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The Stop Online Piracy Act (SOPA) would 'kill' online art communities and art blogs

by Brian Sherwin on 1/18/2012 10:08:20 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 Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Conservative Punk, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog, COMPANY and Art Fag City. Disclaimer: This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.. You should submit an article and share your views as a guest author by clicking here.


If you were online today (Wednesday, January 18th, 2012) you likely noticed that several leading websites protested against the Stop Online Piracy Act (SOPA). Sites ranging from Wikipedia (FineArtViews interviewed Jimmy Wales and others from the Wikimedia Foundation last year concerning what Wikipedia offers to the art community) to Reddit joined together in protest in what was described as "Internet Blackout Day" -- the idea being that site visitors would get a taste of what is to come if SOPA is passed. I have to agree that SOPA is dangerous based on what I've read so far. If passed it would 'kill' online art communities and art blogs -- the conversation about art that we love today would be gone... along with the wider conversation in general.

 

Circles of the online art community joined in the protest as well by informing people about SOPA -- notably, art critic Paddy Johnson of Art Fag City and Hrag Vartanian of Hyperallergic. I have no doubt that others from within the online art community will stand with them in opposing SOPA. I may not always agree with Johnson and Vartanian regarding copyright -- but as Johnson pointed out, "Online piracy is a problem we can address without turning the Internet into a police state.".

 

If you have followed my writing on FineArtViews you know that I'm a strong supporter of copyright -- I want ALL artists to be able to protect the market for their art when needed. However, I can't support a bill that would destroy the Internet as we know it. SOPA, if made law, would throw the Information Age into the darks ages, if you will. If passed I'm certain that a lot of innocent people would be caught in the copyright infringement crossfire -- SOPA would fuel an age of digital inquisition. Online art communities and art blogs would be an easy target.

 

The Stop Online Piracy Act (SOPA) would kill online art communities because it would target website founders as well as site members. Point blank -- SOPA would make the Digital Millennium Copyright Act (DMCA) -- and thus, the Online Copyright Infringement Liability Limitation ACT -- obsolete. SOPA would allow online art community owners to be sued for copyright infringement that they have no control over -- they would be at the mercy of whatever their members upload. This scenario may sound like a good idea to some copyright supporters within the art community -- but the end result, as mentioned earlier, would be that the 'conversation' about art that we know and love today would be gone.

 

If the bill becomes law a website could be blocked / shut down -- with little to no due process -- based on allegations of copyright infringement. You would likely be hard-pressed to find online art communities (or art blogs that cover art news for that matter) due to the way the bill is written at this time. Point blank -- art websites that allow user-generated content would likely 'close shop' because it would be nearly impossible for them to effectively 'police' what is uploaded to the site. Due to the risk of legal action I predict that the majority of online art communities will no longer exist if the Stop Online Piracy Act (SOPA) becomes law -- those stubborn enough to remain 'open' would be at the mercy of user-generated content.

 

Art blogs and other sources of art news would likely have difficulty operating under SOPA as well due to the reasons mentioned above. In addition to that, SOPA could be exploited if made law. For example, say an artist does not like my review of her artwork and I happened to have used an image in the review -- she could use SOPA to 'get even'. The angry artist could argue that my use of the image is copyright infringement -- which means that my blog (or the blog I'm writing for) would be at risk of being blocked / shut down. Keep in mind that your average art blogger does not have the same protection as a journalist. Point blank -- you might as well say "goodbye" to independent art writers if SOPA is passed -- and even the big art mags (or is it rags?) would be at risk online.

 

Again, if SOPA passes -- based on my understanding of the bill at this time -- you can say "goodbye" to independent art writers who are more apt to write about an artist who is outside of the mainstream compared to traditional sources of art writing. To be frank, it simply would not be worth the risk of pissing someone off (which happens often if you happen to be a critical writer) and being challenged legally because someone is exploiting SOPA to 'get even' for a bad review. That concern is not that extreme if you look at the details of the bill.

