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The One Thing Appropriation Artists Don't Want to Talk About: Is legal support for appropriation art about creativity or money? Part 2

by Brian Sherwin on 1/6/2012 12:52:04 PM

This article is by Brian Sherwin, Regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint and Art Fag City. You should submit an article and share your views as a guest author by clicking here.


Why do I suggest that the 'battle' over how 'fair use' is interpreted is NOT about 'creative freedom'? Simple. The issue is an issue due to profit -- and as mentioned earlier, conflicting markets for art. Copyright infringement normally does not become a viable reason for a lawsuit unless profit is involved. In other words, if the copyright offending appropriation artist had exhibited the alleged infringing artwork without prices there would likely not be an issue. Copyright does not necessarily destroy 'creative freedom' depending on how you view it -- it just keeps people from profiting off of the work of others. Point blank -- I feel that some appropriation artists use 'creative freedom' as an attempt to smoke screen the topic of money.

 

I have supported copyright strongly for nearly eight years now -- and have long warned about what may happen if a wide interpretation of the concept of 'fair use' were to become a legal standard. Corporations would benefit from a wide interpretation of 'fair use' just as much as appropriation artists -- which means we would likely see corporations hijacking the career of any artist creating marketable artwork. The artists would not be able to compete -- it is as simple as that. Market-wise ALL artists would suffer from the lack of copyright protection in that scenario.

 

We all know that this 'battle' is not over 'creative freedom' -- it is about money. I challenge famous appropriation artists -- such as Shepard Fairey -- to stop romanticizing it as anything else. The M word is an important part of this ongoing debate -- stop denying it (you certainly don't deny it when you check your bank statements). So many questions go unanswered from the upper levels of the appropriation art community... such as, why is it so difficult for some of these artists to simply reach out and collaborate with the creators of the images they desire to use? I can hear the crickets now.

 

In addition to the above question -- why appropriate an image that you view as inferior? I ask that because at court appropriation artists tend to suggest that the infringed image is "not meaningful",  has "little value" or was not "needed" overall within the context of their artwork. For example, Shepard Fairey suggested that his poster of Obama could stand on its own without the assistance of the image he used. Appropriation artists ranging from Joy Garnett to Richard Prince have made similar claims when faced with allegations of copyright infringement -- suddenly the appropriated image is not so "important" to the overall piece.  De-Appropriation artists have a different take on that. Point blank -- when faced with copyright infringement some appropriation artists downplay the importance of the image they appropriated. Which leads to another question -- if these artists really feel that way why do they appropriate from others in the first place? If you look past the rhetoric it all goes back to the M word -- it is about an unwillingness to collaborate or compensate.

 

I have a few more questions for the upper levels of the appropriation art community -- why have some of you had your legal teams send out cease-and-desist letters when others appropriate from your images? Does a wide interpretation of 'fair use' only apply to you? Does 'creative freedom' -- as you define it -- only apply to your studio practice? There are so many contradictions. Again, it goes back to the M word -- MONEY... and yet some of these same artists wave the banner of 'creative freedom' when a copyright owner challenges their use of a protected image (which often involves making the copyright owner out to be an opportunist... an appropriation artist calling a copyright owner an "opportunist". Interesting). Sadly, creative freedom has been reduced to a mere smoke screen on this 'battlefield'.

 

In closing, I've been called "crazy" -- among other things -- for having such extreme support for copyright. I stand by my views -- it is not 'crazy' to think that artists, ALL artists, should have the ability to protect their art market if needed. Thus, I for one hope that copyright wins the battle when everything is said and done -- ALL artists must be able to effectively protect the market for their art... strong copyright offers said protection. The alternatives are not acceptable in my opinion -- weak copyright would allow any wealthy individual or corporation to hijack art that is found to be marketable. Anything marketable would be fair game if a wide interpretation of 'fair use' becomes a legal standard. It would kill the ability an artist has to support himself or herself with art... and thus kill creative output for the majority of artists. More artists are making money from their art today than ever before -- that momentum will be lost if copyright protection is lost. Even the commercially-minded appropriation artists would suffer if you think about it. Indeed -- it is about the money.

 

Take care, Stay true,

 

Brian Sherwin



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Related Posts:

The One Thing Appropriation Artists Don't Want to Talk About: Is legal support for appropriation art about creativity or money? Part 1

When Copyright Infringers Become Victims... Part 1 - The Corporate Angle

Of Art Movements and Trademarks...

