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marfknox
SFN Die Hard
USA
3739 Posts |
 Posted - 02/04/2006 : 16:59:19
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As an American, and especially as an artist, I'm very concerned about this: http://arstechnica.com/news.ars/post/20060203-6112.html
H.R. 683 or the Trademark Dilution Revision Act would increase the control that corporations have over use of their trademarks. This is scary because it could intimidate, or worse, make it illegal to use trademarks in satire. In other words, limit artists and critics ability to criticize and critique said company.
But here's the weird thing about this Bill. According to this article's analysis, this particular bill does not stop the use of trademarks in things like "reportage" and "commentary". It would, however, stop an artist from showing and selling an oil painting of a still life that happens to include a can of coke. So then I think, what the heck? Why would corporations want this Bill to pass since it would only limit what basically amounts to free advertising for them!?
My husband's theory is that this bill is really "the tip of the wedge". In other words, even though this bill hurts them more than helps them, they are hoping it will start a trend toward companies eventually have TOTAL CONTROL of their trademarks.
So if this passes, will it mean that most of Andy Warhole's work will suddenly be worthless? Hmmm...
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"Too much certainty and clarity could lead to cruel intolerance" -Karen Armstrong
Check out my art store: http://www.marfknox.etsy.com
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GeeMack
SFN Regular
USA
1093 Posts |
Posted - 02/04/2006 : 19:35:30 [Permalink]
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quote:
Originally posted by marfknox...
So if this passes, will it mean that most of Andy Warhole's work will suddenly be worthless? Hmmm...
Or highly sought, highly valuable black market commodities? 
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Dave W.
Info Junkie
USA
26022 Posts |
Posted - 02/04/2006 : 20:35:15 [Permalink]
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Well, why shouldn't companies have "TOTAL CONTROL" over their trademarks?
Something else: "fair use" in trademark law has always been much more restrictive than in copyright law, anyway. In fact, no laws have ever been passed by any legislature which protects a parody of a trademark (for example) as a fair use, such a protection has only come from the courts (and from what I've read, depends largely on whether the judge has a sense of humor or not). "Statutory fair use" in trademark law is very narrow, and does little more than prevent the manufacturer of Crest toothpaste from suing an author who writes "the foam blew off the crest of the waves..." I can't think of any way that the statutory fair use would protect someone who painted a Coke can at all (such a painting being neither descriptive nor accidental), and it seems that if a parody painting of a Coke can wasn't found to be funny, it wouldn't be protected at all right now anyway.
In an online game I used to administer, one of the other admins had created a gigantic area with obvious parodies of Barbie dolls struting around (well over two dozen in-game "plastic doll" characters). "Queen Barbie" and her sidekick Vicky were leather freaks in the game. Even though our game was visited by all of 30 people a day, Mattel found out about it and sent us a cease-and-desist request, with a threatened lawsuit. Since we weren't making any sort of social commentary on Mattel or Barbie, and instead just making fun of them (and none of us had deep pockets), we had little choice but to comply. Compliance involved nothing more than renaming Barbie, Ken and one other in-game character (since Mattel had no trademarks over an axe-weilding doll named Fritz, if I remember correctly, or most of the others), but the renamed characters were still described in such a way that everyone knew who they were meant to mock. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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Snake
SFN Addict
USA
2511 Posts |
Posted - 02/04/2006 : 22:14:16 [Permalink]
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quote:
Originally posted by marfknox
As an American, and especially as an artist, I'm very concerned about this: http://arstechnica.com/news.ars/post/20060203-6112.html
H.R. 683 or the Trademark Dilution Revision Act would increase the control that corporations have over use of their trademarks. This is scary because it could intimidate, or worse, make it illegal to use trademarks in satire. In other words, limit artists and critics ability to criticize and critique said company.
But here's the weird thing about this Bill. According to this article's analysis, this particular bill does not stop the use of trademarks in things like "reportage" and "commentary". It would, however, stop an artist from showing and selling an oil painting of a still life that happens to include a can of coke. So then I think, what the heck? Why would corporations want this Bill to pass since it would only limit what basically amounts to free advertising for them!?
My husband's theory is that this bill is really "the tip of the wedge". In other words, even though this bill hurts them more than helps them, they are hoping it will start a trend toward companies eventually have TOTAL CONTROL of their trademarks.
So if this passes, will it mean that most of Andy Warhole's work will suddenly be worthless? Hmmm...
1st of all, "reportage". Odd word!
Anyhow...I'm an artist too and wouldn't like if my logo was easily taken by someone else.
If a company pays a lot of money to have a logo created then goes to the trouble to reserve it, etc., etc., that's just the point of doing all that. To keep others from usurping it.
Perhaps that was meant to be funny about Warhole but I doubt his work will become worthless. But to be serious, the art market is strange, any given work can become more or LESS valuable at any time.
As an artist I think ones work should be 'original' of course that's difficult, I mean unique. Why would I want to paint a Coke can anyway? I'm not all that impressed with the Rothkos of the world.
Ps. I will look over that bill sometime, perhaps will have a different opinion later. |
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marfknox
SFN Die Hard
USA
3739 Posts |
Posted - 02/05/2006 : 00:35:07 [Permalink]
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Dave W. wrote: I can't think of any way that the statutory fair use would protect someone who painted a Coke can at all (such a painting being neither descriptive nor accidental), and it seems that if a parody painting of a Coke can wasn't found to be funny, it wouldn't be protected at all right now anyway.
A painting is not descriptive??? Yes it is! That's why it's called "representational" art! And what do you mean by saying that if a parody isn't found to be funny that it wouldn't be protected? Funny by who? Huh?
I can see why you changed the names form Barbie and Ken in your game: you didn't have the money and perhaps simply didn't want to do the court battle. But that doesn't mean you wouldn't have won in court, nor does it mean that Matell was right to threaten you. The whole purpose of copyright is to product the identification of a product with consumers. In other words, so no other company can use the logo of a successful company to sell their product by fooling consumers. But all parodies - even if you are just making fun of them for the sake of entertainment - are allowed as long as a reasonable viewer would not confuse your product with the real company. That is why Andy Warhole could do his Brillo boxes, and that is why Saturday Night Live can do fake news stories about the Gap and Guess clothing companies.
In answer to your question about "Well, why shouldn't companies have "TOTAL CONTROL" over their trademarks?" -Because people should have to right to make fun and make critical commentary and report on companies and their products. If companies and products are identified by logos, then the logos should be able to be used in parody, again, as long as the parody wouldn't confuse a reasonable consumer into thinking it is associated with the original company/product.
Snake, we're not talking about someone stealing your logo. That is already protected. Warhole's work was not unoriginal - it was meant to be about brand-names and commercialism in our post-industrial culture. His paintings wouldn't have had the same meaning if he didn't use the actual logos and brand names. Also, the sort of thing we're talking about doesn't usually hurt a company's business. It either a.) provides them with free advertising, such as when a painter does a still life of a coke can. Or b.) acts as a parody - which is criticism and should be allowed! Do you think Weird Al is stealing the songs he produces? Of course not, he's making fun of them, and that is and should be perfectly legal.
But I agree, "reportage" is a weird word. |
"Too much certainty and clarity could lead to cruel intolerance" -Karen Armstrong
Check out my art store: http://www.marfknox.etsy.com
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| Edited by - marfknox on 02/05/2006 00:36:22 |
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Snake
SFN Addict
USA
2511 Posts |
Posted - 02/05/2006 : 01:58:09 [Permalink]
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quote:
Originally posted by marfknox
Snake, we're not talking about someone stealing your logo. That is already protected. Warhole's work was not unoriginal - it was meant to be about brand-names and commercialism in our post-industrial culture. His paintings wouldn't have had the same meaning if he didn't use the actual logos and brand names.
Then what do you or that bill mean by 'TOTAL CONTROL of their trademarks'? Everything should be protected, companies should have control if they pay for it. Did I say stealing? If so, it's all inclusive. Stealing, using (without permission), copying, whatever. When a brand name has recognition, it should be viewed as the owner intends.
(maybe I'm over reacting but I've had some of my photos ripped off and it bothered me to know others showed them without asking. It's my work, my effort, my life and soul. It was also my fault, haha but I do know the feeling. I can understand how a company would feel if they see their image used when they might not have intended it to be a certain way)
Yes, I know the statements of pop art, cubism, minimalism and all the other schools. I don't approve in most cases. This is not the place to explain what is original. Yes, he was original in one way, the concept and execution but that's not what I meant.
But still, couldn't someone who wanted to do a work like that at least try to get permission from the person or company he wants to immortalize?
I just remembered, my teacher doesn't let us use a photograph unless it's one we took ourself. She even said, if someone paints a picture of a photo that someone else took that could be illegal. As it should be!
> But I agree, "reportage" is a weird word.
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GeeMack
SFN Regular
USA
1093 Posts |
Posted - 02/05/2006 : 07:55:09 [Permalink]
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quote:
Originally posted by marfknox...
But I agree, "reportage" is a weird word.
But a perfectly good word nonetheless! re·por·tage (re por tazh') n. 1. The reporting of news or information of general interest. 2. Something reported. |
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filthy
SFN Die Hard
USA
14408 Posts |
Posted - 02/05/2006 : 09:47:16 [Permalink]
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But then, look at the opportunities for satire it would open: "Croaka-Cola; Dorf (Ford)..... " They'd have to copywrite the entire, english language and the alphabet to stifle it.
And then it'd just go undergrond.
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"What luck for rulers that men do not think." -- Adolf Hitler (1889 - 1945)
"If only we could impeach on the basis of criminal stupidity, 90% of the Rethuglicans and half of the Democrats would be thrown out of office." ~~ P.Z. Myres
"The default position of human nature is to punch the other guy in the face and take his stuff." ~~ Dude
Brother Boot Knife of Warm Humanitarianism,
and Crypto-Communist! 
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Snake
SFN Addict
USA
2511 Posts |
Posted - 02/05/2006 : 16:00:53 [Permalink]
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quote:
Originally posted by filthy
But then, look at the opportunities for satire it would open: "Croaka-Cola; Dorf (Ford)..... " They'd have to copywrite the entire, english language and the alphabet to stifle it.
And then it'd just go undergrond.
That reminded me of a 'T' shirt that one of the members of the band I love was wearing on an album cover several years ago. It's difficult to see but at 1st glance it looks like a Coca Cola label. Red shirt with white lettering in the style of the logo. But then you realize it says Cocaine. I wonder if the real Coca Cola company thinks that's funny or good for business. |
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marfknox
SFN Die Hard
USA
3739 Posts |
Posted - 02/05/2006 : 18:05:40 [Permalink]
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Snake,
I still don't think you are getting the difference between stealing and critizing. You wrote: "When a brand name has recognition, it should be viewed as the owner intends." Recognition should NOT be always viewed only as the owner intends. Are you against parodies and satire and journalistic criticism of companies through art, articles, cartoons, etc.? Again, the laws should protect both the consumer and business against people who cause confusion. But nobody reasonable thinks that Andy Warhole's Brillo boxes are part of the Brillo company, nor does anyone think that guy who drew the VW Bug with bugs is associated with the company VW. Nor would anyone think a still life painting that happens to include a coca cola bottle is associated with Coke. There is no brand confusion in those cases so it should be perfectly legal. And if an artist wants to critize the role Barbies play in American culture, they should be able to use the image of a Barbie in a work of art. If a company puts itself out there to be recognized, it can't assume that the only publicity it recieves will be positive. |
"Too much certainty and clarity could lead to cruel intolerance" -Karen Armstrong
Check out my art store: http://www.marfknox.etsy.com
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Dave W.
Info Junkie
USA
26022 Posts |
Posted - 02/05/2006 : 20:16:51 [Permalink]
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quote:
Originally posted by marfknox
A painting is not descriptive??? Yes it is! That's why it's called "representational" art!
"Descriptive" is a term of art within the field of trademark law. An infringement defense of a set of words, for example, can be based upon the fact that the words are simply descriptive of your own product, and not attempting to ride the coattails of someone else's trademark. For example, if there were a product called "GRASS GREENER," they could potentially sue some lawn-care company who advertise that they "will make your grass greener," but since the trademarked phrase isn't referring to the GRASS GREENER product, but is simply descriptive of what the lawn-care company purports to do. In that sense, there's no possible way a painting of a Coke can is "simply descriptive," since the only thing it could possibly describe is a Coke can.quote:
And what do you mean by saying that if a parody isn't found to be funny that it wouldn't be protected? Funny by who? Huh?
Didn't I say? Yes, "...from what I've read, depends largely on whether the judge has a sense of humor or not." A judge gets to decide what is a defensible parody and what isn't. Just claiming that something is a parody isn't nearly enough to protect it under trademark law: it's gotta be a parody that the judge will find funny. And as of now, there are no protections for the use of trademarks for "social commentary" (outside of parodies). There is an exemption for "reportage," but you won't find it being a law as in "signed into law by the President," it only exists due to judges taking it upon themselves to grant such provisions.quote:
I can see why you changed the names form Barbie and Ken in your game: you didn't have the money and perhaps simply didn't want to do the court battle.
No, we didn't have a legal leg to stand on.quote:
But that doesn't mean you wouldn't have won in court...
You're dreaming.quote:
...nor does it mean that Matell was right to threaten you.
They had every legal right to sue. Sending us a request to voluntarily cease and desist was a pleasantry they had no obligation to extend.quote:
The whole purpose of copyright is to product the identification of a product with consumers. In other words, so no other company can use the logo of a successful company to sell their product by fooling consumers.
A trademark (I'll assume you mistyped) must be vigorously defended to be valid. Xerox lost their trademark protection for the simple fact that word-of-mouth ran faster than they could keep up. It's why the LEGO company doesn't want people calling the things they sell "Legos," but instead "LEGO brand building bricks" (and also why this isn't called "Lego Testament"). If people commonly use your trademark in incorrect ways and you don't defend against it, then when a "real" trademark case comes up, a judge will more than likely ask, "well, why haven't you been defending your mark against all these other infringements?" Doesn't matter how small those infringements are.quote:
But all parodies - even if you are just making fun of them for the sake of entertainment - are allowed as long as a reasonable viewer would not confuse your product with the real company.
Come on, that's not even true of copyright law, much less the more-restrictive trademark law. What is or isn't "fair use" is always up to a judge.quote:
That is why Andy Warhole could do his Brillo boxes, and that is why Saturday Night Live can do fake news stories about the Gap and Guess clothing companies.
No, they could do those things because they didn't give the companies grounds for a successful lawsuit, though the companies always had the right to sue even if they knew they'd lose.quote:
In answer to your question about "Well, why shouldn't companies have "TOTAL CONTROL" over their trademarks?" -Because people should have to right to make fun and make critical commentary and report on companies and their products. If companies and products are identified by logos, then the logos should be able to be used in parody, again, as long as the parody wouldn't confuse a reasonable consumer into thinking it is associated with the original company/product.
Except that those aren't the only considerations. Xerox didn't lose its trademark due to confusion with some other product or because of parodies, they lost it because people starting using "Xerox" as a verb synonymous with "to photocopy," and Xerox failed to file lawsuits protecting their mark. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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marfknox
SFN Die Hard
USA
3739 Posts |
Posted - 02/06/2006 : 01:10:24 [Permalink]
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Dave,
I'll admit, you now have me in deeper waters. I'm to the point where I really don't have any idea what the hell this law would do, since - as you claim - cases are basically up to the opinion of judges, and still would be if this law passes. In fact, I emailed the article to my friend who is a lawyer, and he basically said the same thing. So what is the point of this bill?
I am also a bit confused by your statement: "No, they could do those things because they didn't give the companies grounds for a successful lawsuit, though the companies always had the right to sue even if they knew they'd lose." Why would it be legal for Warhole to make exact replicas of Brillo boxes and present them as sculpture in an art gallery, and sell them and make a ton of money, but it is illegal for you and your coworkers to create parodies of Barbies through an online game? How come no one (anymore) questions the legality of Warhole's Campbell soup cans, but this less famous artist is getting in trouble over a visual parody of the VW Bug? |
"Too much certainty and clarity could lead to cruel intolerance" -Karen Armstrong
Check out my art store: http://www.marfknox.etsy.com
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Dave W.
Info Junkie
USA
26022 Posts |
Posted - 02/06/2006 : 12:22:56 [Permalink]
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quote:
Originally posted by marfknox
I'll admit, you now have me in deeper waters. I'm to the point where I really don't have any idea what the hell this law would do, since - as you claim - cases are basically up to the opinion of judges, and still would be if this law passes. In fact, I emailed the article to my friend who is a lawyer, and he basically said the same thing. So what is the point of this bill?
Re-reading both the article you linked to and the text of the bill itself, the point is to add protection for trademarks against "dilution by tarnishment," a category which didn't exist in the Lanham Act. In other words, if your use of someone else's trademark in commerce harms the trademark-holder's reputation or ability to do business. And the way I read the new section 43(c)(3)(B), it actually legislates the exclusion of parodies and criticism from possible lawsuits, rather than prohibits those reasons as possible defenses. That paragraph expands upon and adds examples to the "non-commercial use of a mark" in the 1946 original, rather than eliminating it.quote:
I am also a bit confused by your statement: "No, they could do those things because they didn't give the companies grounds for a successful lawsuit, though the companies always had the right to sue even if they knew they'd lose." Why would it be legal for Warhole to make exact replicas of Brillo boxes and present them as sculpture in an art gallery, and sell them and make a ton of money, but it is illegal for you and your coworkers to create parodies of Barbies through an online game? How come no one (anymore) questions the legality of Warhole's Campbell soup cans, but this less famous artist is getting in trouble over a visual parody of the VW Bug?
Well, you've got to get away from the legal/illegal dichotomy, since all this trademark law applies only to civil lawsuits. In other words, the trademark law grants a trademark holder the right to sue for injunctions against a trademark infringer, and nothing more. Warhol's soup cans and Brillo boxes weren't legal or illegal in this sense, but instead "actionable" or not, and if Campbell's (or Brillo) didn't take action, then the courts can't say one way or the other.
Trademark law depends upon the trademark owners policing their own trademarks. If they decide to sue, then a judge gets to decide whether an infringement occured or not. If they decide to not sue, then the question of whether or not a particular use was "fair use" will never be answered. Did Brillo ever even try to sue Warhol? |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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BigPapaSmurf
SFN Die Hard
3192 Posts |
Posted - 02/06/2006 : 13:36:45 [Permalink]
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| Im sensing a anti-Lindows writer to this bill. I wouldnt be surprised if this is used against parodies which are deemed harmful to bottomlines. |
"...things I have neither seen nor experienced nor heard tell of from anybody else; things, what is more, that do not in fact exist and could not ever exist at all. So my readers must not believe a word I say." -Lucian on his book True History
"...They accept such things on faith alone, without any evidence. So if a fraudulent and cunning person who knows how to take advantage of a situation comes among them, he can make himself rich in a short time." -Lucian critical of early Christians c.166 AD From his book, De Morte Peregrini |
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Snake
SFN Addict
USA
2511 Posts |
Posted - 02/06/2006 : 17:33:51 [Permalink]
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quote:
Originally posted by marfknox
Snake,
I still don't think you are getting the difference between stealing and critizing. You wrote: "When a brand name has recognition, it should be viewed as the owner intends." Recognition should NOT be always viewed only as the owner intends. Are you against parodies and satire and journalistic criticism of companies through art, articles, cartoons, etc.?
As a faithful Simpsons fan I'd have to say I'm of course not against parodies but I noticed just the other day that they (The Simpsons) don't come right out and use the exact label of a company. That's what makes it a parody.
My one small point was that if one is using an exact copy of a brand name they should get the permission of that company. Maybe that's not what this 'new' law is about but that what was my comment was about. LOL, at least for what I'm thinking now, that's what I meant.
Again I say, if I saw someone using my logo, name symbol...whatever you want to call it, in an obscene way I'd have a complaint if they didn't ask me 1st. |
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marfknox
SFN Die Hard
USA
3739 Posts |
Posted - 02/07/2006 : 20:39:24 [Permalink]
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To the question of whether Warhol was sued by Brillo (or any of the other companies whose product packaging he represented in his art): As far as I can tell trying to look it up, he was not. I know he was sued by the commercial artist who designed the Brillo box (who ironically happened to be an unsucessful abstract painter who was only working at Brillo as a day job) but Warhol won that court battle based on the fact that the other artist had no rights to the image - Brillo did. I can only assume that Dave is right - the companies did not sue because they enjoyed the free advertising.
Also, apparently times have changed. I asked my Business of Art professor this week about this discussion we are having, and he said that even though Warhol got away with it in the 60's, artists today can still be sued and so he recommends simply not risking it. This snippet I found from a 2003 article suggests the same:
"A Great Threat To Modern Culture: "The current artistic culture, which is replete with references, borrowings and parody, has collided with a corporate and legal culture that is bent on protecting intellectual property. If Andy Warhol were working today, he would be facing litigation from Campbell's soup, Church & Dwight (the makers of Brillo pads) and every corporation whose logo he appropriated. 'Virtually all art builds on previous work, either overtly or covertly'." Los Angeles Times (Newsday) 01/08/03
Admittedly, I am still utterly confused by these legal lines, which especially creeps me out because I am an artist about to re-enter the professional art world. But, as my Business of Art teacher says, "You do whatever you can get away with." |
"Too much certainty and clarity could lead to cruel intolerance" -Karen Armstrong
Check out my art store: http://www.marfknox.etsy.com
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