2006 State Fair Exhibits FAQ

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Prepared by Mitchell Hoyer
4-H Youth Development Program Coordinator

Each year brings a new set of questions from 4-H members, families, and extension staff. Here are some questions from previous years we thought would also be useful for 4-H members, families, and exhibit judges. If you have an exhibit question, contact your local extension office or send your questions to me at mhoyer@iastate.edu.

Visual Arts & Copyright

Q. I have a member that wants to take a picture from a calendar that she purchased and paint one to look like it using a sponge and paint. She would enter it in 821B Technique Exploration. Is that OK or should she not be painting an exact replica even if she purchased the picture? She is trying to learn a technique.

Q. I have a 4-H'er that tells me that she is entering a non-original Visual Art project because she drew a picture of a girl from a picture in a magazine. She also indicated that she wanted to be judged on the technique she used (ink wash). Can she exhibit the drawing at our 4-H fair?

A. No. Even as an exhibit in the Visual Arts 821B “Design and/or Technique Exploration” class, unless they have permission, the answer is still No. The members are creating “derivative works”, which are clearly covered by copyright law. This will be a somewhat lengthy explanation, but I hope it will help you assist 4-H members, families, and volunteers in understanding basic United States copyright laws, and in encouraging 4-H members to develop their own creative talents. For purposes of our discussion, we will make the basic assumption that the original work in question is protected by copyright and is not in the public domain. Please note that public domain is not the same as publicly available. These are two very different concepts.

Copyright is a form of protection provided by law to authors of “original works of authorship”. These works include literary, dramatic, musical, artistic, and certain other intellectual works. The protection extends from the time the work is created in fixed medium of expression, and covers published and unpublished works.

The owner of a copyright generally has several exclusive rights. These include the: A) right to reproduce the work; B) right to prepare derivative works; C) right to distribute copies; D) right to perform; E) right to display.

A derivative work is one that is based on (derived from) one or more existing works. A derivative work may be copyrightable if it includes some “original work of authorship”. However, only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Examples cited by the U.S. Copyright Office of derivative works include: Sculpture (based on a drawing); and Drawing (based on a photograph) (emphasis added).

The 1992 New York court case of Rogers v. Koons serves as an excellent study for derivative pieces. Art Rogers was a California photographer hired to take photos of a couple holding eight puppies. Rogers had rights to use the photos for other purposes, and licensed the image for use in producing a series of postcards of the couple and their puppies.

Jeff Koons was a New York sculptor specializing in limited editions pieces (typically four each). He was preparing for a gallery show and came across a copy of the Rogers postcard. Koons thought it would make a good subject for his show, and sent the postcard to one of his workshops, instructing his assistants to copy the photograph into a sculpture. He titled the finished work “String of Puppies”, which was displayed at his exhibition. Three of the four copies were sold to collectors. Rogers did not authorize the use of the “Puppies” image by Koons.

Rogers eventually learned of the Koons sculpture from friends who had seen publicity articles about the Koons exhibition in newspapers. Then Rogers sued Koons. The short version of the decision is Rogers prevailed and was awarded monetary damages. The court ruled that Rogers had ownership of a valid copyright in an original work (the photo); that Koons copied the image without authorization; and that the copying was substantially similar to and an infringement of the Roger's photograph. Even though the sculpture was 3-D, used wood and acrylic, and modified colors of the puppies compared to the 2-D photograph, the court ruled that the Koons sculpture was clearly a copyright infringement.

Applying copyright law and existing court rulings to our 4-H exhibit examples, it should be clear that pencil drawings of magazine photos, sponge painting or stippling a painting from a calendar photo, a watercolor of flowers from a garden magazine, or any other artistic work resulting in a derivative product must not be allowed for exhibition, unless the member has permission from the original artist.

Learning a technique by “copying” an existing image is a great way to practice. 4-H members should then take what they have learned and use the technique to create an original image. They could use parts of the practice drawings in a larger portfolio of examples accompanying their final product to show how they learned the technique and applied the technique to develop their own works. This will also make for a stronger exhibit in the “technique class”. And of course, members can use their own photos or other works as the basis to create their own derivative pieces. We have seen many successful examples of this in previous state fair exhibits.

Q. Can you offer general guidelines for 4-H members to follow regarding exhibits and copyright, especially in the Visual Arts project?

A. Each case is different and it is very hard to offer recommendations that will apply to all exhibits. However, I would offer the following guidelines as a start:

1) Create something original,

2) If it's not yours, obtain permission,

3) Give proper credit, even when you have permission.

Q. One of my 4-H members wants to use Pepsi and Coke glasses that she purchased at a store in her visual arts project for fair. She is going to make candles out of them, using the glasses as candle holders/vases. The concern of course, is any potential copyright violation. Can you give me a concrete yes or no on whether or not she can use these glasses?

