Fascinating story about the consequences of sharing your art in the Internet age

[mwb1100]

Here's a twist...

You're standing around somewhere when someone nearby snaps a picture of some of their friends and you're in the background doing something. You do not own the copyright in the image... Now suppose the composition has some sort of unique quality like being funny or whatever, and you play a significant role in that. It goes viral or is used commercially.

Is that a problem?

-Renegade (March 21, 2011, 01:05 AM)

Well, here's a small discussion about how someone's photo from Flickr was used in a Virgin Mobile ad campaign, and the photographer and the person in the photo weren't too happy about it:

  - http://www.flickr.co...os/sesh00/515961023/

[rxantos]

What is his art? A picture of his face?

If so, then every soldier found on a WW2 picture should have the right for royalties since copyright has not expired.

I will never understand the reasoning of I made a picture of something once, thereof I should be payed for it the rest of my life. Will you pay a doctor the rest of your life when he saved your life? The doctor did a lot more than this guy. And should every surgeon that makes a bypass surgery pay a royalty to the one that invented the procedure? After all its creation, isn't it.

Yes, is illegal, yes (under the eyes of the law). Has it being stolen, NO (as the original user can still use it). It has being pirated and transformed, not stolen. That makes a case to go to court and let the court decide. However, it does not makes a case of getting public pity in hopes of milking the situation.

Is it a mater of principle. Maybe, if  you agree that however invents something (including medical procedures) have the right to keep receiving royalties from it for the rest of their lives and then more. BTW, if that is the case, be sure to use ONLY IBM pc, as they where the ones who invented the personal computer. Otherwise you got your principles screwed.

[40hz]

There's a big difference between commercial use in ads, shirts etc. and non commercial reuse for learning, sharing, sampling etc.

And the greater good is NOT criminalising the latter in order to prevent the former. Not matter how good a story you trot out.

I have had my images reused, my copy copied word for word to be used on a competitors brochure etc. but I will never consider that in order to protect me for this, people should be given the right to take children to court for "plagiarizing" Harry Potter on a home video, or make it ok to put limitations on my device that prevent totally legitimate use in order to protect from hypothetical non legitimate use.

-iphigenie (March 21, 2011, 11:08 AM)

I find myself in complete agreement despite having also had my own creative work borrowed either word for word (or note for note) on more than a few occasions.  

After all we can also never forget that everything we create, write, code is hugely inspired from things we have seen, read etc. that has someone else's copyright. We are all sharers, remixers and plagiarists - learn-by-by-copying-and-doing is how we are wired.

For example the image in question is hugely reminiscent of art that others were doing before this guy did it - he inspired himself and copied the style, and it is very similar to many others - it doesnt make it right to pinch it, not when it would take the shirtmaker 10 minutes to do a good enough image to use... On the other hand most of the other "offenses" he mentions are people inspired by the t shirts to do a graffiti... and articles about the story.

+1!

One problem I've seen in music and graphic design is the desire of some people to take one photo, draw one picture, or compose one song that will allow them to get rich and retire thanks to. It's a variation on the old "brass ring" or "get rich quick" game where the goal is to get lucky and hit the jackpot rather than pursue one's art form as a career. This has much in common with the people who start companies solely with the intent of being quickly bought out rather than running an ongoing business.


My sister is a career artist. Her feeling is that the only people who are desperate to wring every possible penny out of everything they do are the ones who are afraid they're going to run out of talent or ideas. The ones who basically believe they will only generate one or two good pieces of work in their entire career. And once those are gone, they're done.

She's had her designs copied, her art used without attribution or permission, and things she's created claimed by others. There have been a (very)  few times when she's pursued legal remedies. But most times she doesn't bother. Her attitude is that she has plenty more art where that came from. So she's not going to waste her productive time agonizing over who is borrowing her stuff. But that's because she went into art to do art. And to make a living from it if possible. She did not go into art with the intent of getting rich and famous, even if she didn't rule out the possibility it might happen.

As she put it: "I'm an artist. This is what I do. I'd do it for free if that's what it took. I'd probably even pay to do it if I had to. Because it's not just the work. It's who I am."

I asked her if it bugged her when somebody used something of hers without her permission. She sort of shrugged and said it didn't really matter since "there's really nothing 'new' and it's all been done before." She said you've got: three primary colors; a dot, a line, a circle, a square, and a triangle; light and darkness; perspective and texture. Once you get beyond those, it's mostly playing with different combinations and interpretations.

I had her watch the video. She said she could sympathize up to a point, but she hoped he realizes that sort of thing happens all the time in the art world.

