Celebrate Public Domain Day!
Copyright law is at best, quite complicated. Educating students about these complexities can be quite challenging. When asked if they can use "something," the answer is almost always, "it depends." Discussions about Creative Commons licensing, fair use, and plagiarism and appropriation abound. With public domain material, it's a pleasure to be able to just say "YES!"On the other hand, the journey of how works become part of the public domain collection is not always simple. Before 1998, in the United States, works 75 years or older graduated into the public domain. In 1998, President Clinton extended that term by 20 years, effectively cancelling Public Domain Day for 20 years.This year we can celebrate the release of music, film, literature, and other works of art from 1926—including Winnie-the-Pooh. Finding work in the public domain can also be a bit complicated. Multiple sources exist. Wikipedia Commons, Europeana, Library of Congress, and many museums are among them. A good place to get started is The Public Domain Review.Enjoy the journey!Source:https://hyperallergic.com/703299/celebrate-public-domain-day-2022/
Eliminating fear and loathing of fair use
Fair use exists to allow scholars, educators, researchers, and more to use copyrighted works without permission or paying royalties.Furthermore, fair use is one of my favorite topics to discuss regarding ethics in graphic design, because its status as a grey area leads to some of the most interesting conversations in the field. Unfortunately this same status has also caused anger and conflict in the design world, legal and otherwise.People crave rules—they want to know definitively if they can or can’t use something. I once gave a presentation on ethics in graphic design which included questions from the audience about whether or not specific artwork could be used. When it was done, I overheard a member of the audience grumbling loudly as they left because I wasn’t able to provide them with a simple yes or no about the use of an image. In this case, and others, the answer is almost always, “it depends...” (Of course, I am not a lawyer and can’t offer legal advice.) Then there is the can of worms that is opened when discussing cases like the Richard Prince/Patrick Cariou copyright case—this never fails to start a firestorm of controversy.The fair use doctrine has developed through a substantial number of court decisions over the years. When evaluating whether or not the use is fair, there are four factors that are considered:
- What is the character of the use?
- What is the nature of the use?
- How much of the work will you use?
- What effect will it have on the market for the original?
As you can imagine, the answers to the questions are almost never black and white. The size of the image reproduced, the amount used, the distribution, and how much it was changed, are just some of the questions that are asked. In fact, lawmakers have said that it’s intentionally a grey area in order to keep an open dialogue while evaluating if an image’s use was fair or not.A copyright owner has the legal right to restrict reproduction of a copyrighted work and to demand royalties when a copyrighted work is used. Penalties for unauthorized copyright can be substantial. With this in mind, it makes sense to have an idea about whether or not your use of copyrighted work is defensible. Subsequently, some find the whole business so unpleasant that they avoid it all together.The president of CAA (College Art Association) and others are concerned that fear of copyright infringement may be stopping people from creating innovative work that adds to our culture. A recent study showed that 1 in 5 Artists, 3 in 10 Museum staff, and 4 in 10 academics state that they avoid issues of fair use when making, researching, and exhibiting art.In “Fair Use at Work in the Visual Arts,” a video that they’ve produced to educate and inform artists, educators, and researchers about the topic, they state that when courts look at fair use cases they look primarily at two things: is the work transformative and is the amount of work is proportionate? If the answer to these two questions is affirmative, the track record shows that the work will most likely be considered fair use and non-infringing.CAA has created a code of best practices to help navigate these murky waters and to encourage scholars and artists to work freely and uninhibited.How about you? Are you feeling more confident about fair use and copyright, or more fearful?Sources:http://www.expertlaw.com/library/intellectual_property/fair_use.htmlhttp://cmsimpact.org/fair-use/best-practices/fair-use-visual-arts#CodeStarthttp://copyright.gov/fair-use/more-info.htmlhttps://www.youtube.com/watch?v=wC-wfVfIXiw
Dog eat dog world?