FineArtViews Interview: Blek le Rat (Xavier Prou) -- Originator of Stencil Graffiti Art, Living Legend of the Street Art / Graffiti Art Scene

Copyright Registration: Protecting Yourself as Well as Your Collectors

Copyright Rules the Throne: An Art World Prince Fails to Prove Fair Use

Appropriation meets De-Appropriation in Response to Richard Prince risking the Stability of the Art Market

Appropriation Art Meets De-Appropriation Art -- An Art Movement Born?

Copyright Registration: Some thoughts on registering a series of paintings


Topics: art law | art marketing | Brian Sherwin | copyright | creativity | Think Tank 

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 35 Comments

nik harron
via faso.com
I don't think it's entirely fair to paint this entire issue, with all of it's subtleties, as a simple binary choice between uncompensated "fair use" and commercial exploitation. Every artist builds on the work of other artists. Certain forms of appropriation have legal protection rightfully assigned to them” critique, satire, commentary” all of these are done for profit and yet they are not denigrated for having a commercial objective.

What about fan fiction? Some license holders of creative works feel it is necessary to take legal actions of fans who simply want to extend their enjoyment of a franchise by creating new work that reflects their own particular take on the original artwork. There's no commercial gain for the fan fiction producers” unless you want to take the position that they benefit through an accumulation of "whuffie" or social capital through their activities.

I think that the issue is about control as much as it is about money. It's about an Orwellian desire to limit possible interpretations and secure the canon. Think about Star Wars, it has become a cultural meme” it's a modern myth in many respects. Lucas is certainly free to mess it up by taking it in one direction, but the fans have been given freedom to explore that fictional universe and in the process, generate huge commercial draw for the original creator. Now, if you want to talk about appropriation in this context, Lucas "appropriated" Kurosawa's film-making legacy without adequate compensation. He "appropriated" the conventions of spaghetti westerns for monetary gain.

The problem, as with most human affairs, is that there is a huge grey area separating the territories of fair use, theft, appropriation and inspiration. There are many valid artistic reasons for appropriation besides commercial gain. Some artists have even resorted to outright theft of images to make a point.

Even if an artistic work is appropriated for commercial gain, if it does not financially impact the original creator, I feel it should be allowed within the context of creating new art. Simply selling copies of print that an artist is still actively marketing is theft, but to craft a response that includes that image and market that is fair.

The one point I do agree with is that appropriation artists when they legally challenge those who follow them” that's just hypocritical.

DEL
via faso.com
HEAR HEAR!! Every article on copyright needs to be read. Copyright is the least understood and most abused concept on an artists horizon. Cavalier attitudes on the part of those who abuse it appropriators, artists or otherwise is uncalled for. One does not see this happen in the music industry with out loud objections. The whole of creative communities need to learn and understand copyright. use it correctly and let their work be protected by it.
Brian, Keep writing!

Maria Brophy
via faso.com
Boy, you hit on a HOT BUTTON with this topic! Artists are so passionate about this, some for appropriation, some against.

The thing that's perplexed me to no end is this: If you're going to use someone's art (photograph, etc.) for creative expression, WHY NOT ASK PERMISSION AND THEN SHARE IN THE ATTRIBUTION?

In other words, if you are working from a photographer's photo, why not, in the credits, name them as the photographer?

It's called the Golden Rule - and it's the "appropriate" thing to do.

Regardless of what the law says, my hope is that the artists that are taking others work and appropriating it will realize that they need to work together, respect each other, and share in the collaboration.



Diana Moses Botkin
via faso.com
Well said. However, it is not simply about the money, although that is certainly a vital issue.

Copyright gives only the author/copyright owner of a work the right to reproduce the work, make derivative works, and authorize others to do so.

This right of intellectual property ownership means that the author/copyright owner decides how the work can be used, whether or not there is pay involved.

Barbara Reich
via faso.com
Brian - For 2 years I lived in a very small town. The first year I was there I entered the Guild's art show only to discover that some of the artwork was directly copied from published photographs. It appeared that the better the copy, the more likely the piece was to win an award. I spoke (till I was blue in the face) with the board members about why this was very wrong! They refused to remove paintings or change the award winners even when they knew the work wasn't original. Needless to say, I never entered any more of their shows. I think they thought I was just upsetting the apple cart. I tried every explination I could, but they simply didn't want to hear it! The attitude was, "that's not how we do it here". I can only hope that they will, in time, realize their mistake. Even small town artists need to be professional.
Barb Reich

Connie McLennan
via faso.com
Your views are neither extreme nor crazy. Illustrators have been defending copyrights vociferously for decades--because for most of us, ownership and control of our images and the ability to profit from them is ALL WE HAVE. Other than legitimate fair use (defined by the copyright office here) there is no "middle ground"--no "percentage" or "type" of image usage--that is legally or ethically OK. Whiny-baby "appropriation artists" and others who grew up in the internet age, with images that are easily found and copied, need to grow up accept that appropriation is stealing. Period.

Donna Robillard
via faso.com
This is a good subject, and I wish everyone took the copyright seriously. Often I have been asked to paint a particular picture, but would have to decline because it was the work of someone else. After I explained that, the potential client understood.

Brian Sherwin
via faso.com
Nik -- True, every artist builds from other artists... one generation to the next and back again. I understand the conflict over originality in general. However, I don't think that is reason enough to prevent all artists from being able to protect their market on equal terms just because a very small percentage of artists desire to be able to use anything in sight when desired.

Again, it is not really an issue until money is involved. An appropriation artist -- think Shepard Fairey or Richard Prince -- does not have to place his or her work up for sale. They make that choice -- and take that risk if the copyright owner finds out.

As you made clear there are limitations on appropriation under current law. That said, some of the most vocal appropriation artists clearly want to go beyond the limits (at least for their own studio practice) -- and money, in my opinion, is clearly the motive for that desire. Yet when they are called out about it they scream creative freedom. As I stated -- it is not really an issue of infringement until price tags and sold work/prints are involved.

You mentioned fan fiction. The problem is that some of those creators do try to profit from their re-purposed work, if you will. Think in terms of fan art -- many people will say that it is harmless. I agree IF price tags are not involved. However, it does not take long to discover that many of these fan artists DO attempt to profit from what they do.

Just look at some of the prints offered for sale on sites like DeviantART. True, those prints tend to be blocked by quality control once someone attempts to purchase them -- the point is that they were placed for sale in the first place. Point blank -- there are people who are eager to profit off of others... and if copyright is weakened -- they will.

You can suggest that fan art -- and even forms of appropriation mentioned earlier -- benefit the original creator due to continued exposure. However, some creators simply don't want -- or need -- that extra push. Under current law they have the choice to crack down if they desire -- and it should remain that way.

I interviewed author Anne Bishop last year. She made it very clear that she would prefer that fans should refrain from expanding upon the world she has created in her novels. Now in reality I doubt she would act UNLESS someone attempted to market their take on her 'world'.

One of the basic reasons for copyright is to motivate copyright owners to keep producing knowing that they have some security for what they do. Do you really think Bishop would continue to write lengthy novels knowing that anyone can claim her work in one way or the other? I'm sure she would still write -- but I doubt she would be jumping to make said work available to everyone.

Brian Sherwin
via faso.com
Diana -- Like I suggested... copyright does not block creative freedom in my opinion. Those with a wide interpretation of 'fair use' could simply create their work with a non-market approach -- as in not making prints of said work available for purchase... not exhibiting it for profit, and so on. In that case the most they would fear -- and I base this on what lawyers have told me over the years -- is a cease-and-desist notification.

These artists want to profit -- which is why I say the conflict is about money, NOT creative freedom. There is a difference between 'creative freedom' and 'market freedom', if you will.




Brian Sherwin
via faso.com
Barb -- I've noticed over the years that those who are OK with using photographs without credit or compensation tend to have the 'photography is not art' attitude -- as if that justifies copyright infringement.

I know artists who do what you mentioned -- and they all offer variants of "photography is just photography" when their practice is challenged. Yet if someone 'borrows' from their work you can bet that all Hell is going to break loose. That is another thing that bothers me about appropriation in general -- it always seems to be wrapped up in hypocrisy.

The problem with the attitude mentioned above is that photographs, art or not depending on the viewer, are protected equally under copyright. Thus, if we turn a blind-eye to copyright in regard to photography -- we turn a blind-eye to copyright in general.

Keep in mind that there are millions upon millions of images that can legitimately be used under current law. There is really no reason to infringe other than being too lazy to discover an image that can be used without question, too cheap to compensate the copyright owner, or too arrogant to collaborate with the copyright owner.

Theresa Bayer
via faso.com
Brian, what in your opinion is the difference in terms of appropriation between "fan art" and art based on literature? For example, would art based on Lewis Carroll's "Alice's Adventures in Wonderland" be considered as an appropriation?

Brian Sherwin
via faso.com
I'll offer another example from the music world concerning copyright in general. I interviewed Geoff Tate of Queensryche a few years ago. He is a strong advocate for copyright. Those in the band had to work HARD to get to where they are today and enjoy the things they have enjoyed from what they have earned.

It was a blessing when they got to the point that they were able to focus all their attention on the band due to the money coming in from royalties and so on. If you have ever been in a band you know how rough it can be. Queensryche was lucky enough to 'make it'.

He put it this way -- the money he has earned goes toward providing for his family. Copyright allows him to provide for his family. Royalties for him could be described as a pension plan -- he paid his dues -- invested himself -- and gets something back.

He mentioned that with the Internet and illegal downloading he has been taking in about 90 percent less since around 2000. All because people don't respect copyright -- and thus don't appreciate the musician when you get to the heart of it.

It is not uncommon to read about successful musicians from the 80s and 90s who are now broke. Trust me -- it is not always due to an extravagant lifestyle gone wrong or because of drug addiction... or any other stereotype you can think of. Many of those musicians simply don't get back what they put in because so many people refused to comply with current law.

I realize a lot of people view pirating music as being a rebellious act against the corporation behind the entertainment... a jab at the music industry or whatever. That said, musicians get hit in the crossfire -- it hurts the artist behind the music.


Brian Sherwin
via faso.com
Theresa -- appropriation in itself is not a bad thing. I'm thinking of appropriation artists who knowingly work with copyrighted material without offering credit or compensation. Think Shepard Fairey and Richard Prince (Prince just lost a lawsuit after being unable to prove 'fair use' -- look up Patrick Cariou).

Using Lewis Carroll's "Alice's Adventures in Wonderland" to build from -- say in a painting -- would be appropriation... and as far as I know it would be acceptable under current law. Not to mention that the story and characters have iconic status... so parody under 'fair use' would be a given in my opinion.

For example, you could paint your own version of Alice and the other characters based on descriptions in the story. However, you probably would not want to paint a version that is 'line-for-line' the same as Disney's depiction of the characters -- or use a photograph of Johnny Depp as the Hatter if you're painting the Hatter.



Brian Sherwin
via faso.com
Theresa -- I should have been more clear in my response to Nik. 'Fan art' involving characters from novels, comics and so on that are no longer protected is fair game in my opinion. If the source is no longer protected by copyright it is 'open season'. Fair enough.

That said, creating a painting of Harry Potter using a movie still as the source for the painting is probably not a good idea from a legal standpoint.

HOWEVER -- if you did so with parody in mind... say your painting of Harry Potter involves Harry flying his broom upside down in a marijuana field while chasing the White Rabbit from Alice in Wonderland... well... you would probably have a strong case for 'fair use' if the creator of Harry Potter took action.

You can get away with a lot of things under current law -- especially if the image, character, what have you, is considered 'iconic'.

The masses know Harry Potter -- when they see Harry Potter high as a kite while flying upside down on his broom chasing a white rabbit in a field of marijuana they are not going to confuse it with the work of Joanne Rowling. They know it is a parody.

An attorney once told me that if you choose to appropriate you should appropriate from iconic sources. People should be able to say, "the artist is making a parody of *insert icon of choice*." when they view the work. The connection should be clear -- that is, if you want to have a strong case for 'fair use' if the copyright owner challenges you in court.

The problem is that many appropriation artists appropriate from copyrighted sources that are not well known... not iconic. The connection is not clear to the viewing public.

Clint Watson
via faso.com
Here's some tough love. I see lots and lots of artists who *say* they support "strong copyright." They become very indignant at anything they consider infringement, basically considering any use at all (even legit fair use) as "theft." (an aside: copyright infringement is a *completely* different thing from theft, otherwise we wouldn't have copyright laws and you would just prosecute someone under theft laws, but that's a different post.)

Fine I understand artists desire for strong copyright protection. I have no problems with strong copyrights.

But, you must understand something: Copyright is a state-given right (like a right to drive) not a God-given right (like life and liberty). As a state-given right, it comes with *responsibilities* and can be taken or weakened if you, the copyright owner, do not do your responsibilities. So while many artists talk big about copyright, they shirk their responsibilities and do not even do the ONE THING that makes every copyright strong: REGISTER YOUR COPYRIGHT UPON CREATION OF THE WORK.