Then she hauled out an art book and showed me a half dozen similar looking pieces of art from the 60s and 70s.

Like she said - nothing new, and it's all been done before.

 

[wraith808]

@iphigenie, rxantos, 40hz

But the issue isn't with fair use.  If someone else used it in their campaign, product, etc., and it didn't have any intrinsic use, why not go snap it for themselves?  If you like the pose- re-pose it and take the picture.  If it's *just a day's work*, then why not do it yourself?  I think the fact that they *didn't* places intrinsic value on the work.  And if you are going to make money, then you should be willing to pay for the privilege.  This says nothing about fair use if you aren't making money- and in fact, he says he has no problems with that and is quite happy to see it used in that manner.  

It appears that TANSTAAFL applies to anyone- unless you are a large enough company to make suing you non-worthwhile, or your target is so small that you can be sure that they won't do anything.

And the fact that it is already been done is IMO just buying into the system and making easier to do the same in the future...

[jgpaiva]

mwb1100: I think you have just brought a very interesting addition to this conversation!
From what I understand from her flickr page, that girl isn't even a photographer, her intent sure was not to share her work with the world.

What if your "cool" facebook profile picture got used in a publicity campaign all over the world? There are no rules against it, right? (Now that I think about it, the facebook profile picture doesn't even have a copyright notice anywhere).

ps: sorry for going slightly offtopic, but I find this also very interesting

[wraith808]

mwb1100: I think you have just brought a very interesting addition to this conversation!
From what I understand from her flickr page, that girl isn't even a photographer, her intent sure was not to share her work with the world.

What if your "cool" facebook profile picture got used in a publicity campaign all over the world? There are no rules against it, right? (Now that I think about it, the facebook profile picture doesn't even have a copyright notice anywhere).

ps: sorry for going slightly offtopic, but I find this also very interesting

-jgpaiva (March 21, 2011, 02:29 PM)

I think a big part of this issue is not being aware of what the licenses mean... and also the flow of rights, since the photographer released it as CC... so then shouldn't the photographer be liable for any issues arising from the model since that was where the break in the link was?

[app103]

mwb1100: I think you have just brought a very interesting addition to this conversation!
From what I understand from her flickr page, that girl isn't even a photographer, her intent sure was not to share her work with the world.

What if your "cool" facebook profile picture got used in a publicity campaign all over the world? There are no rules against it, right? (Now that I think about it, the facebook profile picture doesn't even have a copyright notice anywhere).

ps: sorry for going slightly offtopic, but I find this also very interesting

-jgpaiva (March 21, 2011, 02:29 PM)

Anyone that comes along and just snatches your profile pic and uses it without permission would be violating your rights.

But...

If you read the facebook agreement that you clicked "OK" on when you signed up, which has been changed a million times since, and by your continuing to use the service you are agreeing to the changes, Facebook itself has a certain amount of rights to the images you upload...the agreement essentially gives them the right to do whatever they want with them. What if they want to start a stock photo site with them and sell them for commercial use? There is nothing in the agreement that would forbid them from doing so. They would be within their rights...and you already gave them permission to do it.

   1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

[40hz]

And the fact that it is already been done is IMO just buying into the system and making easier to do the same in the future...

-wraith808 (March 21, 2011, 02:29 PM)

I think the point I was trying to make is that so much of what gets claimed as somebody's "personal" creative work is quite often exceedingly similar, if not exactly the same, as somebody else's.

It's not a question of playing into anything. It's more a question of deciding where "creativity" actually occurs and what's the limit of what we're going to call uniquely creative.

And no, I don't have the answer to that problem either.  

Please note too that the whole concept of "licensing" a creative work is a relatively new phenomenon. Prior to the mid-70's, virtually all creative work was done on a work-for-hire basis where the buyer bought exclusive and perpetual rights to the artistic work.

It's only recently that attorneys and artists (mostly acting on their attorney's advice) have attempted to extend patent and copyright laws in order to have art be seen more as a service than a product.

And the public, rightly or wrongly, is largely refusing to go along with it. People want to buy art or music - not license it. They don't want to have to bring the artist on board as some sort of landlord or perpetual business partner.

So much as it would personally benefit me (as a composer and musician) to be able to hang a taxi meter on my music and get a payment every time it gets listened to by somebody, I'm not holding my breath it's ever going to happen. The people don't want it. And I really can't blame them - even though I'll lose out because of it.

Going to be interesting to see how this all plays out in the end.

One thing I do know however. Art & music are not necessities. If the creators of such works make the cost of acquisition too expensive - or the terms of use too onerous - people will just stop buying. And once that happens (or more to the point: once that goose that lays the golden eggs finally starves to death) the artists will either have the choice of doing something else with their lives - or accepting the buyer's terms.

