a client sends you their own photo for a painting, you can presume permission. If it’s not their own photo, do some investigating. “He said he got the photo from his cousin,” is no defense.

If you use a third-party’s photo, protect yourself by obtaining written permission from the photographer.

You can use photos that are in the public domain. Copyright expires when the original creator has been dead for more than seventy years. Just google “public domain images” and the word for which you’re searching, like “clouds” or “Grand Canyon.” Creative Commons is an excellent source for public-domain images.

What if someone copies your work?

What if it’s your work being copied without permission? My correspondent contacted the infringer and asked her to withdraw the painting from the marketplace. She could have done this more formally through a cease and desist letter, but it turns out that she’d done all that was necessary.

If the infringer doesn’t agree to take the work down, it’s time to call a lawyer. In the US, copyright holders can sue content infringers for damages. Hopefully, it will never go that far, but it’s nice to know you have that tool at your disposal.

My 2024 workshops:

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Why I don’t buy Bob Ross merchandise

Bob Ross Toaster
Image courtesy Amazon.

Bob Ross’ The Joy of Painting first appeared on PBS when I was 24 years old. At one time, his show was PBS’ most popular offering ever, but that was lost on me. We didn’t own a television set during the eleven years he broadcasted.

That is not to say that I didn’t recognize his gentle voice, his fabulous perm, or his Happy Little Trees. The mesmerizing dullness of his show was wildly popular among my stoner friends. I had a Bob Ross contact high, understanding his cultural significance without watching the show.

Bob Ross Happy Little Tree mints
Image courtesy Amazon.

Ross can be forgiven for making 20th century sofa art. His art was secondary to his career in the Air Force, where he rose to the rank of Master Sergeant. He took classes at the Anchorage, Alaska USO at a time when Abstraction reigned. His teachers wanted nothing to do with representational painting. “They’d tell you what makes a tree, but they wouldn’t tell you how to paint a tree,” he recollected. I felt his pain; I was learning to paint at the same time.

After the Air Force, Ross worked for Bill Alexander, a PBS and workshop teacher who claimed to have invented wet-on-wet painting. Through this, Ross met Annette and Walt Kowalski. They were his ardent fans, friends and supporters. They were instrumental in creating both the PBS series and Bob Ross Inc., which sold painting supplies and instructional videos.

Bob Ross slow cooker
Image courtesy Amazon.

The company became wholly-owned by the Kowalskis upon Ross’ untimely death from non-Hodgkin’s lymphoma. He had already signed over his rights to his name and likeness to the firm, a move his son Steve said he regretted and was trying to reverse. The company continues to this day, run by the Kowalskis’ daughter, Joan. She is responsible for the unending stream of Bob Ross dreck on the internet.

Some of it is cute, some is funny, and occasionally someone buys me some of it. I thank them, of course, but Ross’ family didn’t see a penny from the bobble heads, socks and mint tins I’ve been given.

Who’s entitled to that money?

In his will, Ross left the rights to his name and likeness to his son Steve and his half-brother Jimmie Cox. The Kowalskis claimed that Ross’ life work was wholly owned by them, and they prevailed in court. The millions of dollars earned from Bob Ross’ likeness have benefitted the Kowalskis, not Ross’ family.

The Kowalskis maintain that they deserve it. “If not for the efforts of the remaining founders and their dedication to this mission, Bob’s artistic and cultural relevance-and his expressed desire to become the world’s most beloved painting teacher and friend-would have been lost decades ago with his passing,” they wrote.

Is that any more honest than the claim that Bill Alexander invented alla prima painting? Having been around during Ross’ first flush of popularity, I think not.

Bob Ross action figure
Image courtesy Amazon.

Bob Ross’ enduring appeal lies in his character. If he gave the art world nothing else, saying “We don’t make mistakes, just happy little accidents,” is reason enough to remember him.

Theirs isn’t the first or last business partnership that has foundered over money. Mercifully, it doesn’t really tarnish Ross’ reputation, which is as a fine person, not as an artist. But as for me and my house, we will never buy Bob Ross merchandise.

My 2024 workshops: