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TOPIC: Ink & Anvil Timeline

RE:Ink & Anvil Timeline 13 Oct 2006 13:52 #16

  • ThomasRideandDrive
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Well I've resisted posting as a mere non-farrier: virtually had my hands duct-taped to my sides.

I've read everything with total interest and fascination and I've got to say that as an "innocent bystander" I feel that Cyberfarrier, Ron and Rick have conducted themselves calmly and rationally and given plausible explanation and rationale throughout.

Rick's final posting seems to sum up well the nature of corporate business and the contractual relationship and those who don't like it need to get over it.
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RE:Ink & Anvil Timeline 13 Oct 2006 14:15 #17

  • Tom Stovall CJF
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tbloomer in gray

What Ron is talking about is explained here:

Works Made for Hire under the 1976 Copyright Act

Read the Statutory Definition paragraph 2. Pay attention to the part about illustrations, maps, charts, tables . . . 'nuther words the layout which I&A was attempting to claim as their own intillectual property. A copyright lawyer would have a field day with this stuff. Then there's that think about ignorance of the law . . . and excuses.


Copyright law can get pretty murky. It's pretty clear on intellectual property created on an employer's nickel, but the ownership of intellectual property created by independent contractors can can keep a squadron of lawyers in Rolex and Armani for years.

When somebody commissions me to build a gate using their artwork, it's their gate, lock stock and intellectual property barrel: they can use the gate to keep their cows in, in ads for their property, or as a target - it's their gate.

But, when I build a gate using artwork I've created on my own time (my intellectual property) for their consideration, the cheese can get awful binding. The client owns the gate, they can use it to keep their cows in, they can use illustrations of the gate in their ads, they can use it as a target, but they can't incorporate my artwork into another gate, into their signage, or into a logo without my permission.

I still haven't figured out who owns the artwork when a client pays me to design (not build) a gate; so, ever the trusting soul, when I email scale layouts or drawings to clients for their consideration, I make sure the resolution is such they'll become a pixelated blob if somebody tries to use them as a working drawing. Since I don't really know whether the artwork I do on retainer belongs to me or the client - and I have no desire to contribute to my lawyer's Rolex/Armani fund - I make damn sure the client is pencilwhipped sufficiently to console me for the possible loss of my copyright when I work on retainer.

Food for thought, YMMV.
Tom Stovall, CJF
"The only foolish question is the one left unasked."
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RE:Ink & Anvil Timeline 13 Oct 2006 15:15 #18

  • Rick Burten
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Tom,

I am in complete agreement that when you, of your own volition, create artwork , it is yours and yours alone.

Were I to commission you to create a gate that included artwork of my general description/desire, and were you to do so to my satisfaction, would that artwork not belong to me? (I'm not looking to argue here, just want to have your input and insights). If I go to an artist and have my ugly mug depicted in an oil on canvas or other medium by said artist, who owns the artwork and any work product developed by the artist to accomplish the task s/he or he is being paid for? I understand that the artist signs the work, but can't the works commissioner reproduce that work at his/her pleasure?

Rick
Rick Burten PF

In the immortal words of Ron White: "But let me tell you something, folks: You can't fix S-tupid. There's not a pill you can take; there's not a class you can go to. S-tupid is forever."
."


Je pense donc je suis
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RE:Ink & Anvil Timeline 13 Oct 2006 16:08 #19

Rick, Tom,

Section 16 of the I&A contract states clearly that "PUBLISHER, acknowledges that, unless otherwise agreed upon, all editorial copy and photographs produced for the publication by PUBLISHER will be produced on behalf of CLIENT, and becomes property of CLIENT."

There are no limitations on the form of the work produced which to me would indicated that in any form ownership transfers to client. It doesn't matter if it is hard copy or soft copy. The transfer would automatically include anything produced unless exempted and nothing in this contract or ancillary agreements has been exempted.

While Tom is right about the complications in works for hire Copyright Law, in this case the contract addressed the issue and is unequivocal.
Ronald E. Kramedjian, RJF

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RE:Ink & Anvil Timeline 13 Oct 2006 16:26 #20

  • galadriel
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Rick Burten wrote:
Were I to commission you to create a gate that included artwork of my general description/desire, and were you to do so to my satisfaction, would that artwork not belong to me?

