SD07: Todd McFarlane

1. July 25, 2007

   Heidi MacDonald
   The Beat
   The New Blog of Comics Culture
   pwbeat.publishersweekly.com/blog/2007/07/22/sd07-todd-mcfarlane/

   Dear Ms. MacDonald:

   Todd McFarlane does not create -LITHOGRAPHS-.

   The so-called Todd McFarlane “lithographs” are actually non-disclosed reproduction/posters of his preexisting paintings and/or videos.

   This is inadvertently confirmed on Tom McFarlane’s spawn.com website in one of the archived articles titled: “DISTURBED’S ‘LAND OF CONFUSION’ VIDEO POISED TO GO LIVE Plus News on Comic-Con Lithograph June 30, 2006 Copyright 2007 TMP International, Inc.” In part, it states: “We’ve decided to create limited-edition super-glossy lithographs of one of the penultimate scenes from the video to be offered as giveaways at the upcoming San Diego Comic-Con in July. Stop by the McFarlane booth (#2601) and ask for your copy. Remember, these lithos are super limited so get there early, because once they’re gone, they’re gone!”

   The problem with this Todd McFarlane promotion is under U.S. Customs regulations “lithographs” must be “wholly executed by the artist” and “excludes all mechanical and photomechanical processes.”

   In otherwords, you would never trivialize a lithograph as a copy of anything, much less a video.

   Other -red flags- are: 1) “we’ve decided to create” when lithographs are “wholly executed by the artist,” 2) “super-glossy lithographs” when massed produced reproductions are coated (glossy or mat) to prevent ink transfer and 3) “super limited so get there early because once they’re gone, they’re gone” when under U.S. Copyright Law the reproduction rights would be owned by the printer who could reproduced more in the future if they choose to do so.

   Now, of course, Todd McFarlane could have had those reproductions right reassigned in writing back to him from the printer. Then that would be an admission Todd McFarlane knew they were reproductions before the were misrepresented as lithographs.

   Todd McFarlane’s misrepresentation of reproductions as original “works of visual art” ie. lithographs, with or without intent, perpetuates misconceptions by the public.

   California Civil Code statutes 1738 -1745 requires disclosure of reproductions sold for $100 or more. Whether he is violating the letter of these statutes, misrepresenting reproductions as lithographs helps poisons the marketplace for legitimate artists, much less those who sell fully disclosed reproductions.

   In otherwords, Todd McFarlane is selling pyrite and leaving out the “fool” part to either to receive accolades he hasn’t earned much less deserve and/or eventually the monetary returns this kind of -Bait & Switch- can bring.

   So, what are true lithographs?

   Lithographs are -artist created- original “works of visual art.” This original creative medium first begins with the artist drawing on a stone, plate or mylar and when the artist drawn image is completed it is then printed by the artist, hence an original “work of visual art” ie. lithograph.

   On the otherhand, reproductions are copies of art done by someone other than the artist.

   By definition, rule of law and laws of nature that fact is irrefutable.

   Therefore, in the interest of connoisseurship for your readers and you, I have enclosed below, for your review, an addendum below that documents briefly many of these contentious issues of authenticity.

   In closing, without full and honest disclosure of reproductions as reproductions, how can the public give informed consent?

   Thank you for your consideration.

   Sincerely,

   Gary Arseneau
   artist, printmaker of original lithographs, gallery owner, scholar & author
   Fernandina Beach, Florida

   ADDENDUM:

   WHAT IS A REPRODUCTION?
   On page 350 in Ralph Mayer’s HarperCollins Dictionary of Art Terms & Techniques the term “reproduction” is defined as: “A general term for any copy, likeness, or counterpart of an original work of art or of a photograph, done in the same medium as the original or in another, and done by someone other than the creator of the original.”

   This is further confirmed by U.S. Copyright Law.

   U.S COPYRIGHT LAW – WORK OF VISUAL ART
   Under U.S. Copyright Law 101. Definitions, a “work of visual art” is defined as: “ a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

   U.S COPYRIGHT LAW – RIGHTS OF ATTRIBUTION
   Furthermore, under U.S. Copyright Law 106A. Rights of Attribution – “shall not apply to any reproduction.”

   U.S COPYRIGHT LAW – DERIVATIVES
   Additionally, under U.S. Copyright Law 103. “Subject matter of copyright: Compilations and derivative works,” in part, it states: “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work.”

   In otherwords, under U.S. Copyright Law, reproductions cannot be “attributed” to a living artist, much less a dead one

   Subsequently, any “derivatives” ie. reproductions of an artist’s original artwork and those reproduction rights, under U.S. Copyright Law, would be owned by the “chromist(e)” who drew it and/or the printer who reproduced it.

   Therefore, unless the artist had those “reproduction rights” reassigned in writing back to them from the “chromist(e)” and “printer” who reproduced them, those same individuals would have the right to reproduced more without the permission or knowledge of the artist.

   Of course, if the artist understood their rights under U.S. Copyright Law and had all “reproductions rights” reassigned back to them from these individuals who reproduced their original artwork, then that would be a written admission that they knew from the very beginning that they were “reproductions” and not “works of visual art.”

   This perspective is confirmed by the PRINTING TRADE CUSTOMS (copy below) published by the Printing Industries of America, Inc. that documents their understanding that if a printer reproduces the work they own the tools ie. plates, negatives and the like used to reproduce it.

   GICLEE
   A reproduction of a pre-existing work of art, such as Bev Doolittle’s “Beyond Negotiations” painting, is a -reproduction-.

