All posts by Rick Cole

About Rick Cole

Rick is a Social Media Strategist and Senior Consultant at Smith. Contact the author directly

Be Transformative!

Heads-up content creators–the world is not open source.

The culture of visual sampling and appropriation suffered a setback today as the U.S. Supreme Court ruled against the Andy Warhol Foundation in a much-watched case involving the limitations of copyrights within the fair use doctrine. Digital visual appropriation has attempted to piggyback on allowances used in music sampling within hip-hop and other genres. This ruling counters that movement by reinforcing copyright law when commercial interests are involved.  

Orange Prince and fair use

At issue was a series of silk screens created by Andy Warhol (who died 1987) in which he used a photograph of Prince taken by Lynn Goldsmith. Goldsmith sued the Andy Warhol Foundation for licensing an image called “Orange Prince” to Conde Naste. Goldsmith was unaware of the Warhol silk screens until they appeared in an issue of Vanity Fair (owned by Conde Naste) in 2016.

The court was unimpressed with the Andy Warhol Foundation’s argument that their licensing of images of the Warhol’s silk screens, though based on Goldsmith’s photos, were permitted under the fair use doctrine because they were sufficiently “transformative.” 

The 7 to 2 decision crossed ideological lines within the court in favor of Goldsmith, finding that when the magazine published a photo of Warhol’s work it lost any transformative value and the digital version “share[s] substantially the same purpose, and the use is of a commercial nature.”

“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original.”

Justice Sonia Sotomayor, writing the majority opinion. 

Transformative use

Had the Andy Warhol Foundation sold the physical silk screens this decision would likely never have happened. (Though, it seem that the court ruled against this use too.) It is the mass distribution and easy replication of protected works that remains squarely in the sights of copyright restrictions.

This decision may inform other important legal questions being generated (pun intended) by artificial intelligence. Do A.I. programs have permission to alter, or sample original copyrighted material without written permission? Print, image and music recording publishers seem united in their stance to protect their works from a.i. infringement.

“Today’s Warhol Foundation decision is a massive victory for songwriters and music publishers. This is an important win that prevents an expansion of the fair use defense based on claims of transformative use. It allows songwriters and music publishers to better protect their works from unauthorized uses, something which will continue to be challenged in unprecedented ways in the AI era.”

David Israel, CEO, National Music Publishing Association

Fair use simplified

Smith ensures our clients don’t bump up against copyright issues by being very careful in our image selection and paying for the images that require us to do so. However, when creating digital content for personal social media, educating, informing, or for a non-profit presentations, fair use offers more latitude for creators to appropriate, sample and use the work of others.

The easiest way to understand the difference is to follow the money. You can’t directly profit from another creator’s work without compensating them. It’s that simple.    

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Leveraging Tax Day

Promote HSAs during tax season for a better return.

Tax Day in the U.S. is anticipated by those receiving refunds; dreaded by those who owe. April 15 is a national touchpoint that creates an opportunity to promote the multiple tax advantages of a health savings account (HSA).

HSAs make sense

When coupled with a High Deductible Health Plan (HDHP), an HSA is a great choice for many participants.* Some of the benefits of an HSA include:

Affordable. HDHPs have lower premiums and higher out-of-pocket costs. HSAs make these plans work.
Flexible. Participants have more control over how they spend their healthcare dollars on a variety of healthcare expenses such as dental, vision, and alternative medicine.
Portable. Participants own their HSA, allowing them to keep their savings when they change jobs or retire.
Valuable. Participants can build equity because an HSA acts as a long-term savings vehicle. (More so if employers contribute to participants’ HSAs.)
Deductible. HSAs allow participants to save pre-tax dollars on healthcare expenses, reducing their taxable income, which results in tax savings.

*Depending on individual circumstances and changes in tax laws, there could be limitations on and disadvantages to contributing to an HSA. Employers should encourage participants to consult a qualified financial advisor about the potential impact of participating.

HSAs make cents (and dollars)

There are more advantages than are commonly understood. Participants can benefit from these three and more:

  1. There is an April 15th loophole that allows participants to retroactively fund their HSA after they know their qualifying expenses from the previous year.
  2. Adult children who ARE covered under a parent’s health plan AND who are NOT claimed as a dependent on a parent’s tax return, can fund their own HSA.
  3. Qualifying expenses can be reimbursed years later. And HSA qualifying expenses are defined more broadly than an insurance company’s ⏤ ranging from aspirin to acupuncture (with a receipt). These HSA reimbursements are not taxed, unlike withdrawals from a 401(k), making HSAs potential rainy-day accounts.

Piggybacking on tax season messages

Tax season creates a timely opportunity to remind participants of the tax advantages that a health saving account benefit offers them.

Below are a few ideas to help get you started.

● Use tax season as a natural segue to a discussion of the tax benefits of an HSA, piggybacking your internal marketing efforts on other media messaging about tax deadlines.
● Remind potential participants that they have until April 15 of the current year to fund HSA dollars that can be used for qualified expenses incurred the previous year.
● Focus on a one or two-week campaign around April 15th for maximum impact, but don’t limit efforts to educate about the benefits of this valuable, but often overlooked, benefit all year long.

