Learning Curves

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In this newsletter:
*** Earthsea Grief
*** Poetic Justice
*** News & Current Projects

Earthsea Grief

So I have finally gathered up my courage, and got some nice prints done of those Earthsea images I have been painting, and written a letter to Mrs Le Guin, saying how much I admired her books and that I'd done those paintings and hoped she liked them - and also asking for permission to publish them as separate prints and/or as a calendar, which is what I have been setting myself as a goal, so that I would keep myself motivated to produce as many images as I would need to be able to do that.

The reply I got last week from her agent was short and to the point:

"Thank you for your request for information on the availability of commercial rights (which covers the publication of calendars, prints, etc.) on the Earthsea series which Ursula K.Le Gun has passed on to me for handling.

Copyright in those works is held, not by the author, but by the Inter-Vivos Trust for the Le Guin Children. As these rights are intimately connected with the film rights in the works, they are not available for separate licensing at this time."

Naively, I had assumed that the matter would be similar to clearing the rights to perform music by a living composer, which is knowledge I have gained from my previous work as a professional musician.

The way that works is that, essentially, once a work of music is published as a score, anyone has the right to perform or record it. There is an established procedure for collecting the royalties on behalf of the composer. Part of it is covered by a percentage of the price of the original score (one must own a legally acquired score in order to be entitled to perform the work) - the other part is handled by organizations such as APRA (in Australia/New Zealand) or GEMA (in Germany), who keep track of all the performances and recordings, collect payments from the performers, labels or venues in return for granting them a license, and distribute this income to the composers. I never even have to ask permission of the composer or their agents themselves (unless I want to make an arrangement of the piece, which is different).

This procedure is the same whether it's the work by some obscure experimental composer, or pieces from the Lord of the Rings film soundtrack by Howard Shore. I recorded a few of those on my latest CD a couple of years ago, and the fee I had to pay for licensing them (which took into account the number of CDs I was going to produce and my likely profit from them) - was very moderate, less than NZ $ 300 all told, and this included a couple of other pieces that were also under copyright. A small amount, considering the production cost as a whole.

So when I got the above email from Le Guin's agent, telling me that I was essentially forbidden to offer these images for sale at all, I was reeling with shock. There goes a year of sustained effort, and a chance to present what is, so far, some of my best work, to a wider public.

I asked for clarification, explained that this was a matter of making small limited edition runs of art prints, more for my own pleasure than for any expectations of a major - or, in fact, any - profit, and if there weren't any ways and conditions how I could still do this and not infringe on anyone's rights. The much longer email I received in return read as follows:

"Any permission we granted you would not be worth the paper it was written on. One has to have clear title to the rights to be able to grant them. There is nothing either I or the Trust can do. Nor is this the fault of the author.

Even if the rights were currently available, commercial rights are part of the package any filmmaker wants. If we allow them to be exploited separately, it could impact any film deal to the point where it may fall through. It does not matter than it is not pictures of particular actors or sets, what matters is the subject: Earthsea. That what has been licensed to the filmmakers. The Trust would be remiss in its duties if it risked a lawsuit from the current licensee of the rights. You may feel that this has nothing to do with the movie or tv movie but I can promise you that the producers will feel differently about the contracts the Trust has signed with them.

Also, for this kind of a license, a lawyer is needed. (If rights were available.) Our legal costs would be around $5000 because whether it is a permission for fifty or fifty thousand copies, legally it is the same. But the point is that commercial rights are not available as they are tied up with the film rights which mean that if and when they become available it would be only though the film studio. This has been the case in the industry ever since the entire series of Star Wars movies & merchandise showed the studios the potential; I have no way of turning back the clock and changing what is.

This does not mean that you cannot exhibit your paintings but you cannot sell calendars and prints on the internet and call them Earthsea. As for a time frame, there is no way I can tell which options will be picked up, and for how many movies in a series. But nonetheless, the rights would part of the next film deal and then you would have to deal with the new studio."

This, I still have some trouble making sense of. There have already been two film/tv versions made from those books - the anime, and the tv series. One would assume that each of them would have had their own separate merchandise attached. Also, the way it is phrased, it would seem that they are hoping to sell *another* set of movie rights, but this is a deal that has not substantiated yet? And they cannot grant me permission to sell my prints to a handful of people in my tiny little corner of the internet, because this might compromise a future movie deal -- but the two previous deals they have already made do *not* compromise such a deal?