   So, if an artist has their artwork scanned and reproduced with the so-called -GICLEE- technology, you would have a -reproduction-. Aside the issue of disclosure, a real concern for “giclee” is the lightfastness issue. In otherwords, is the so-called -GICLEE- technology the best or the worst reproduction process in the industry?

   INKS OR DYES
   The giclee reproduction technology up till recently only used water-based “dyes” (animal, vegetable or aniline). How can you determine if the giclee reproduction has been reproduced using water-based dyes?

   The answer is do the printer, gallery or artist recommend not getting the image wet? Dyes can run if they get wet. (Inks, when dry, do not.) Or do they recommend a protective coating which is another red flag to protect the water-based dyes from running, much less assist in its’ lightfastness.

   On the otherhand, recent technological advances in grinding ink (mineral) down to 4 micons and coating them with clear polyuthyrene allows them to use the same printers to reproduce without clogging the jets which would happen immediately with normal ink. So, by using clear polyuthyrene coated inks, the image once dry will not run if the image should somehow get wet.

   LIGHTFASTNESS
   The other benefit with the use of ink instead of dyes is the lightfastness.

   In October 1996, Art Calendar devoted almost an entire published issue to giclee reproduction. The lightfastness issue of dyes used for giclee reproduction were documented from the testing from Group Leader, R&D Paste Inks, Handschy Industries Charles Lakie. In reference to digital dye-based reproductions ie. “giclee,” Charles Lakie wrote: “The difference in fade resistance can be compared to a car (Mel’s Litho) vs. a ceral box (digital editions). The car’s color can withstand any earthly environment and the color will still be there—the color is formulated to last longer than the car itself. The cereal box is formulated to last as long as it takes to put the box of cereal on the store shelves, sell it, put it into a cabinet, take it out only to eat it, and eventually thorw it away. There is a minimal exposure to any type of light, so cheaper pigments are used. However, if by chance the box ended up outdoors under the same conditions as a car, the colors would disappear from the box — this would take anywhere from a couple of days to a couple of weeks.”

   So, whether -GICLEES- are lightfast or not, they are, at best, -REPRODUCTIONS-.

   WHAT IS A LITHOGRAPH?
   Lithographs are original works of visual artwork created by an artist. This is confirmed by Works of Art, Collector’s Pieces Antiques, and Other Cultural Property * An Informed Compliance Publication * U.S. Customs April 2004 which in part, states: “The expression ‘original engravings, prints and lithographs’ means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process.” (More documented references about lithographs at the end of this email.)

   OFFSET LITHOGRAPHS
   Additionally, to preempt any confusion or misconceptions, an “offset lithograph” is a drawing by the artist on a plate and printed by the artist or under their approval using an offset lithographic press. Therefore, an “offset lithograph” also would never be trivialized as a “reproduction.”

   On the otherhand, a reproduction reproduced on an offset lithographic press is a reproduction.

   An offset lithographic press is a tool. How that tool is used determines what comes out of it.

   http://www.copyright.gov/title17/92chap1.html#101
   Copyright Law of the United States of America

   § 101. Definitions2 A “work of visual art” is —  (1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

   § 106. Exclusive rights in copyrighted works36 Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work;

   § 103. Subject matter of copyright: Compilations and derivative works (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

   § 101. Definitions2 A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction,

   § 106A. Rights of certain authors to attribution and integrity37 (a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —  (1) shall have the right —  (A) to claim authorship of that work, and (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction,

   PRINTING TRADE CUSTOMS
   Printing Industries of America, Inc.

   6. PREPARATORY MATERIALS Working mechanical art, type, negatives, positives, flats, plates, and other items when supplied by the printer, shall remain his exclusive property unless otherwise agreed in writing.

   For additional information log on to U.S. Copyright Law’s www. copyright.gov website

   FIVE DOCUMENTED DEFINITIONS FOR LITHOGRAPH:

   1. Works of Art, Collector’s Pieces Antiques, and Other Cultural Property * An Informed Compliance Publication * U.S. Customs April 2004 “The expression “original engravings, prints and lithographs” means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process.”

   2. 500 YEARS of Graphic Art Techniques by Kristin Anderson. “The artist draws with greasy chalk (also called crayon) or greasy ink (called toucher in French and tuche in German) on a slab of Bavarian limestone…” or “ …is created with traditional drawing tools and pigments on translucent Mylar drafting film…”

   3. A GUIDE TO THE COLLECTING AND CARE OF ORIGINAL PRINTS sponsored by the The Print Council of America and authored by Carl Zigrosser and Christa M. Gaehde. “An original print is a work of art, the general requirements of which are: 1. The artist alone has created the master image in or upon the plate, stone, wood block or other material, for the purpose of creating the print. 2. The print is made from the said material, by the artist or pursuant to his directions. 3. The finished print is approved by the artist.”

   4. The Fifth Edition of the Artist’s Handbook of Materials and Techniques authored by Ralph Mayer “The major traditional graphic-arts processes of long standing and continued popularity are lithograph, etching, drypoint, woodcutting or wood engraving, aquatint, and soft-ground etching. …The term “graphic arts” excludes all forms of mechanically reproduced works photographed or redrawn on plates; all processes in which the artist did not participate to his or her fullest capacity are reproductions.”

   5. The Oxford Dictionary of Art by Ian Chilvers, Harold Osborne and Dennis Farr. “…lithograph in it simpler forms has always attracted artists as a means of original expression. It is very direct and, since its technical side can be left to the lithographic printer, the artist need do no more than draw upon the stone.”

   6. The Tamarind Book of Lithography: Art & Techniques. “Any lithograph printed from a stone or plate conceived and executed by the artist is an original lithograph…”

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2. Gary, Do you realize you are screaming at a wall?

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3. Anyone go to this?

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