 

I'll be honest -- I'd be nervous introducing my readers to an artist if SOPA ends up being made law in its current form... because the artist may decide to abuse SOPA at a later time. In addition to that, what if the artist I'm writing about infringed on another artist that I'm not aware of? For example, if I interview Artist A -- and place examples of his work at the top of the post -- I will be at the mercy of Artist B -- if SOPA is law -- when she discovers that Artist A infringed upon her copyright. I would potentially be hit by the legal crossfire of their dispute.

 

In closing, based on what I know of SOPA so far I must stress that it would most likely harm the online art community -- at least in the way it is written now. The online 'conversation' about art would be rather limited due to the stranglehold over content and the potential for abuse of the law. I don't want to see that conversation silenced. There are other ways to handle the problem of copyright infringement in general. I'll offer some more thoughts on SOPA soon...

 

Take care, Stay true,

 

Brian Sherwin



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Topics: art law | artist websites | Brian Sherwin | copyright | FineArtViews | Think Tank 

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 19 Comments

John D Moulton
via faso.com
Copyright law does need serious attention. It must be made easier for all artists to stop misuse and abuse of their work even where 'big money' is not involved. But 'fair use' should not fall foul of that law.

There is a HUGE difference between ”˜showing' art works and ”˜publishing' art works without consent.

It would appear that unauthorised promotion without the profit motive is acceptable to most copyright owners as it can be seen to increase exposure and sales to the artist's benefit. It is unauthorised profit from the artist's works that offends and is what copyright is surely there to protect.

On the other hand, there is of course dilution of sales caused by individuals having access to works of sufficient quality to 'satisfy need'. This criterion has been brought to the fore big time by Internet access.

Not that long ago the odd person having access to and the means to make a quality copy of a work was so small as to be both insignificant and hard to trace. Today, that has changed dramatically with high resolution images scanned and posted to the internet, downloaded and and printed on printers which in many cases are very sophisticated indeed - at very little outlay. Take distribution of such images even at the lowest end with a cheap mount and a cheap acetate wrap and good money can be earned at car-boots and market stalls to mention but two - and let alone eBay!

This has led to a need to ascertain whether an image shown on the Internet for free and down-loadable, is in fact an infringement of copyright or a promotional tool to the benefit of the copyright owner.

My understanding is that an image large enough to indicate what an image portrays, but too small to satisfy the average viewers needs, would not infringe copyright and be deemed a promotional aid - provided credit is given to the artist.

Having said that, there are those who guard there copyright very jealously indeed. I remember in the early 1970's, the highly successful UK furniture manufacturer, Parker Knoll, quite innocently included an artwork on the wall of a room-set within their brochure. Even though they had purchased the work to include in the picture, they were challenged by the owner of the art work who demanded that they either paid for the right to show the work within their brochure or immediately withdraw the brochure from distribution. Maybe the artist believed that Parker Knoll sought to enhance the desirability of their products by showing that discerning purchasers of this artists work would perhaps want to purchase Parker Knoll furniture too (known as sale by association) - or perhaps the artist just saw an opportunity to make a quick buck at PK's expense! Either way it proves both the degree by which copyright can be fought and enforced - PK paid up without taking the matter to court - they are after all a very honest and well-respected company. This shows too, of course, that the legitimate purchase of an artwork in no way constitutes ”˜ownership' of copyright to any degree whatsoever.

So, for SOPA and PIPA regulation to be both meaningful and inexpensively effective there's going to need to be some serious thought applied.

Brian Sherwin
via faso.com
There does need to be a commonsense approach to all of this. Some people are stepping way out of line in my opinion. For example, Steve Lehman of the Artist Rights Movement (ARM) recently removed me from the ARM group on Facebook because I have concerns about the implications of SOPA if made law in its current form.

I shared some of the thoughts I've expressed in this article with him and other members of the group (a few agreed with me -- but Lehman removed their comments as well as mine). Instead of talking about it Lehman resorts to professional/personal attacks and 'blocks' any opposition to his view on SOPA. We -- the art community -- need to be talking about what SOPA could mean for artists... NOT censoring people when they have concerns about it.