AGAIN: REGISTER YOUR COPYRIGHTS UPON CREATION OF THE WORK.

Why do artists expect others to respect their copyrights when they don't even respect those rights enough themselves to register them?

Now, from the article, "Copyright infringement normally does not become a viable reason for a lawsuit unless profit is involved. In other words, if the copyright offending appropriation artist had exhibited the alleged infringing artwork without prices there would likely not be an issue."

I am not a lawyer, but there is, I think a big exception to that statement.

If you REGISTER your copyright there are STATUTORY DAMAGES in the law. In the case of a REGISTERED copyright you DO Have the basis of a lawsuit.....even if profit is NOT involved. You are allowed to waive your right to actual damages and receive statutory damages instead.

BUT, You must register our copyrights prior to infringement for the statutory damages to apply. If you wait till after the infringement occurs to register, too bad, no statutory damages for you. (I think there may be an exception if you are able to register almost *immediately* after the infringement, which is virtually impossible).

So do yourself a favor and register your copyrights, please.

And, please, ask a real lawyer if you need actual help in a copyright case, I'm giving you my interpretation from reading copyright.gov, not legal counsel.

Connie McLennan
via faso.com
Clint, of course you are right about the legal distinction between infringement and theft. "Stealing" is used to illustrate that when an individual or organization uses an artist's work for profit without compensating the artist, that entity has taken the artist's ability to profit from that or similar potential usage. Taking something of value without permission or compensation is ANALOGOUS TO stealing. If someone takes my driver's license, impersonates me, and uses it to drive his/her own car for awhile, "theft" may not be the most pertinent legal crime, but ethically he/she has "stolen" my ability to use my license for my own benefit for some period of time.

Most of those who work commercially learn about the the wisdom and necessity of registering images--especially those appearing online--in order to be eligible for statutory damages. But I think many, if not most, "fine artists" are still largely in the dark about this or assume it is not necessary. The other thing many may not realize is that a group of unpublished works (such as "Paintings done in 2010") can be registered as a collection for one low fee.

Even though I know better, I assumed that as a beginning, unknown "fine artist", I did not need to bother registering my paintings. Imagine my surprise when I recently found one of them lifted from my blog and used in its entirety on the online fund-raising page of a New York organization, where it had been in place for YEARS and even printed in a brochure! When I demanded it be removed, the clueless spokeswoman was offended! She said that since they are a non-profit (whose NP status actually is PENDING) it was probably "fair use", accused me of being "heavy-handed" and thought I should be "flattered" to have my (uncredited) work used for such a "worthy" (though far from universally accepted) cause. Common misunderstandings, but WRONG on all counts. What I should have been was PAID, or, at the very least, ASKED and credited. But since I had not registered the image and could not quantify or prove how much had been generated from its use, I had no easily pursue-able legal option.

Clint Watson
via faso.com
Connie,

But it's not really analogous. If I break into your house and steal an actual painting. Now I have it and you don't. That's theft.


If I make a copy of an image from your blog, now we both have it. You aren't denied use of it for your blog because I took it. I haven't even affected your ability to sell that image to anyone. It's really not theft.

That's why copyright infringement is a completely different law and, as such, actually carries more severe penalties than theft in most cases.

But I do understand why people say it, I just think it's misleading.

The bottom line is a registered copyright gives you protection and most artists don't do it.

Connie McLennan
via faso.com
Clint,

At the risk of quibbling, because I know you thoroughly understand the issue ...if someone uses my art in a manner that legally should be compensated or uses it to generate a profit, some of which legally should be mine--but isn't--seems pretty analogous to stealing that specific compensation or profit from me. Sure it's a whole different set of laws and terminology; but from a financial and ethical standpoint, isn't the whole point of copyright to preserve not only an artist's right to control the use of his images, but also his ability to profit from them solely and at his own discretion? Usurping any part of that right potentially takes something tangible from the artist.

Brian Sherwin
via faso.com
Clint -- One problem is that law firms will rarely take on a copyright infringement case unless a lot of money is involved... as in the alleged infringer made HUGE bucks off of the alleged infringement. It is a gamble for the lawyers because, as you know, 'fair use' is such a grey area -- and lawsuits of this nature are a major investment in time.

It is also very expensive to secure a lawyer for cases like this (apparently it is also extremely difficult to receive help from free legal services that are art-focused unless the alleged infringement involves big money) -- not exactly worth it if the alleged infringer earned little from the alleged infringement.