Just my 2¢.  

[cranioscopical]

How about your face appearing in an ad for a Herpes medication, in a way that would imply you have Herpes?

How would this make you feel?

-app103 (March 20, 2011, 10:47 PM)

Sore!

[wraith808]

One thing I do know however. Art & music are not necessities. If the creators of such works make the cost of acquisition too expensive - or the terms of use too onerous - people will just stop buying. And once that happens (or more to the point: once that goose that lays the golden eggs finally starves to death) the artists will either have the choice of doing something else with their lives - or accepting the buyer's terms.

-40hz (March 21, 2011, 04:25 PM)

Though not necessities in the normal definition of the term, to many of the industries that ride on the back of art and music, they are necessities.  And if they can make money in perpetuity off of the sale of that work, then why shouldn't those that they choose not to hire, but instead contract with for their services?

[40hz]

And if they can make money in perpetuity off of the sale of that work

-wraith808 (March 21, 2011, 05:01 PM)

Pretty big if. Right now it looks like the so-called 'pirates' are winning.

Besides, it's not the artists who are benefiting all that much from any of this. As a musician, the only change I can see is who is going to rip me off this time around. It used to be the recording industry. Now it looks like it's the fans.

Either way, in my end of the pool, it's business as usual. The creators still only get a pittance, if that.

The real change is that the distributor's percentage of the take is now what's being threatened.  

But as long as people are willing to pay to hear a band play live (and I'm still able to do it) I can have some hope of making an income from music.

However, I think those golden days of getting popular enough to become a millionaire, and then retiring to your mansion and private studio to become a multi-millionaire purely from the sale of your recordings, is soon to be a thing of the past.

"Those were the days my friends..."  



.

[ak_]

rxantos> It's funny you use the "inventor" analogy because it actually works exactly the same. An inventor creates a machine and then every person (or hospital) who wants to use it has to pay and yes, the inventor received money when his invention is sold. And there isn't one unique machine, so when an inventor sells his machine, he can still use the one he has if he wants to. It's the same with pictures : one guy creates a picture and if someone wants to use it (for an article, a book cover, a poster etc), he has to pay to appropriate amount. If people keep on using the picture over and over for the rest of the artist's life then he receives money his entire life, but it's rarely the case.

The part about what you think is art or not is irrelevant, and so is the discussion about inspiration, in my opinion.

[40hz]

The part about what you think is art or not is irrelevant,

-ak_ (March 21, 2011, 06:17 PM)

Actually, what we may think is 'art' is very relevant. Especially when you're looking to register a copyright.

The copyright office will not grant a copyright unless you can demonstrate there's sufficient creative effort and input for your submission to be accepted by the examiner as a true creative work. If they think what you submitted is either too simple or obvious, they won't grant your registration request. So it comes down to subjective judgment even though there are fairly clear guidelines the examiners are supposed to follow.

 

[J-Mac]

The "Copyright Office"? As soon as you publish any work publicly, in any format that the public has access to, it is automatically copyrighted. No registration is required unless you want to sue someone for copyright infringement. Otherwise you don’t need to do anything. Here's some quotes from the US Copyright Office's FAQ:

What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

[40hz]

The "Copyright Office"? As soon as you publish any work publicly, in any format that the public has access to, it is automatically copyrighted. No registration is required unless you want to sue someone for copyright infringement. Otherwise you don’t need to do anything.

-J-Mac (March 21, 2011, 10:13 PM)

Yup, I'm aware of that.  

It's one of those pieces of advice that is legally correct but still not very smart. Put it right up there with the advisability of making a "citizen's arrest"  - or walking down a city street while holding a loaded firearm in plain sight. Both acts are technically legal in most places too.

So while it's true you don't need to register a copyright to be technically protected by it, you do need to register in order to obtain statutory remedies. That pretty much means if you want to assert your legal rights in any meaningful way, you'll need to register. If that's not something you care about, then from my perspective, the entire issue of copyright shouldn't matter to you either.

Unfortunately, it's not just a case of whether or not you think you may ever sue somebody else. Lawsuits are double-edged swords. In this litigious world you're equally likely to be sued. So you may find yourself wishing you had registered should somebody decide to go after you claiming that your work is infringing on their copyright. In a showdown between two parties in an infringement case, the person who first registered is given the benefit of the doubt for having claim to the work.

Not having a registration may also create problems when you go to license or sell your work. Some clients will ask to see a copy of your registration in order to verify that what you're selling them is, in fact, yours to sell. Movie producers, national advertising campaigns, many book publishers (and anybody else who routinely gets sued) will often ask for this.