Apparently Lehman views art writers, such as myself, as 'thieves' if the writer writes about an artist and includes an image in the post. The irony being that Lehman shares articles on Facebook all the time -- and I doubt he has permission to use the image that is posted along with the article link in most cases. (Note: He does have the option not to include the image... but does it anyway. How is that for a dose of hypocrisy?)

Sharing news -- about an artist or otherwise -- should not be 'attacked' as being 'copyright infringement'. I support copyright... but I also support an open exchange of information. The solution for copyright issues should not involve 'silencing' the 'conversation' about art today online.

In Lehman's mind (based on the implications of his statements) I should have to pay an artist if I decide to review a show, write about it, and include images to support why I'm reviewing the exhibit in the first place OR that I should have to ask permission from an artist before posting an article that is critical about the artists work.

Extremes like that would 'kill' independent art writing... only the big art magazines would survive -- with difficulty. In that sense, the only artists who would benefit from SOPA press-wise would be those who are already championed by big media.


ZanBarrage
via faso.com
Brian I am not sure your argument is effective. You are speaking in very narrow terms about very narrow issue. If you chose to review an artist negatively, should you ask him/her for permission to use his/her art image in your article? The answer is yes for either negative or positive review.

Your idea that the sky is falling if SOPA passes because there will no longer be art discussions or blogs, is ironic on this forum where the best art articles are written with no images used!

It is time to respect artists and their work.

Brian Sherwin
via faso.com
ZanBarrage -- So would you suggest that if a writer quotes another individual he or she should obtain permission before doing so? For example, say I'm writing about a politician and decide to include a quote from his or her book -- should I obtain permission before doing so? Should I pay a fee for each word quoted? That is absurd.

The following is from the copyright office website: "Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research."

Note: criticism, comment... that is what art writers do.

I see nothing wrong with an art writer using an image if he or she is discussing an artist as long as he or she offers proper credit -- as in, it is clear that the image belongs to the artist that is being written about. I don't think writers should have to ask permission or pay to use the image for critical writing.

SOPA -- as I understand it -- would allow, to be frank, a pissed off artist to bypass concepts of 'fair use' altogether in order to 'block' that information from the public. The bill in its current form could potentially be exploited to censor people if made law.

ZanBarrage
via faso.com
I still don't see the reason for the outrage. If the purpose of showing the art is to illustrate your points, a simple URL link to the artist's site will suffice. If the purpose is to make your blog or article more attractive by being colourful and have "art" in it, then yes you should ask permission to use the art. That does not mean you have to pay. Most people who ask me for permission to use something from my blog get an ok if it is non-commercial.

Hypothetically, (or not if you are) as an art critic, are you making a living from your articles? If so, why would you begrudge the artist the same? Do you syndicate your work? would you be OK with someone takes your article, reproduces it in totality and then adds a note at the end as a comment in their blog? Would that be understood as fair use? Why would you need to take someone's art and reproduce it on your site/publication without permission but would not allow someone to do the same to your article?

This will all blow over. At most people will stop shouting "FAIR USE" "FAIR USE" while snatching property, and will start using the old "please" and "thank you".

ZanBarrage
via faso.com
What you are missing in your argument is that when you decide to post the image of a painting without permission, it is not like quoting a passage from a politician's book. It is like quoting the WHOLE book. You are not clipping a brush-stroke or a square-inch from the painting, you are posting the whole thing.

Does your article suffer for lack of portraying the artwork? If you would be honest about it, you will see that you are benefiting from someone else's work for graphic content to enhance yours.

Brian Sherwin
via faso.com
ZanBarrage -- you said, "I still don't see the reason for the outrage. If the purpose of showing the art is to illustrate your points, a simple URL link to the artist's site will suffice."

