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/
Copyright and the American Way
Kate Kretz is an American artist, educator, and activist who has made it her mission to fight white supremacy and authoritarianism since the 2016 election. The MAGA Hat Collection focuses on ripping MAGA hats apart and making objects that function as physical manifestations of their racist truth.One of her most recent projects is the #fixedit American Diversity Flag. Pictured above, the flag aims to correct the all white stars version of the American Flag with stars that represent the melanin scale and the actual skin tones of the American people.Kretz started this project in August 2019 when she ordered an American flag and began ripping out the white machine stitched stars and replacing them with her hand embroidered ones. She published a sketch of her ongoing work on Instagram in February 2020 and filed a U.S. copyright for her concept.In June 2021, the singer Macy Gray wrote an op-ed calling for a new American flag based on melanin skin tones and shared a similar design saying the artist wished to remain anonymous and would not reveal the name. As many copyright infringement cases go, the smaller and less established artist, Kretz, could not afford to pursue the matter legally against the high-power and celebrity status of Macy Gray. Instead, she wrote a lengthy article for Medium, "David, Goliath, and The Futility of Copyright," in which she warns other artists about the limitations of copyright and she created the website.Follow the painstaking creation of “Reparation: Where Our Greatness Lies” on Instagram, and consider supporting this independent artist’s vision of a flag that represents ALL of us, the American Diversity Flag.
To Post or Not to Post?
Artists don't work in a vacuum, we are social creatures, we make work to show it. Fans and critics alike are necessary to the process of making art. These days showing your art almost always involves posting it online through social media. But how can you prevent getting ripped off? While it may take an artist a hundred hours to produce a single piece, it only takes thieves a matter of seconds to profit off of someone else's' work. Just as important as producing the work itself is learning how to protect it. Following are some options to do so:
Circle C
The first step is the simplest: add ©, the year, and your name to anything you create. This is your declaration of copyright and marks the art as yours. The © is important because it tells the viewer the work is protected by copyright. The © can be added digitally or drawn on by hand, the technique is not important, just the mark itself.
Watermark
Some artists choose to watermark their work. This is a visible branding that overlays your images. It is usually transparent and fairly large. Experts in digital imaging can remove it with Photoshop or other image editing software, however, it's usually not that easy to do. You can add watermarks to your images with Photoshop or similar image editing programs, some of which feature batch processing to make it easy and efficient. The downside besides the time it takes to do it is that it also compromises the viewing experience as it visibly alters the image.
Creative Commons
Founded by Harvard Law Professor Larry Lessig, Creative Commons is an organization dedicated to making it easier to share work without the sometimes arduous process of copyright registration and without the same restrictions. Creative Commons offers a wide range of options to allow people to share their work on their terms. All have some level of sharing, the most restrictive being "Attribution-NonCommercial-NoDerivs." Licenses are in effect immediately upon implementation and there is no required fee. Creative Commons is a non-profit organization and donations are gladly accepted.
Copyright Registration
You can register your copyright with the Federal Copyright Office. Online registration fees start at $35 for a single registration. There is a wait time that can be up to 5 months. It's also important to know that while many international laws closely follow copyright laws in the U.S., they do not automatically apply internationally—you'll need to check those if you are selling your work internationally or find that your work has been used elsewhere in the world.