A. Yes, she may use the glasses. She purchased a product (that already had logos imprinted) and does not plan to alter the design. Even though she is converting the intended use of the product, there is no copyright violation. This answer does not address whether visual arts is the most appropriate class for exhibition (depending on goals of the member), or whether drinking glasses are safe to use when converted to candles/candle holders.

Q. I want to draw (reproduce) pictures of Van Gogh on a table. Is this a copyright infringement?

A. There are two aspects to the question: One is copyright and the second is originality. Let's deal with originality first. You didn't state the exhibit class in which you intend to exhibit the table. This CAN NOT be an entry in original art (821A). Regardless of copyright, permission or not (if required), this is a reproduction of a painting. The fact it is painted on a table instead of canvas does not change the fact it is a "copy" of another piece of art, and not original.

Paintings do have copyright protection. Depending on when the painting was created, the length of copyright protection varies. Vincent Van Gogh died in 1890. Because of the age of his paintings, and applying copyright laws in effect at the time, his work is now considered in the public domain. In fact, it is very easy to locate companies that specialize in reproductions of many of the "old masters" works. The companies commonly advertise that their artists have studied and are trained in the style of the masters and use similar materials for the reproductions.

Yes, you may reproduce the paintings of Van Gogh created on your table. Just don't claim it as original art.

Q. Is there any listing of what is considered "public property"? I'm wondering about art work like the Mona Lisa? Would this have been around long enough to be "public"?

A. No, there's no listing of public domain works. You need to research each item individually. However, we can (fairly) safely say with the copyright extensions, nothing new will be added to the public domain until 2018. You can conduct an online search at the U.S. Copyright Office (http://www.loc.gov/copyright/) for works registered since 1978. Be aware that even if a work is not registered, it may still be copyrighted.

Considering that Leonardo da Vinci painted the Mona Lisa approx. 1503-1506 (according to most historians), this painting is safely in the public domain. 500 years old is safe to use! Many reproduction, parodies, adaptations, etc. abound. It's kind of interesting to do a search for “Mona Lisa” in your favorite search engine and look at some of the variations. See the previous Q&A for a more detailed answer regarding art reproductions of old masters. The question had to do with painting Van Gogh drawings on a table. Key concept - if the member is reproducing the painting it is NOT original art. If the member is adapting, parodying, or the like, it might be original art.

Q. A 4-H member is drawing a picture from an old book the family has. The child's goal is to enhance his free hand drawing skills. His goal is to do his free hand drawing (while looking at the picture) and make it look like the picture in the book .

A. This is a wonderful way to learn a technique. However, the resulting drawing doesn't make for a good exhibit because of copyright. Have the member learn the technique, then use what he learned to create a drawing of his own. For example, draw the tree in the front yard, the family dog, the house, a bowl of fruit, etc. Or, draw a family photo - a picture taken by a family member. The member should draw and create his own free hand work for exhibition. There are very limited ways the member can include some of the "copying" sketches in the technique class by using a portfolio, but we would still want to see an original concluding piece(s).

This is complicated by the statement "old book". Whether or not the picture can be used depends on how old the book is and what the copyright restrictions of the book are. We need to know more about the publication date and author of the book to fully answer that part the question.

Q. A 4-H'er is drawing Mickey Mouse using a sketch book from Disney, but the copyright on the book says “for home use only - cannot be used for resale or public display”.(emphasis added) Can she display this at the county fair since she bought the book?

A. Absolutely not. The copyright statement clearly prohibits using the sketches from being displayed in any public setting, including the county fair. The member can use the techniques learned and create some other unique cartoon character or other original drawings for display.

Q. I drew a picture of the main street of our town. Several of the buildings have advertising signs on their storefronts. I included them because I wanted my drawing to be realistic. Can I exhibit my work at the fair?

A. Probably yes. Information available to us indicates there are some circumstances in which trademarked logos may be appropriate to include in original artwork. Factors to consider are the commercial nature of the work, the artistic relevance of the image(s) included, and the prominence of the image compared to the work as a whole. Realism is a critical factor. The image drawn should actually appear in real life. In other words, if you put the Sinclair dinosaur on the gas station in your drawing, there had better be a Sinclair dinosaur on the gas station in your town. Small images in the backgrounds are easier to approve than larger, more prominent images. It is difficult to issue universal approval for these types of exhibits. At the same time, we should no longer automatically say “No.” It is best to call our office and talk with us. Photos of the work in question are always good for us to use as reference.

4-H members also need to be aware some companies are very aggressive regarding use of their images and logos. (As in not wanting them used at all). Asking permission is still a good policy. Members should also consider whether or not the image to be included is important or critical to the piece of art. Do you really need the name of the feed company on the cap of the farmer? Would a plain cap work just as well?