If the alleged copyright infringer only made a few hundred dollars or nothing at all chances are no lawyer will take it on (at least that is what I've been told over the years). However -- that may change soon as the Copyright Office is currently exploring the possibility of setting up copyright small claims -- which will make it more affordable to pursue for minor issues.

Until that happens... copyright infringement that does not involve big bucks will likely keep going unchecked.

You were dead on in suggesting that artists should register their copyright. :)



Brian Sherwin
via faso.com
Blah... forgot to mention -- currently it can be difficult (based on the opinions of lawyers I've spoken with over the years -- keep in mind that I know others who have a different take on it) to find legal help even if the artwork was registered prior to the alleged infringement... unless the alleged infringement resulted in HUGE profit.

Again, the Copyright Office is currently exploring how to handle copyright small claims... it will be interesting to see how that comes into play.

Clint Watson
via faso.com
Brian - well, in any case, the case is a lot stronger if the copyright is registered.

Connie - I think copyright infringement is much more analogous to plagiarism than it is to theft (especially in the context of this type of article). However, even plagiarism is not a perfect analogy - just closer.

Connie - also, you stated - "isn't the whole point of copyright to preserve not only an artist's right to control the use of his images, but also his ability to profit from them solely and at his own discretion?"

Actually that is not the whole point of copyright at all, it is only half of the point of copyright. Here is the copyright clause from the US constitution:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Copyright exists *primarily* to encourage development of art and science for the good of society as a whole and eventually for the public domain. The idea is that the government wanted to have ever-increasing public knowledge of useful art and scientific discoveries SO THAT EVERYBODY COULD BENEFIT FROM THEM.

In exchange, the government provides a limited monopoly ("limited times to authors and inventors") to the artist to make a profit for a limit amount of time (originally 14 years with an optional 14 year extension). After the limited time things entered the public domain. In recent times the length of time has been continually made longer and longer - mostly due to lobbying by Disney to keep mickey mouse out of public domain.

I don't know what the right length of time is exactly but the purpose of copyright is to BALANCE the needs of both sides - the general public and the artist who created the work.

If copyright still worked as it was supposed to, perhaps these attribution artists would have a much larger group of legitimate public-domain works to build upon and would probably focus less on on infringing current works that are still protected by copyright.

BTW - originally copyright protection was ONLY granted if the artist registered, I believe that was changed in the 70s.

Brian Sherwin
via faso.com
I'll add that you have to register copyright before you can file a copyright infringement lawsuit -- so you might as well register BEFORE any potential infringement happens. Like Clint mentioned -- it is really an issue of responsibility.

I see so many artists complain about the expense of registering. It really does not cost much to register a series of work -- or even individual works depending on what your output is. I know people who spend more on coffee in a year. LOL

Clint -- Copyright also exists to motivate creators to keep on creating. Being able to make a living doing what you do with little fear of someone with more resources 'claiming' your hard work is a good form of motivation. If it were an anything goes situation I doubt that people would jump to introduce the public to their new work -- especially in this day and age.

Brian Sherwin
via faso.com
Clint -- I'll add that I do think the time frame needs to be limited some after death. I understand that protection after death is designed to help support family of the deceased creator. That said, the current year-mark does seem a tad excessive when you consider that the copyright owner's spouse -- and children --, for example, will most likely be dead before it runs out (depending on when the copyright owner died).

Clint Watson
via faso.com
Brian,

I think the original idea was that, for the vast majority of works, 14 years was plenty of time to profit. If I write a song, chances are I'm not ever going to make much from it, I'm not Geoff Tate :-) So why not let the public domain have it? The original law had 14 year extension for cases where the author was still profiting.

I think a limited time would be OK, with an optional extension that could be filed to go through the death (or death some number of years).

I saw a very interesting proposal somewhere that proposed having some sort of recurring registration (lets say annual just to simplify the example) and that after the initial term the registration amount would go up a bit each year. This would allow mega stars to protect their royalties until their death(aka Geoff Tate), while letting us weekend warriors relinquish lots of great art into the public domain.

It's a complicated issue and I sure wouldn't want the be the one drafting the laws on this stuff.

nik harron
via faso.com
Securing your copyright can be done for almost nothing. A trick in the advertising industry we use is to make a copy (oh the irony) and send it to yourself via registered mail. When you receive the mail, don't open it, file it.