"It depends." Works for hire are tricky things. The gate would belong to you. The image of the gate may not. If the artist is a skilled artisan using that skill to produce the work, it's more likely the artist retains the copyright. If the artist is using his own tools, it's more likely the artist retains the copyright. (There's more. There's lots more.) Any single commission is almost definitely going to remain copyright of the artist.

If you are working as a full time employee (not contractor), then your works will belong to the employer.

There are certain cir***stances in which an artist may sign away the copyright to the art as part of the process of the commission. In some cases, even signing a contract does NOT allow for the commissioner of the piece to take all the copyright. The artist may separately assign copyright to the commissioner of the piece, but including it in the contract as a term of the contract may not be valid.
If I go to an artist and have my ugly mug depicted in an oil on canvas or other medium by said artist, who owns the artwork and any work product developed by the artist to accomplish the task s/he or he is being paid for? I understand that the artist signs the work, but can't the works commissioner reproduce that work at his/her pleasure?

Without question, in this case the artist owns all copyright and all rights to reproduction.

Consider a wedding photographer; taking pictures and doing all work as specified, but the photographer owns ALL rights to the photos and ALL rights to the reproduction.

When someone wants to use a photograph in a magazine, attribution is given to the photographer. Permission is not needed from the person IN the photograph. (If the photo is being used for advertising, that's a different thing entirely, of course.)

Edit to add:
The AFA/I&A thing is much, much, MUCH more complicated than these few examples. But these are rather straightforward examples, and in these cases the artist does actually retain control of the art itself, even after the first work has been delivered to the person who commissioned it. These examples may not have a whole lot to do with the main topic under discussion here.
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RE:Ink & Anvil Timeline 13 Oct 2006 16:39 #21

  • vthorseshoe
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Wow ! I just noticed. I am a senior member now. I have advanced from the contributing member stage.
Hmmm let me see whats next ? senior senior- very senior-
I'm honored. Thanks Baron.

I also have noticed how Rick and Ron have conducted business on this forum.
Ron has made a lot of effert to present everything in its proper form to the readers.
To explain things with the view of a businessman. The why's and what for's.

Rick in his usual well versed and infinite wisdom has gone the extra extra mile to make things crystal clear for the readers.
To break things down and explain things bit by bit.

Both have shown a lot of desireable traits to encourage members to consider voting for them.
Competence, ability and desire to be forward and keep the membership informed. Honesty and both have exhibited a desire to serve.

I am sure if we heard more from the other candidates we could say the same for them, but other than a few postings from Mr. RT Goodson, where are they ?

I had hoped to hear from everyone.
Posting on the AFA site has kinda fizzled out.
"you may not like what I say" !
-but-
"you'll never have any doubts where I stand
quote Cindy Matthews 1948-2006


I thought my life had come to a close with Cindy's passing, but there is life after death Thankyou Sharon !

Bruce Matthews
Southeast...
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RE:Ink & Anvil Timeline 13 Oct 2006 17:32 #22

  • Tom Stovall CJF
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Rick Burten in gray


I am in complete agreement that when you, of your own volition, create artwork , it is yours and yours alone.

Were I to commission you to create a gate that included artwork of my general description/desire, and were you to do so to my satisfaction, would that artwork not belong to me?


I think it'd depend mostly on whether or not I was drawing wages from you and using your studio, canvas, paper, pencils, brushes, paints, etc., while I was trying to do the artwork to your satisfaction - as opposed to your sending me a couple of out-of-focus photographs and saying something to the effect of, "Use one of these pictures for a model, put me in the winner's circle with Secretariat, and send me a sketch."

You'd own the former; I'd own the latter.

(I'm not looking to argue here, just want to have your input and insights). If I go to an artist and have my ugly mug depicted in an oil on canvas or other medium by said artist, who owns the artwork and any work product developed by the artist to accomplish the task s/he or he is being paid for?