However, it isn't necessary to register each individual piece of work in most cases. You are allowed to group similar things (music, stories, art, etc.) into collections and copyright those, thereby gaining the same statutory protections you'd get by registering each individual piece.

Registering a copyright is inexpensive and very easy to do. In the USA, it can usually be done completely online.

It's a cheap form of insurance. If you think you may ever need it, don't wait until you actually do.  

[Renegade]

Didn't the traditional way to prove copyright used to be to send it to yourself in a registered letter that could be read into evidence in a court?

[40hz]

Didn't the traditional way to prove copyright used to be to send it to yourself in a registered letter that could be read into evidence in a court?

-Renegade (March 22, 2011, 03:33 AM)

Yes. It was called the "poor man's copyright."

Unfortunately, it seldom held up in court. Largely because a registered letter sent to yourself is far too easy to tamper with for it to be automatically accepted as untainted evidence.

I don't know how it works elsewhere. But in the US, most courts won't recognize it as proof of anything. If you're going to go that route, it would be far more effective to provide your attorney with a copy of your work for filing, and get a receipt from him/her as to the date it was received. But that will cost you far more than obtaining a registration would.

 

[app103]

Didn't the traditional way to prove copyright used to be to send it to yourself in a registered letter that could be read into evidence in a court?

-Renegade (March 22, 2011, 03:33 AM)

Yes. It was called the "poor man's copyright."

Unfortunately, it seldom held up in court. Largely because a registered letter sent to yourself is far too easy to tamper with for it to be automatically accepted as untainted evidence.

I don't know how it works elsewhere. But in the US, most courts won't recognize it as proof of anything. If you're going to go that route, it would be far more effective to provide your attorney with a copy of your work for filing, and get a receipt from him/her as to the date it was received. But that will cost you far more than obtaining a registration would.

 

-40hz (March 22, 2011, 03:43 AM)

It can be used in some rare cases as a valid proof of date of conception for an idea, provided every page in the letter was notarized prior to mailing, and the envelope remains unopened before presenting it to the court.

It is never used to prove copyright. Only can be used to establish a date when the date itself is in dispute between 2 parties that are placing a claim on something and no other means of establishing date can be found.

Example: you come up with an idea for a product and draw up a detailed diagram and description. You take it to be notarized and then mail it to yourself by registered mail and do not open the envelope after receiving it. You then consult with someone about this idea and they steal it, producing exactly what you described to them, and claim it as their own. Neither of you have a patent on the product. You decide t take them to court. It's your word against theirs and no means exists to help the court to determine what actually happened. They may accept your registered letter's postmark and notary stamps to establish a date, and unless the other party can prove they had an earlier date than you, you may win the case....maybe.

But like I said, it is rarely ever used or accepted, mostly because of non-disclosure and non-compete agreements are usually used before telling someone else you idea, which is dated and signed by both parties (actually much more credible than a notarized description sent to yourself by registered mail).

[J-Mac]

Regarding protecting yourself from copyright claims, 40hz makes a good point. Reminds me however of some cases involving friends of mine. Magic sleights and effects are considered "ideas" and thus are not protected by copyright as intellectual property, though within the magic community such property is very much recognized and is critical. Yet some magicians have found themselves the target of idiots who try to come after them for copyright infringement anyway; most are just ignorant of the law. Yet while legal action will not be successful against them, the "stink" that comes within the magic community of having "stolen" someone else's work can be even more devastating. So their only real protection of that is to keep fastidious records of exactly when and where they published and/or first performed the effect. Proof of the date of publication/initial performance is often the only defense against claims of having "stolen" it from someone else.

All outside the actual copyright laws but at times even more pressing and devastating, believe it or not!

Jim

[crabby3]

Ignoring the idea of copyright and not being compensated by people that are making money off his work for a minute, there is another issue that exists here...that's HIS face...not a doodle, a paint splotch, a pic of a flower or a dog...his face.

How would you feel if one of the photos of yourself or your family, that you uploaded somewhere to share with friends and family, suddenly ended up everywhere...printed on t-shirts, skateboards, book covers, magazines, etc. and you have no control over the context in which it is used? How about if someone was using your face on a dating site profile, claiming it is a pic of themselves? How about using it in some sort of context you would object to on moral grounds? If you are pro-choice, a photo of your baby being used in anti-abortion propaganda? How about your face appearing in an ad for a Herpes medication, in a way that would imply you have Herpes?

How would this make you feel?

-app103 (March 20, 2011, 10:47 PM)

This is my avatar on Twitter: 

Just kidding ..    I don't tweet.