Robynne Raye and her partner at Modern Dog, Michael Strassburger, have been involved in a copyright infringement lawsuit with Disney, Target, and the Jaya Apparel group for the past several years. Modern Dog filed a lawsuit against the companies when the artwork from the end papers of their 2008 Compendium showed up on T-shirts being sold by Target. Anyone that I've talked to about the case agrees that Modern Dog should win based on the evidence—as long as they can stay the course and raise enough money to stand up to the stonewalling tactics of the big dogs. The recent shenanigans by the defense makes me wonder about the dog eat dog world we live in.In a Print Magazine blog post from last week about the case, Steven Heller quotes an email from Raye and Strassburger, “After misleading us into thinking they were going to settle our case without mediation, the defense filed a surprise motion on May 14th to have our case thrown out. They no longer deny (or admit) that they copied our illustrations, instead the defense is claiming that your illustrations are not entitled to a broad copyright since the dog illustrations lack “expression” and fall into the “natural world” category.”Raye has posted some of the other comments made in court on her Facebook page. Here are a few highlights:
"Favorite quote from yesterday's Motion for Summary Judgment (said be the defense attorney): 'There's very little creativity going on here'."
"I just think this case has to be one of the most absurd in the history of copyright. They deny copying our dogs for months, then out of nowhere claim that our dogs are realistic depictions from the "natural world" so therefore not protected by a broad copyright anyway."
The image below shows the illustrations of dogs in question. The dogs on green background are Modern Dog's. The dogs in center on white are from the Target T-shirt. I've circled a few strikingly similar ones. You'll find more if you look closely.
The defense is trying to claim that the dog illustrations are technical rather than creative—anyone could have done them. Raye and Strassburger dispute this claim. In fact, Raye and Strassburger think the designer used a Wacom tablet to trace the illustrations. A PhD in mathematics from Stanford was among the expert witnesses called. The witness stated that there is less than a 1 in over 2,000,0000 chance that they did not trace the dogs their book.After much time and huge expense, the trial is scheduled for September 2013. I will continue to watch this case with great interest—as well as amazement at how low people can go. I will offer as much support for Modern Dog as I can. I hope you do too.Sources:http://www.printmag.com/imprint/weekend-heller-3/https://www.facebook.com/robynne.raye?fref=ts&ref=br_tfhttp://imprint.printmag.com/buzz-poole/modern-dog-copyright-and-the-burden-of-proof/http://minesf.com/resources/cca/2012/09/10/friends-of-modern-dog/http://99designs.com/designer-blog/2013/04/19/5-famous-copyright-infringement-cases
Moving the lines between copyright and fair use
Last month Richard Prince made history when the court ruling against him for copyright infringement against him was overturned.In 2008 Prince created a series of paintings, "Canal Zone," which incorporated the photographs of Patrick Cariou from his book Yes, Rasta. The work was shown at Gagosian Gallery in New York. In 2009 Cariou filed a copyright infringement case against Prince, Gagosian Gallery, Lawrence Gagosian, and Rizzoli Publications. In March 2011, Judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalog and unsold paintings from the series that use Cariou's photographs. Any collectors who own sold artwork were to be informed it would be illegal for them to publicly display the paintings.One of the key factors in determining fair use is whether or not the work is transformative. During the case Prince testified the the work “didn't really have a message.” Courtroom reports stated that the judge responded by assessing that for fair use to apply, a new work of art must be transformative—that it must “in some way comment on, relate to the historical context of, or critically refer back to the original work.”(1)After the 2009 court ruling Cariou stated, “This lawsuit is about arrogance, laziness and an overwhelming sense of power. It has nothing to do with art,” Cariou told Art in America, “At the end of the day, he took 41 pictures—it's not just one little part. It's almost half of the book. I really don't understand how he thought he could get away with it.”(2)Gagosian and Prince appealed the decision and the courts ruled last month that Batts’s interpretation was incorrect and that “the law does not require that a secondary use comment on the original artist or work, or popular culture,” but only that a reasonable observer find the work to be transformative.(3) In its decision the court wrote that Prince’s work conveyed an entirely different aesthetic and while Cariou’s photos depicted the natural beauty of Rastafarians and their environment, Prince’s work is jarring and provocative.This case is seen as a landmark. If the original ruling were not overturned, it could mean any artist who has copied, altered, or collaged other artists work could be found in violation of copyright. It could have affected artists like Andy Warhol and his images of Campbell Soup cans and Marilyn Monroe. Current and future implications for contemporary art and culture abound. As memes based off of copyright protected images, characters, or snippets from TV shower the internet, questions arise about the legal liabilities that their posters incur.Where do you think the lines fall between copyright infringement and fair use? Should the original ruling remain or were the courts right in overturning the decision? Does contemporary culture call for a change in copyright law and fair use?Notes/Sources:(1) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&(2) http://www.artinamericamagazine.com/news-opinion/news/2011-03-22/richard-prince-canal-zone-cariou-gagosian-lawsuit/(3) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&http://artherworldblog.wordpress.com/2012/06/25/internet-memes-and-copyright/http://www.forbes.com/sites/emmawoollacott/2013/05/03/warner-brothers-sued-for-infringing-cat-meme-copyright/http://petapixel.com/2013/04/26/appeals-court-overturns-previous-ruling-rules-fair-use-in-richard-prince-case/
Do We Need a Copyright & Fair Use Best Practices Document?