If it's ever challenged, a sealed, and documented mail is pretty much incontrovertible proof. Having said that, criminal copyright aside, remember that all copyright legislation really gives you is the right to launch a civil lawsuit. If you simply can't afford to do that, copyright does not protect you.

Connie McLennan
via faso.com
Nik,

Mailing something to yourself, otherwise known as the Poor Man's Copyright, is a long-standing myth. No case in the history of the US has been aided by PMC. Read more here: http://www.plagiarismtoday.com/2006/08/25/the-myth-of-poor-mans-copyright/

It is also false that copyright is only useful if you can afford litigation. Attorneys who specialize in this area will sometimes take cases on contingency. Also, when infringement is blatant, individuals or companies will often settle when confronted and exposed. In the past couple of years, one illustrator I know has made almost as much money pursuing infringements as she has illustrating. Her comments are here: http://dulemba.blogspot.com/2011/11/calvin-hobbes-and-copyright.html

The number of ways people can and will use others' art is amazing. People I know have found their work not only appropriated and incorporated into "new" pieces, but used unaltered on t-shirts and other types of Etsy products, used by corporations, and even claimed and included in other artists' online portfolios!

Clint Watson
via faso.com
Connie - agreed. I think often a cease and desist order from an attorney is enough. Especially to stop naive infringers. It doesn't always have to be drawn out litigation.

A lot of people don't even know they're doing something wrong, so many times simply demanding they stop works.

Clint Watson
via faso.com
Here's an example of why some people feel current copyright law goes a bit too far. MLK's "I have a dream" speech is under copyright. THat's right, I guess if you did a painting with his likeness and the words "I have a dream" you could legally get a cease and desist letter from EMI Publishing or the King Estate.

I suspect Dr King, wouldn't have minded if the "I have a dream speech" was in the public domain in 2012....44 years after he gave it.

Details:
http://motherboard.vice.com/2012/1/16/copyright-king-why-the-i-have-a-dream-speech-still-isn-t-free

nik harron
via faso.com
I beg to differ. IANAL but while I recognize that there are no special provisions within copyright law that uphold "Poor Mans' Copyright" as equivalent to Registering, as you mentioned these cases are often settled before they get to court. Poor Man's Copyright is one powerful tool in this case to persuade an infringer to settle. An advertising agency that I worked at for many years used this approach on the advice of our copyright lawyer.

Also, the contingency approach for lawyers may be valid in the US, but in many jurisdictions (I am from Canada where not all provinces allow such arrangements) it is often the case that a lawyer can only base part of their renumeration on the contingency but must also charge hourly fees for it to be legal.

As with all other aspect of copyright, as it currently stands, the situation is not cut-and-dried.

Cheers.

Clint Watson
via faso.com
Nik - I think the "poor man's copyright" would hold up fine in court as evidence that you are the original creator. The only issue would be (in the US) that you would be giving up statutory damages by not registering and would have to go after actual damages. However, that's a valid strategy for lots of creative work. For example, I'm not going to register copyrights on every blog post I write, but if someone scrapes them and publishes a book and makes a bunch of money, I'll still be able to sue for damages. (at which point, I'll have to register the copyrights).



Brian Sherwin
via faso.com
Connie -- you said, "It is also false that copyright is only useful if you can afford litigation."

Really? Then why is the US Copyright Office currently asking for feedback about the struggles artists have had finding legal help and affording it? (The deadline for feedback is 5pm today just so you know.)

See, http://www.copyright.gov/docs/smallclaims/


Brian Sherwin
via faso.com
It can be extremely difficult -- at this time -- to find free legal help regarding copyright. I'm aware of organizations that provide help -- but again, they normally only help when huge profit has been made... and there is a good chance that the defense of 'fair use' will fail.

A website last year allegedly infringed on the images of over 300 artists (though I recently read that the number jumped to 800). Some had registered works. As far as I know none of them were able to find a lawyer willing to take on the case. If copyright small claims had been in place they would have likely been able to do something about it.

Terry Krysak
via faso.com
Well Done Brian!!!!!
I strongly agree with everything that you have said, copyright is a very important issue that far too many artists either ignore, or push aside as not important.

The only thing I might add is that copyright laws differ from country to country around the world. Plus the "fair use" concept can be a legal minefield at the best of times.

jo allebach
via faso.com
The in and outs of all this copyright stuff is cofusing, but I am beginning to get the picture. Thanks for all the information.










 

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