Q. I'm a big fan of the Japanese anime cartoons. I drew a picture of one of my favorite TV characters using different colors, a different pose, and a different background. Can I exhibit the picture at the fair ?

A. Not without permission from the copyright owner. Even though the original source is a foreign country, copyright restrictions still apply. Additionally, there may be United States licenses or distribution rights for the characters. Frame the picture, proudly display it in your home, and enjoy it with family and friends. But don't bring it to the fair. The anime style is wildly popular among many youth and adults, with a great variety of characters in cartoons, shows, and books. Use your artistic and creative talents to develop your own anime characters or stories. It is not a copyright infringement to create your own work in the “style” of others. Perhaps we'll someday see your name listed as the creator of the next hit TV cartoon!

Q. I drew several pictures of sports stars. Can I bring them to the fair?

Q. A 4-H member drew a profile picture of Tiger Woods. Can he exhibit the drawing?

A. Maybe. The drawing of these famous people is certainly allowed. Public figures lose some privacy rights because of their celebrity status. If you're making your own drawing (or taking a picture) of them in action or walking down the street, you're OK in doing that. (However, it's not OK to peek over their fence into their backyard.) You're OK with the drawings and exhibitions until you want to reproduce those images. Because they are celebrities, they may be entitled to something called the right to publicity. This means they, not you, are the ones allowed to profit from the sale of their images.

The copyright concern in these two questions is dependent on the source or inspiration of the drawings. Many members may be using photos in magazines or posters as the original source. The member's drawing is considered a "derivative work". Only the original copyright holder can authorize the preparation of derivative works. The member's drawing needs to be a VERY DIFFERENT version from the original. Be cautious - very cautious - if the drawing is similar to an existing photo. If the sketch is from memory or from a photo the member took, fine.

Q. One of our members has photos of her grandparents wedding (circa 1940) She wants to recreate one of the photos in a drawing and exhibit the sketch. The family thinks they might know who the photographer was. There are no identifying marks (of the photographer), name of studio, or any indication of copyright anywhere on the front or back of the photo. Can she exhibit the drawing?

A. This photo would have been entitled to copyright protection under the 1909 copyright act. Works published from 1923 - 1963 were copyright protected when published with notice. Length of copyright was 28 years, with possible extensions of another 67 years. If not protected or renewed, these works are in the public domain. Works created before January 1, 1978, but not published, are protected from January 1, 1978, with varying lengths of copyright depending on date of death of the creator.

Because no notice of copyright appears anywhere on the photo in question, it is reasonable to conclude the photographer did not take appropriate steps to protect the image. To be absolutely sure there is no copyright registration, one would need to have the U.S. Copyright Office conduct a search of records. (You can search on-line at http://www.loc.gov/copyright/ for copyrights registered since 1978). We would suggest since the member may have knowledge of the photographer, an effort be made to contact the photographer or their heirs.

Based on our review of copyright information from several sources, and with the information as given in the question, we would answer Yes, the member may exhibit this drawing.

Q. A 4-H'er drew a picture of Grandma's "treasures". One of the items is a Waltham watch. They found that the Waltham company went out of business in 1957. What do they need to do about copy right?

A. The potential is likely more of a trademark question than copyright, but the answer will be the same. They don't need to do anything. This will be fine. If I understand what you're describing, the watch is one of a collection of items, all actual and real items. Draw it. Other issues could arise if the work is offered for sale, but those don't apply in this case as we don't allow the work to be offered for sale during our 4-H exhibitions. If the drawing was only of the watch, then we would have trademark use concerns.

The fact the company went out of business is somewhat irrelevant. Even though the company is out of business, the trademarks, patents, etc. may have been acquired by another company, or even still held by the original owners even though they're no longer in business.

Q. A 4-H member asked us about drawing a picture of Mickey Mouse. We said no because of copyrights held by Disney for Mickey Mouse. A parent said we were wrong, that Mickey Mouse was over 75 years old, and therefore no longer under copyright. What's the real story ?

A. You are correct in not allowing a drawing of Mickey Mouse to be exhibited as a 4-H fair exhibit. While Mickey Mouse is over 75 years old (first appearing in film in 1928), and his images would have entered the public domain sometime between 2000 and 2004, he is now still under copyright protection.

The Sonny Bono Copyright Term Extension Act (signed into law in October 1998), extended existing copyright terms by an additional 20 years from those established in the Copyright Act of 1976. As a result, any materials not already in the public domain will not become public until at least January 1, 2019 (95 years from 1923). Independent publishers challenged the law, but did not prevail. Eldred V. Ashcroft was heard by the U.S. Supreme Court, and in January 2003 the court upheld the law by a 7-2 decision. Disney has Mickey Mouse safely under protection for several more years.

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