But you don't have to do it that way according to the copyright office. If the article is a review of an art exhibit -- specifically a critical piece about select artwork in the exhibit -- a writer can use images. Again... criticism, comment.

(By the way, when I write about an artist -- image or not -- I tend to include a link to the artists website.)

The point is that SOPA -- at least from what I've read -- would bypass a lot of what we have already established in regard to copyright. The concept of 'fair use' would be out the window.

You said, "If the purpose is to make your blog or article more attractive by being colourful and have "art" in it, then yes you should ask permission to use the art. That does not mean you have to pay. Most people who ask me for permission to use something from my blog get an ok if it is non-commercial. "

I can't think of any art writers who would throw random 'pretty' images in an article just so it would be more visually appealing. I would have issue as well if, for example, a writer is addressing a topic focused on the struggle of art schools... but ends up using random images of art that have nothing to do with the topic.

Again -- in this scenario I'm talking about a writer who has written criticism about an artist and a specific work of art by the artist... and uses an image (the image that is being criticized) by said artist.

You asked, "Hypothetically, (or not if you are) as an art critic, are you making a living from your articles?"

Yes. I do make a living from writing.


You asked, "If so, why would you begrudge the artist the same?"

Again -- go see what the copyright office says about it... regarding criticism, comment, education... and so on. I could turn that coin and ask, "If an artist re-posts the interview he or she had with me (happens all the time)... should he or she pay me?". That is just absurd. As long as I receive proper credit -- I'm good.

You asked, "Do you syndicate your work? would you be OK with someone takes your article, reproduces it in totality and then adds a note at the end as a comment in their blog? Would that be understood as fair use?"

Happens all the time. There is a RedBubble member who often re-posts my articles. She offers proper credit -- so I see nothing wrong with it. Now if I published a book and someone posted it online word-for-word I'd probably have issue with it. I'd have issue because it would be a direct assault on my market. Posting an image of a painting in the context of an article about said painting does not harm the market of the artist -- especially if the image resolution is useless for printing and so on.

You said, "Why would you need to take someone's art and reproduce it on your site/publication without permission but would not allow someone to do the same to your article?"

Again, read what the copyright office currently says about this in regard to criticism, comment and so on. Now if you think the copyright office should change its position -- by all means, contact them with your concerns. True, if I wrote about your art and included an image without your permission you could file a lawsuit against me -- but I'm fairly certain that I could prove 'fair use' in court. Now if SOPA were law... you could probably throw a cog in my writing machine.

You said, "This will all blow over. At most people will stop shouting "FAIR USE" "FAIR USE" while snatching property, and will start using the old "please" and "thank you"."

So you don't want 'fair use' to exist? If, for example, college students are quoting text in their term papers... you think they should ask permission or pay for said use? Should teachers have to ask permission or pay whenever they explore written work that is still protected by copyright? If you write to a friend about a recent news article that you found interesting, including quotes and the position of the author -- should you ask the author of the article for permission -- or pay the author -- before sending the email?




ZanBarrage
via faso.com
Brian,

I don't mean to turn this into an argument here. Not fair of me. This is your article. But please don't mistake the FULL use of an image as equal to a quote or partial use of a text.

Brian Sherwin
via faso.com
ZanBarrage -- You said, "What you are missing in your argument is that when you decide to post the image of a painting without permission, it is not like quoting a passage from a politician's book."

The Copyright Office has a different take on your opinion. Again, if the image is used in an article that is critical about the artist or the specific work of art -- it is acceptable under the concept of 'fair use'. If SOPA were law you probably would be able to try and have my blog blocked -- all because you don't like the review or whatever. If you want to kill the 'conversation' about your art... be my guest.

You said, "Does your article suffer for lack of portraying the artwork?"

If the art writer is writing about a specific work of art... and an image is not included... key points of the criticism may be lost.

You said, "If you would be honest about it, you will see that you are benefiting from someone else's work for graphic content to enhance yours."

The artist benefits from being written about. Any press is good press. ;p Speaking of honesty -- be honest... do you have a problem with art writers, critics and so on -- something that goes beyond this little debate over image use? Just curious.