Need more ideas or help executing the ideas above? Contact Smith Communication Partners; participant communication is what we do.

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Racin’, Rubbin’ and Writin’

An appreciation of employee communication

“Rubbin’, son, is racin’.” In this line from Days of Thunder, the seasoned NASCAR crew chief is enlightening his rookie racer about the fuzzy line between illegal and legal contact.

Pushing the limits

There are many fields where the communicator’s purpose is to find an advantage, to push the boundaries, or even stretch the truth into gray areas. For example: 

  • Fiction is a product of the imagination.
  • Political communication is at best aspirational, and at worst deceptive
  • Legal arguments explore the boundaries of what’s acceptable
  • News media elevate the sensational
  • Advertising is crafted to attract and tempt consumers 

Though their work often supports aspects of certain gray areas, working within and even establishing boundaries is the work of another type of communicator. This type of communicator is specialized, careful and accurate. For example: 

  • Technical writing requires precision and clarity.
  • Regulatory communication clearly lays out rules and requirements. 
  • Academic writing is for like-minded peers and is often esoteric.

Employee communication is a hybrid discipline and a balancing act. It requires accuracy and precision to make it compliant to organizational and legal regulations. Yet it also must be accessible and compelling to the employee audiences.  

Organizational and legal guardrails are not to be rubbed against. They set the course, so that we can all race, cleanly and without any unwanted drama or pain. Employee communication isn’t about exploiting the gray areas. It’s about clearly defining legal, organizational and relational obligations. Employee communicators know where the guardrails are and make certain that the organization, the processes, and the employees all stay within them. 

Keeping it between the lines 

More Formula 1 than NASCAR, employee communication requires precision and careful execution. Mistakes can be costly. Careless communication can side line important initiatives and diminish the return on expensive investments.

Experience is the key quality of a successful and valuable internal communicator. There are no shortcuts to learning how to balance between compliance obligations and creative expression. It takes time, study, and years of doing the job to be good at it.

Once the parameters of the work are clearly understood, the greatest challenge for employee communicators is creativity—adding interest and making content compelling. 

It’s easy for employees, who are familiar with certain processes and information, to stop paying attention. For example, year-to-year the numbers and other facts might change, but the basic structure of an employee’s benefits package is often the same. That doesn’t make the details less important or less worthy of careful consideration and attention.

Making the familiar feel fresh requires knowing how to move the pieces around in new and inventive ways and finding graphicly evocative ways to appeal to different employee audiences. While the guardrails should keep us from using empty and flashy approaches, they shouldn’t stop us from making creative, elegant and inviting content.

The challenges we face during client engagements can’t be met by everyone. Smith has assembled a highly experienced and creative set of consultants to execute a precise and demanding job. And when we do that job well, we make a difference for employees, their families, and the organizations where they work. 

Employee communication, it’s what we do.

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Heart 2 Heart

Connecting images to love and to health.

What’s Valentine’s Day without roses, candy and, especially, hearts? The symbolism is overwhelming and leaves little room for misinterpretation. If you see a heart during the first two weeks of February you know what to think. Right?

What’s love got to do with it?

Swimming against this rushing romantic river is the American Heart Association who, along with the U.S. government, has designated February as American Heart Month.  When the AHA shows a heart in February they’re being a bit more literal. Carving out visual space for the actual organ this month is a Herculean task.

Maybe the thinking is, “if you can’t beat them, join them.” Or, maybe the heart lobby is being ironic. More likely, American Heart Month has been swallowed up by the marketing frenzy that now surrounds every modern holiday. American Heart Month was first proclaimed 1963. A lot has changed in public relations, marketing and advertising in those 57 years, not the least being a proliferation of heart-related images afforded by ubiquitous media.

The efforts of the American Heart Association are laudable and illustrative. They point to a challenging aspect of communication—the use of images in shifting contexts.

Social Backdrop

There is no universal visual literacy. Unlike written language and mathematics, we don’t learn strict grammatical formulations about images. Romance =♥. The heart shape almost universally stands for love in our culture. The shape of that love, the emotion involved, is not so clear. Hearts can be puzzled, incomplete, committed or caged.

There doesn’t need to be a romantic connotation at all. Do the hearts below express affection, whimsy or health? Or, do they point to reading, nature and cooking?

Designer and architect George Nelson identified “social context” as a necessary ingredient to understanding an image or design:

“In visual reading, like verbal reading, the completeness of the reading relates directly to the quality of the reader’s stored information…it uses a code or language which has to be intelligible to the receiver.”

How to See p. 17

Images rarely communicate on there own. Without formal grammar, images depend on context to inform their meaning. Context is derived from a myriad of sources. Accompanying words, common uses, cultural symbology, literary references, technology, fashion and more all inform how we “read” an image.


Timing is another element that affects context. An image of a pumpkin signals something different around Halloween than it does around Thanksgiving. Just as the image of the heart means romance in the weeks leading up to St. Valentine’s Day.

Choosing the right image infuses our communication with near instantaneous emotion, identification, interest and other connections that are increasingly difficult to achieve with words. If we want maximum impact, we must keep an eye on the ever-shifting social contexts that inform the images we use.

May your heart find love and health this Valentines Day!

Feature photo by Karolina Grabowska

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