That'd depend on the terms of the commission. Generally speaking, if an artist has been retained by a client and is operating on the client's nickel, whatever the artist produces belongs to the client. The Rolex/Armani bunch come into play when an artist accepts a retainer to do a piece, but has no assurance of being able to sell the artwork. (i.e., Here's a check: Paint me a picture of a field of bluebonnets. If I like it, I'll buy it.) When he sees the finished artwork, the guy who wrote the check can tell you your bluebonnets suck and storm off in a huff without owing you a dime - but the next fellow through your door might think they're the best rendering of a flower since Monet's water lilies and buy it on the spot. Human nature being what it is, as soon as the fellow who wrote you the retainer check discovers somebody bought those bluebonnets, he may decide they didn't suck all that bad and demand payment for "his" artwork.

Enter the Rolex/Armani bunch.

I understand that the artist signs the work, but can't the works commissioner reproduce that work at his/her pleasure?

Like lots of other things in our world, the answer is "It depends." My personal policy is that when you buy a gate from me, the gate is yours and you have my permission to use the artwork any way you see fit as long as I get credit for being the artist - logos, other gates, signage, whatever - I figure the more folks see my stuff, the fewer horses I'll have to shoe. I usually retain the right to use the artwork in my gates in any manner of my choosing because it's fairly common for a new client to look at my portfolio and say something like, "Can you put the windmill in this gate in with a couple of them
muley cows in that gate, the Beefmaster bull out of this gate, and the oaks from that other gate?"

I'm admittedly a slow learner, but it didn't take me too long to discover that it's a helluva lot easier to make slight changes in the components of a new composition than it is to re-draw every component of that composition. Remember, I'm the brilliant arteeste who got into the metalart business by drawing a couple of team ropers directly on a piece of plate in soapstone, then cutting it out with a plasma torch and selling the piece to a team roper. (Hot damn momma, we gonna be rich!) That feeling of brilliance lasted as long as it took for another team roper to see the piece and order one just like it - which meant I had to try to draw identical artwork without being able to see the original.

Duh! :)
Tom Stovall, CJF
"The only foolish question is the one left unasked."
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RE:Ink & Anvil Timeline 13 Oct 2006 18:23 #23

  • Rick Burten
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Tom Stovall, CJF wrote:
as opposed to your sending me a couple of out-of-focus photographs and saying something to the effect of, "Use one of these pictures for a model, put me in the winner's circle with Secretariat, and send me a sketch."
Tom,
Those photos weren't out-of-focus! Thats how I look :eek: :p And, thats not Secretariat I want to be posd with, rather Sir Barton :)
Rick Burten PF

In the immortal words of Ron White: "But let me tell you something, folks: You can't fix S-tupid. There's not a pill you can take; there's not a class you can go to. S-tupid is forever."
."


Je pense donc je suis
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RE:Ink & Anvil Timeline 13 Oct 2006 19:58 #24

I will share my story. My oldest daughter is an artist and she has a small buisness selling her originals, prints, cards and clothing. My wife and her mother both (type A) personalities manages the buisness. Orginizes and schedules all the fairs, trade shows, web site, run the booth etc. The conflicts are too much to mention. My wife and mother-inlaw see my daughter as an employee and can become pretty demanding for her to produce new art. My daughter sees herself as self employed artist and also attending college. She produces when she is moved or in the mood. The more demands placed on her the less she produces. I am the mediator, employee, maintenance, transportation, set up and tare down guy.

We have also had to think about CR protection and her art is protected. My wife and mother in-law become very paranoid about protecting her art to a fault. My daughter and I have the same phylosophy as Tom S. We want to get her Art out there the more people who see it and like it helps the buisness grow. When someone purchases and original they owne it. However she always ownes her designes and tools to accomplish it.

As I read through all the respones I noticed Scott Davidson is thought of as an employee in one post and a vendor in another. Is it possible roles and expectations and different personalities are the cause of so much conflict. In our family we had to take the time to understand everyones role and differences after that happened there were less conflicts.