While issues about copyright and fair use are not new, our feelings about them may never have been more divisive than they are today. It's also highly unlikely that in today's work environment, graphic designers won't be faced with these issues on a daily basis. Graphic designers looking for art and images they can use are apt to encounter Creative Commons—a nonprofit organization that seeks to offer alternative solutions to traditional copyright. They are likely to see established artists (Shepard Fairey) and designers (Fly Communications, No Labels Logo) find themselves embroiled in legal cases and allegations about copyright violation. They will most certainly see social media sites like Pinterest (who many feel are stretching the boundaries of copyright protection) being embraced by respected and established organizations like Design Observer.In the midst of this turbulent climate, what's a graphic designer to do? How do they navigate these murky waters and stay up-to-date with current trends as well as maintain a level of professionalism? Designer Dawn Mercurio has offered a suggestion, a best practices document for graphic designers.Mercurio's MFA Thesis research includes surveys with over 100 creative professionals. As a result Mercurio states, “Contemporary creative professionals are split on how they side for the need to protect and license work. From data, it appears to be divided among those who work in traditional print environments verses those who work in multimedia and web. It may be that the ubiquity of the internet has created a leveling of ownership, an acceptance for sharing and a practice of mutual appropriation among those who build around it. And now with the ability of instantly viral content (impossible to fathom in the original rendering of the Constitution) it seems that protection has an even more difficult struggle than ever before.”Mercurio asked those surveyed how they would rate their understanding of copyright law and fair use. Most said they were familiar with it. A little over 15% chose “hazy," with the majority falling into the "somewhat knowledgeable" category. When participants were asked about the Shepard Fairey case and if the transformation from the original photo was enough to dismiss attribution, purchase, or permission, the results were almost evenly split. A trend in divisiveness and confusion about the issues was apparent throughout the survey. This is evident in the answer given by print and web designers, the largest segment of creative professionals polled, about how often copyright issues arise. They responded that copyright issues arise only occasionally, when handling the content and art of others is endemic to design fields.Mercurio concludes, “One solution to address these divides is to adopt a policy of Best Practices for Creative Professionals. Other industries such as Online Video, Media Literacy, even Dance have established their own doctrines and have built safer, healthier environments to work in without limiting creativity or message." She argues that, "a doctrine built by lawyers familiar with both copyright law and art along with a diverse group of creative professionals, could rule on the Fairey case along with other common practices such as using unlicensed images even as a ‘comp’, that many creative professionals abuse and should be advised on."What do you think, do you feel there's a need for a Best Practices Document?You can download Dawn Mercurio's findings including case studies and surveys here:https://dl.dropbox.com/u/
Was Shepard Fairey’s use fair?