I ask because we are not talking about random people nabbing random images to use randomly. I'd stand with you against that. We are talking about individuals who are offering criticism -- or social commentary -- about a specific artist or artwork. That is a big difference. Do you not 'see' that difference?



Brian Sherwin
via faso.com
ZanBarrage -- I like debate... and appreciate your thoughts.

You said, "But please don't mistake the FULL use of an image as equal to a quote or partial use of a text."

Again, the US Copyright Office has a different take on this.

Section 107 contains a list of situations that permit the reproduction of a particular work -- be it image or text. It may be considered fair if it is for "criticism, comment, news reporting, teaching, scholarship, and research.".

Again, you could challenge if the writer is working under the concept of 'fair use' or not -- but with current law you would stand almost no chance of nailing an art critic for copyright infringement just because he or she included an image of a painting in an article criticizing said painting.

SOPA, if made law, would offer you a 'work-around' in the sense that you could attempt to have the site where the article is published blocked. Due process would be non-existent based on what I've read concerning the bill. That is why I'm concerned about it. SOPA could be abused easily by individuals who want to 'silence' opinions.





Pati Springmeyer
via faso.com
I wrote a probably much too long post on SOPA/PIPA, what is DNS blocking, why SOPA in general is so dangerous, with background resources and some video clips for those who want to know more. The whole FASO / Canvoo community should be all over this!

http://www.original-oilpaintings.com/2012/01/stop-sopa-if-you-love-your-online-art.html

Thanks Brian.



Clint Watson
via faso.com
A painting is normally shown online by a fairly low-res JPG image. If we consider an oil painting (say 24" x 30"). Take a digital photo of that painting and post it online. Let's say roughly 1,000 x 800 pixels ( a pretty big image online). That's 800,000 total pixels of information. Now let's say we wanted to do a really nice print of the painting. Printing generally needs at least 300dpi for commercial quality (like magazine quality - even higher for high-end prints). If we wanted to print the painting at full size (24" x 30") WE would need a 7,200 x 9,000 pixel image or 6,480,000 (almost 6.5 million pixels). That's a whole lot more than 800,000 pixels.

Even at 6.5 million pixels, would any artist claim that a magazine quality image of their oil painting had the same emotional bandwidth, the same quality, the same impact as that original painting? Of course not. I used to own an art gallery. We spent hours perfecting our 6.5 million pixel images and I would say they contained 10 percent or less of the impact when compared to the original paintings.

Why do I bring all this up?

Someone on this thread said the following: "please don't mistake the FULL use of an image as equal to a quote or partial use of a text."

I would argue that a JPG image of a painting is just that - a partial use of a painting. It's not nearly the same thing as the full painting. It gives you an IDEA and an OVERVIEW of what the real thing looks like....just like an abstract of an essay gives you an overview of what is contained in the full essay.

But you're missing the nuance, the heart, the soul of the real thing.

I have to agree with Brian on this. If someone writes a review of a work of art and the artist publicly posted an image of that work - the image needs to be included with the review - WITH a link and proper attribution. It will make the review better, it will give the artist more audience and will help the artist's Google link graph as well.

There's only one way I think an artist can be consistent on this issue: If the artist is willing to consider ANY public use of their images a violation and and blocks any public use whatsoever.

One example of ANY public use: Google image search. If you consider any use of your images a violation of your copyright, that includes Google, Bing and any other image search engine. In fact, Google is often worse than a reviewer. Google takes you images, shows them with your competitors images and serves (often spammy) ads against those images.

"But Google sends me traffic!" you say.

So does the reviewer - and the reviewer's site is probably more art focused than Google.

Just some food for thought.