One thing you don't want to do is **** off the artist, production can come to a screaching halt real fast and tempors can flare. They do not like to be thought of as employees. Farriers are artist and independent, it is easy for me to see Scotts view on this. I can also see Ron's view comeing from a corporate enviroment where you have employer and employee.

The goal should be to make this a win win situation. The more either side goes with the I am right they are wrong mentality the worse the problem will become. Both sides are right and wrong always is. The politics and legal issues just cloud the issue even more and creat bad blood.
Just food for thought.
Phil Armitage, CF
AFA member 7480

"Anyone who proposes to do good must not expect people to roll stones out of his way, but must accept his lot calmly if they even roll a few more upon it." Albert Schweitzer
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RE:Ink & Anvil Timeline 13 Oct 2006 21:59 #25

  • Rick Burten
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Phil Armitage wrote:
As I read through all the respones I noticed Scott Davidson is thought of as an employee in one post and a vendor in another.
Which response was that? Through his company, Ink & Anvil, Inc. Mr. Davidson solicited or was solicited by the AFA, certain job(but not employment) opportunities. I&A is a vendor. I&A agreed to a specific contract which spelled out the duties and responsibilities of all parties to the contract. If I&A,inc. had stockholders other than, for example, Mr. Davidson, then he would be responsible to those stockholders for his part in the current situation. If those stockholders held 51% of the stock in I&A and voted as a united block, they could force Mr. Davidson out of the company he founded, and install their own slate of officers. It is probably well that Mr. Davidson is, presumably, the majority stock holder of I&A stock. Because of this, he is answerable only to himself as opposed to the AFA where the leadership is answerable to the membership.
Is it possible roles and expectations and different personalities are the cause of so much conflict.
Of course its possible. However, in this instance there should be no question about the roles of either party nor the expectations. They are clearly spelled out in the contract. Personalities are a different matter. But, as I've said, this is strictly a business arrangement/agreement. The AFA required I&A to fulfill the contract as written. I&A is obligated to do so. Failure to comply, tainted by the personality of a principle to the contract have led us to this point in time. Business, like revenge, is best served cold.
The goal should be to make this a win win situation.
You've read the timeline and correspondence, do you really believe that this situation is salvageable? And if so, on whose terms? (I'm betting it will be solely and strictly on the AFA's terms)
The more either side goes with the I am right they are wrong mentality the worse the problem will become.
In what way is the AFA wrong in requiring a contracted vendor to fulfill its contract?
Both sides are right and wrong always is.
.
A man shoots and kills your wife. He says that the only reason she is dead is that she happened to be where she was and had a right to be. Does that make him right and wrong? Does that make your wife right and wrong?
The politics and legal issues just cloud the issue even more and creat bad blood.
Business is business. Something someone in this situation has apparently forgotten. What legal issues are clouding the current issue under discussion?
Rick Burten PF

In the immortal words of Ron White: "But let me tell you something, folks: You can't fix S-tupid. There's not a pill you can take; there's not a class you can go to. S-tupid is forever."
."


Je pense donc je suis
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RE:Ink & Anvil Timeline 13 Oct 2006 22:21 #26

  • tbloomer
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Tom Stovall, CJF wrote:
I still haven't figured out who owns the artwork when a client pays me to design (not build) a gate; . . .
Falls under a commissioned work by an independent contractor. Like paying a photographer for a portrait - negatives belong to photographer as does the copyright. However if the photographer is an employee of a studio, then the studio owns the rights. If someone commissions a gate of their own design, then they own the design rights. If they want to own one of your designs, they must hire you as an employee, which means that they exercise controll over you, or they must have a contractual agreement where you, as an independent contractor give them the rights to your design. In the case of I&A they were expressly contracted to produce layout materials and do***entation AND the AFA expressly owns the rights to the entire work as written in the contract. This allows the AFA to send the certification study guide to another vendor for printing without giving I&A any ownership interest in the work product. For all intents and purposes, the contract with I&A puts them in the same legal position as an employee. Therefore the AFA can fire them and keep all of the work they produced - just like if you worked as an artist in a advertising agency. The Ad agency owns the rights to everything you produce as an employee on their behalf. Since I&A was working on the layout material on behalf of the AFA, ALL of their work product belongs to the AFA, bucause they agreed to that in a contract.