Last week Shepard Fairey was sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. Some, including prosecutor Daniel Levy, felt Fairey should have served jail time. Levy contends, “A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct.”For those unfamiliar with the case, Fairey was sued by the Associated Press in 2009 for copyright infringement for using a photo by AP photographer Mannie Garcia. Fairey then filed a suit against the AP, contending that his use of the photo fell under the doctrine of fair use. The case got murky when it was discovered that Fairey lied about the original photo that he used as well as destroyed documents that were relevant to the case.Plagiarism Today lists the belief "Fair Use Will Protect Me" as one of the top myths about copyright. They go on to state that most people who claim fair use are misreading the law. Fair use is meant to balance free speech against the rights of the copyright holder. Fair use is an affirmative defense; you would have to prove it after you are sued. Fair use is not meant to protect you from a lawsuit, but rather from having to pay damages after it is over. (1)The definition of fair use is the copying of copyrighted material for a limited and transformative purpose; to comment upon, criticize, or parody. The term transformative is as ambiguous and vague as it seems, and it's done so intentionally. Like free speech, judges and lawmakers want an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism, or parody. (2)According to Stanford University Libraries, when assessing whether or not something falls under fair use, lawmakers use four factors:
1. the transformative factor: purpose and character of your use(have you created new meaning, was value added to the original?)
2. the nature of the copyrighted work(was the original work factual or fictional? typically you have more leeway if it's factual)
3. the amount and substantiality of the portion taken(in general, the less you take, the more likely you will be excused)
4. the effect of the use upon the potential market(does your new work deprive the copyright owner of income or a potential market for the original work?)
In Fairey's case the issue was eventually settled in a civil case without answering the question of whether or not his use of the AP photo constituted fair use under copyright law. The financial terms of their agreement were not disclosed and both parties agreed to share image usage rights for any posters or merchandise produced using the "Hope" image.Fairey may have been sentenced for his criminal activity involved with this case, however the question still remains, would his use of the AP photo have been fair if he hadn't lied and tampered with evidence?Notes:(1) http://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/(2) http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.htmlSources:http://www.latimes.com/entertainment/arts/culture/la-et-cm-shepard-fairey-20120908,0,6021274.storyhttp://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/http://www.huffingtonpost.com/2012/09/06/shepard-fairey-jail_n_1861680.htmlhttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
Ask the Lawyer
Volunteer Lawyers for the Arts (VLA) is a non-profit site that was founded in 1969 to provide legal,educational, and advocacy support to low-income artists and arts organizations. In 2010, VLA launched AskTheLawyer.com to archive and present basic and pertinent legal information to arts and legal professionals.Organized in four sections—Topics, Glossary, Resources, and Contact—the site is controlled and operated from the United States and may not be appropriate or available for use in any particular jurisdiction other than the United States. When accessing the site users are cautioned that while information concerns legal issues, it is not legal advice, nor does it constitute an attorney-client relationship.Topics includes information about copyright and trademark along with contracts and first amendment issues. The Glossary offers definitions of legal terms used. Resources contains links for contracts, copyright, trademarks, for-profit and nonprofit corporations throughout the U.S. The Contact page lists the address and phone numbers for VLA.Source: http://askthelawyer.info/
Is "Tomoko Is Bathed by Her Mother” fair use?
The difference between fair use and matters of integrity is not always crystal clear. Those involved in visual communication are often called upon to decide which takes precedence.One of the most powerful images of the twentieth century is W. Eugene Smith’s photo “Tomoko Is Bathed by Her Mother.” The image shows a child with a congenital disease caused by mercury pollution in Minamata, Japan.Although Tomoko’s parents originally gave permission for Smith to take the photo in 1971, after Tomoko died in 1977 they were upset by the continued use of the photo and asked that the image not be used. In 1998 Smith’s widow, holder of the copyright on the photo, complied with the parents’ wishes and forbid future use of the image. This impacted exhibitions of the “One Hundred Greatest Photographs of the Twentieth Century” and also was seen as a disservice by those who felt Tomoko’s image should be able to be used under “fair use” guidelines as it has helped in the fight against industrial pollution.Do you think the original image should still be in circulation under fair use guidelines or should the wishes of the family take precedence as Aileen Smith decided it should?PLEASE NOTE: Permission to use the image discussed in this case study, “Tomoko Is Bathed by Her Mother,” was respectfully denied. The image can be seen online here. The image below is from the same series and reproduced with permission from Aileen Smith.