Oh yeah, here's another thought: Say a reviewer writes the review and then simply HOTLINKS to the image on the artist's website. Now what's the argument? The reviewer technically never took the image and it is being served directly to the browser from the artist's website (just as it would if the user visited the artist's site directly). How can that even be a violation on the reviewer's part (it can't)?*


---------------------------------
* Us internet geeks consider hotlinking unethical because it uses a site's bandwidth without that site's permission. It's actually considered MORE ethical to take the image, post it to your on website and serve it that way (with a link back to the original site). Which is why google image search "steals" all your images instead of "stealing" your bandwidth.

Clint Watson
via faso.com
Also, the following link is the clearest I've seen about why SOPA was a ridiculous bill. Stopping illegal downloading is not a bad idea* - but the way SOPA went about it was about the dumbest thing I've seen:

http://www.codinghorror.com/blog/2012/01/defeating-sopa-and-pipa-isnt-enough.html

*although there will be a constant tension between stopping illegal downloading and preserving internet freedoms - the exact right balance is going to be very very hard to find.

John D Moulton
via faso.com
Very nicely put Clint.

I was trying to find a way to express the fact that what 'appears' to be a full image on the internet is mostly NOT the whole image at all - just a low-grade representation of it.

I remember someone else comment that copying an image being like copying the whole text of a book and putting up on the Internet for all to see - no it's not - the images I use on my site are usually about 600px x 450px at 100dpi if someone wants to 'steal' that and print it off they are very welcome - mostly I have a copyright notice on them - quite small but readable these days, so that these little print-outs become no more than a small advert for my work no matter where they end up - and yes, I'm aware the copyright notice can be removed in PhotoShop and the like, if the 'thief' is knowledgeable, but, you know what? For the few cases that this will be the case vs. the expose the rest brings my way - the 'cheats' are very welcome to their spoils! I could of course make my on-line images 300dpi with one third of this px size - they would then look the same size on screen but only be a couple of inches in size when printed off - but where's the fun in that - and I'd lose all that 'free' advertising!

It really is all just give and take and fare use in the end. Make on-line images large enough to create desire but (generally speaking) too small to satisfy need. Then no matter if they are your own images or images by others that you just want to share and promote, everybody wins and nobody get a free lunch.

The one's to really look out for are those who buy (or acquire) your art or your book, scan the images and then sell them on mass behind your back - and it's THAT kind of REAL theft that these regulations should be aimed at.

oscarwelch
via faso.com
One example of ANY public use: Google image search. If you consider any use of your images a violation of your copyright, that includes Google, Bing and any other image search engine. In fact, Google is often worse than a reviewer. Google takes you images, shows them with your competitors images and serves (often spammy) ads against those images.

Zan Barrage
via faso.com
Oscar seriously man? Are you saying you want to prevent google search from showing your artwork? This is a perfect case of going too far. With this we will go back to the village and the rotary phone. I am all for google showcasing my artwork. As long as they hyperlink the image back to my site I am loving them!

Clint Watson
via faso.com
Zan,

I think "oscarwelch" is a spammer, that is just a tiny snippet of my comment from further up the thread. I agree with you we love google indexing our images. My point was that many artist have a double-standard. They cry foul when public sites index their images and link back to them and say "stop stealing my images". But they're totally fine with it when google does it. You can't have it both ways. My argument is - you should basically always be fine with it as long as the attribution and linking is done properly and the site is legit.

oscarwelch
via faso.com
I ask because we are not talking about random people nabbing random images to use randomly. I'd stand with you against that. We are talking about individuals who are offering criticism -- or social commentary -- about a specific artist or artwork. That is a big difference. Do you not 'see' that difference?
http://www.skymase.com/search-engine-optimization-seo_16.html

Clint Watson
via faso.com
What did I tell you about "oscarwelch" the spammer?

A kind of pathetic one too. If blog comment spam is your "SEO" tactic, Oscar, no thanks. Um, Google hates it, it doesn't work and all of these links are NOFOLLOWED anyway as a good SEO would have noted.

But if anyone on this thread wants bad SEO, here's the link to "oscarwelch's" SEO service in case you missed it: http://www.skymase.com/search-engine-optimization-seo_16.html










 

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