The agent also added the information that:

"As for illustrations, they are a different kettle of fish as they are published with the text. It is the responsibility of the publisher to commission artwork for the printed book. The author may have approval rights (or in this case, the Trust) but it is the publisher that commissions them. You would have to check with the various publishers to see if they are currently in the market for new artwork. The best way to do this is through your agent, if they have one. I am sorry that your inexperience has led you to expend so much effort where the rights are not available. This is why professional illustrators always have a signed agreement before starting work on a project. "

... and I am obviously *not* to be considered a professional illustrator.

So, I have been chewing on this for a few days, and drawn my blanket over my nose and cried a bit, and then gotten up and started up Google to see if I couldn't find out a bit more about the intricacies of the legal situation myself. And I have been remarkably unsuccessful.

The one thing that emerged from my research is that these are really rather murky waters, and there don't seem to be any particularly clear-cut rules and regulations for this particular situation.

Illustration in a professional context, I learned, is simply not done outside of being commissioned by a publisher — be that for a cover image, or an illustrated edition, or indeed a calendar or a poster. To simply feel inspired by a piece of text and create an artwork based on it, I am told, is nowadays called "Fan Art", which strikes me as a somewhat derogatory term in that it implies an amateur, rather than a professional, context. And while I could not establish any sound legal or indeed economical reason why a publisher would be automatically opposed to licensing an independent illustrator like myself to self-publish their work, it seems that this is really entirely up to whoever holds the rights on the author's work — which will usually be the publisher, unless they have been sold to a film studio.

Mostly, I get the impression, it is the sheer economic power of the film industry that makes people reluctant to even consider licensing those rights to anyone else — certainly not some punk from New Zealand with a self built website and no track record as a professional artist. Even though, in my view, there could be advantages in this for the publisher: For one, it would it be an additional source of income from licensing fees — even if, admittedly, not one that could compete with what a film deal would bring. Provided of course, that the publishers are not producing and selling products like calendars and posters themselves. But this would be the case here. There is simply nothing in that vein available for any of Ursula Le Guin's books.

It would also be a form of free advertising — and since I am marginally involved with the advertising industry, in my capacity as a web designer, I am well aware that this is not without value, given the desperate efforts that marketing professionals make, these days, to grab their oversatiated target market's attention.

What I did manage to establish beyond reasonable doubt, is that the actual painting of the image does not, in fact, infringe anyone's *copyright*.

Copyright is, quite literally, the right to make *copies* of a work of art, literature, music, or other creative discipline. One of the basic tenets of "copyright" is that you cannot copyright an idea — it has to have material form: as a text, or an image, or an object, or a sequence of sounds.

So, if I take a piece of text from a book and use it in a visual artwork or a song, that's a question of copyright.
If I sample a piece of music someone else has recorded, and use it for my hip hop song, that is a question of copyright.
If I use someone else's piece of music as soundtrack for my movie, that is a question of copyright.
If I take a copyrighted photo and use it in a photomanipulation - OR EVEN as reference for a painting - that is a question of copyright.
If I take a pre-existing image, eg. a character from a film or a cartoon, and create a visual artwork incorporating elements from it, that's a question of copyright (this is what the term "fan art" should properly be applied to).

But if I take an idea of a place or a character or scene that an author has described with words, and make it into an image, is that a question of copyright? Seeing that it does not involve making an actual *copy* of anything that already exists in material form, it would appear that it is not.

What is, however, a problem, is to use the title of the work, or any passages of text, or names of characters or places that are particular to the story. These *would* be protected by copyright, and are often also registered as trademarks.

It has been confirmed to me by several people that as long as I don't *call* the images "Earthsea" or make reference to the text that has inspired them, I am well within my rights, and can copy and print and monetize these images all I want.

The trouble is, of course, that this takes away an important dimension from the image. I have spent much love and care to try to stay truthful to the text, and come up with images that hopefully do some justice to whatever the author might have seen in her mind. If I cannot refer these images to the story they are supposed to illustrate, who will notice the effort that went into that?