I used to work for The Franklin Mint. They had their own photo studio, advertising agency, copy writing (as in advertising copy) and printing departments. There were all sorts of graphic artists and creative types working there. The Mint owned everything they produced unless it was something they did at home on their own time not using the companies resources and not in competition with the companies products.
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Here's the deal. I'm trying to keep it simple.
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RE:Ink & Anvil Timeline 14 Oct 2006 02:57 #27

I have finally recieved permission to release Exhibit 9 in the original timeline post. I have updated the original posing. You can read that email from this link of the link in the opriginal posting.
Ronald E. Kramedjian, RJF

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RE:Ink & Anvil Timeline 14 Oct 2006 02:58 #28

Rick here you state Scott is vender provideing a service to a client.
Rick Burten wrote:
Mr. Davidson is an entrepreneur. As such, he founded a company, Ink & Anvil Publications, in order to fill what he perceived as a void with potential for enhanced income generation.

While it is true that the only monetary costs to the AFA for Mr. Davidson to publish PF are strictly related to postage fees, it is also true that Mr. Davidson, is free to earn as much money from selling advertising space in PF, as he is humanly able to do. Some of us refer to this as a "Profit Incentive".

Mr.Davidson entered into a contractual relationship with the AFA knowing full well and agreeing to all terms of the contract. The success of his enterprise depended solely on his and his employee's ability to sell advertising space and by so doing generate enough revenue to both publish the magazine, pay any other business related expenses, and hopefully, turn a profit for the owner(Mr. Davidson). This is totally different from volunteering to work/provide services to the AFA.

Here Ron describes him as an employee.
Ronald E. Kramedjian wrote:
The problem that you have with this is that you seem to have the management/employee model up side down in your head. As an employer if I ask an employee to perform a function that is inside the scope of his duties that request has the same weight as an order. If the employee refuses that request, they are in fact being insubordinate. I as the employer then have to decide if I am going to work out the problem or I am going to fire the employee.

In this case the employer, the AFA, has made repeated requests that are within the scope of their employment of the employee, I&A. I&A has been defiant, resistant, and insubordinate. If it had been me, I would have terminated their contract after the breach on the study guide. However, the AFA, as evidenced by the numerous letters and emails have been trying to move I&A from insubordination, into their proper subordinate role as an employee of the AFA and in cooperation with AFA policy. However harshly worded the letters or email have been they have not contained the words, "YOUR FIRED." Unfortunately the employee in this case is not taking the hint.
Phil Armitage, CF
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"Anyone who proposes to do good must not expect people to roll stones out of his way, but must accept his lot calmly if they even roll a few more upon it." Albert Schweitzer
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RE:Ink & Anvil Timeline 14 Oct 2006 04:18 #29

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Phil Armitage wrote:
Rick here you state Scott is vender provideing a service to a client.

Here Ron describes him as an employee.
The vendor's contract puts I&A in the same position as an employee because they have no control over or ownership of the work product. So the law views the relationship between the AFA and I&A exactly like they would view an employer/employee relationship.

Without a written contract I&A would be able to function as an independent contractor and thus retain rights to some of the work product. With the contract the law applies exactly like it would between an employer and an employee. In fact if I&A refuses to return the work product to the AFA they could be prosecuted in civil and criminal court for theft of intillectual property - which, by the way is a felony under federal and most state laws.
Tom Bloomer
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Here's the deal. I'm trying to keep it simple.
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RE:Ink & Anvil Timeline 14 Oct 2006 04:28 #30

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Tom Stovall, CJF wrote:
I'm admittedly a slow learner, but it didn't take me too long to discover that it's a helluva lot easier to make slight changes in the components of a new composition than it is to re-draw every component of that composition. :)
Us ex-computer programmers call that object oriented design or component object models . . . reuseable source. See, your left brain works just as good as your right brain. :)
Tom Bloomer
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Here's the deal. I'm trying to keep it simple.
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