Following Up
You can check on your images to see if they turn up anywhere unauthorized by uploading your image to a reverse image site like TinEye or Google Reverse Image Search. This isn't full proof, but can certainly help you take a cursory look.The answer "to post or not to post" is complicated, and as with most ethical issues, it depends—on your circumstances.Sources:http://www.finearttips.com/2010/07/how-i-stopped-a-copycat-artist-on-facebook/https://www.thoughtco.com/what-is-a-watermark-1701744https://www.copyright.gov/https://creativecommons.org/http://copyrightregistry-online-form.com/
Searching for the great image
When searching for that great image online it’s easy and tempting to simply right click and copy any image you find. There is no warning signal or stop sign that appears with a message asking, “Yes, you can take this image, but should you?”Finding images online, and then what you do with them, poses legal questions as well as ethical ones that touch upon issues of integrity and morality. The ease with which internet surfers can grab images encourages copyright infringement. It doesn’t necessarily take that much more time to search through resources that provide images that aren’t in violation of copyright law.Creative Commons is one place where you can start. A non-profit organization that was founded by Larry Lessig, Creative Commons offers free tools that enable the sharing of images with a variety of options. Users can give permission to use their images with options like “some rights reserved.” Those seeking images can go to Creative Commons Search and find a number of resources that provide images utilizing Creative Commons licenses.If you decide to start where most of us do, Google, go one step further to Google’s Advanced Image Search. Here you’ll find a tool that not only let’s you search by format, language, geography, and more, but also by usage rights.There are a number of sites that offer free stock images. A post by Smashing Magazine lists a directory of sites offering free images for both personal and commercial use. This is in addition to the plethora of stock photography sites that offer a wide range of purchasing and licensing options for both royalty free images as well as for rights managed images.Another option internet surfers can try are images that are in the public domain. MakeUseOf has a list of 6 Free Website For Public Domain Images & Free Stock Photos.The last thing that users should consider is asking for permission. If you find an image that’s copyright protected, you can ask for permission to use it. Depending on how and why you are using it, you just may find the copyright owner is happy to share the image along with a photo credit.
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
Does John Williams have no empathy?
The recent Logo Garden scandal has many graphic designers up in arms. From the Action Alert sent by AIGA to warn graphic designers about possible theft and plagiarism of their logos, to the blog post "Love Thy Logo" on RockPaperInk by Bill Gardner, it is clear many are appalled.When Gardner found more than 200 of his own designs offered on the site, he documented Williams' outrageous and unethical behavior along with examples of the slight modifications of well-known logos like the identity for World Wildlife Fund and Time Warner Cable that are also on the site.Clues concerning how Williams' feels can be gleaned from his recent guest post for the entrepreneurs blog On Startups, "No Capital? No Problem. What You Get For Free Is Priceless." He gives readers a pep talk about starting their own business and the value of organic growth. He never clearly gives them a picture of how using one of his logos fits into this picture, but goes about instilling a spirit of comraderie with them accompanied by the claim that his experience with branding led him to make an easy to use logo maker available to startups and DIYers. As Gardner asserts in his post, these startups and DIYers will most likely have no idea where the work came from or that it is not his to sell.While many may be glad that the slight modifications that Williams made to the logos may actually increase his liability by demonstrating his willful copyright infringement, what bothers some designers most is the question of how he can do this to his colleagues. As Gardner says, "You'll note I avoided going on a tirade about the issues with the $100 internet logo firms. They have foibles that too deserve penance but designers have no forgiveness for theft. Thou shall not steal another designers work."One wonders what led Williams to take this path. Was it lack of integrity, greed, or simply no empathy for his colleagues? A recent article for The Chronicle of Higher Education, 'Why Should We Care?'—What to Do About Declining Student Empathy, discusses educators' concern about a decline in student empathy. The troubling conclusion of a recent study by a team of social psychologists is that American college students have been scoring lower and lower on a standardized empathy test over the past three decades. The article talks about what the reasons for this decline may be as well techniques to improve levels of empathy. Besides the social benefits, research also links empathy in students with better academic outcomes. Educators are concerned because when used with skill, empathy can guide us to balance the needs of ourselves, those around us, and our larger social contexts with judicious care. Taking on another person's thoughts and identifying with their emotions are traits at the core of empathy. Williams disregard for what the implications of his "logo maker" are for his fellow designers makes one think that he has not considered what it would be like to walk in their shoes.What do you think is behind Williams behavior—lack of integrity, greed, or simply no empathy?Sources:http://www.aiga.org/common/newsletter/source/August2011_Action_Alert.htmlhttp://www.rockpaperink.com/content/column.php?id=88http://onstartups.com/tabid/3339/bid/54498/No-Capital-No-Problem-What-You-Get-For-Free-Is-Priceless.aspxhttp://chronicle.com/article/Why-Should-We-Care-What/128420/
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.