Besides, would this not clash with the moral right of the author to be credited with whatever stimulus they have provided to the finished work? To my old-fashioned mind, it would seem a disrespectful thing to do.

There is, surprisingly enough, a law that states explicitly that artists are entitled not only to display their work, but also to make money from it — provided, of course, that they do not infringe the rights of third parties. Remember, however, that I had every intention to do the right thing and get the appropriate permissions, but they were denied me. The principle of "Artistic Freedom of Expression", which protects the rights of artists to express themselves in whatever manner they deem suitable, is closely linked to the right to Freedom of Speech. It does carry some legal weight, at least on paper. Read more about copyright issues here.

It would seem to me that in this case, it is commercial interests that clash with my right to creative freedom of expression — not so much the rights of the author, in fact, but the assumed rights of people who stand to make a lot of money from the commercial exploitation of the author's popularity. I think it is very sad that because of these complexities and conficting interests, works like Ursula Le Guin's "Earthsea" novels, which are practically bursting with images, have, so far, remained largely un-illustrated. It seems a loss, in far more ways than have to do with money.

Ursula Le Guin: The Farthest Shore: Equinox chant (detail) Ursula Le Guin: The Farthest Shore: Equinox chant (detail) Ursula Le Guin: The Farthest Shore: Equinox chant (detail) Ursula Le Guin: The Farthest Shore: Equinox chant (detail)

Ursula Le Guin: illustrations for The Farthest Shore:: Equinox chant (oil on canvas)

Poetic Justice

Much of what I have written above was originally posted in my DeviantArt journal, where it sparked a discussion that quickly spread over a couple of other illustration-related internet forums and blogs. If I had planned this as an online publicity stunt, it would have been a rousing success!

One online friend not only found me the link I have posted above and a few others, he also posted about my troubles on a certain internet forum, of which I used to be a regular member. This forum belongs to a well known artist and illustrator, who has been a mentor and a friend to me in the past (not naming any names here so as not to feed Google, but you may make an educated guess).

For reasons I won't go into, we have been out of touch for the last couple of years — even though he is currently in Wellington to work on a high profile movie project (and I don't think that's giving away an industry secret, either) :) A few days after abovementioned post had been made on his forum, and a heated discussion ensued, I found a surprise email in my inbox, with an offer of help and advice, and an invitation to meet up for a cup of coffee. Which we did.

The morale of this story being, that even when it is a bummer that things don't work out the way they were planned, sometimes there are other benefits that are entirely unlooked for. I now have some decisions to make about what to do with these Earthsea images, or even if it is worth completing the series (there are, of course, other options than trying to publish them, as a calendar or otherwise). But if nothing else comes from it than an opportunity to reclaim a precious friendship, then it wasn't a wasted effort to have painted them.

I have a weird suspicion that this little story would please the wise old lady who wrote those books. ;-)

News & Current Projects

This newsletter has been running on to quite some length already, so I'll keep the rest of it short. Given the excitement of the past two weeks, there isn't any new artwork to report, other than the new Earthsea image I posted above.

My latest website has gone live: www.topnotchnz.co.nz is a classical example for a simple html/css based business web site, with some PHP interactivity thrown in, in the shape of a contact form to obtain a quote.

The design idea is quite simple and obvious, really. The logo and images were provided by the client, and I based my design around them. The brick wall navigation bar was quite a bit of a fiddle to write in css, but turned out neat in the end I think. The page navigation and sections are straightforward - I made a couple of suggestions regarding navigability and SEO, which they were quite happy with, and I also planned and designed their contact form.

Here's what Thomas, one of the business owners, had to say about it: "Looking great. Love the form! Has turned out really well. Awesome thanks Astrid is looking really good and am stoked with how have laid out the opening page."

A day after the site went live, I had a call from a potential new client to whom they have recommended me. Yeah, just had to boast a bit. :-)

I will be doing some more teaching: "Online Promotion for Everyone" is the name for a new series of one hour seminars, to be held once a month on the 4th Wednesday of the month, from 7.30 pm to 8.30 pm, at the Featherston Community Center. The first date is 24 March. The cost is $ 12 per session. Please bring your own laptop or mobile internet device if you have one. For more infomation, please email me, or visit the Featherston Page on Facebook.

That's it for this month, folks! Life sure remains an interesting affair.

Arohanui, from Asni