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Mr. Shems Goes to Washington (well, New York, actually)

Posted by Advocacy Liaison on August 14, 2015

[To better understand what the First Sale Doctrine currently covers and how it has been interpreted in recent court cases, first read Lisa’s explanation in our Tools & Resources section.]


Subcommittee on Courts, Intellectual Property and the Internet
Daniel Patrick Moynihan United States Courthouse, New York, NY
by Ed Shems, former Boston Chapter President. Edited by Deborah Kantor.

The following article was originally published in Guild News, Fall 2014. Ed Shems, a Guild member, was asked to testify on behalf of illustrators on proposed changes to the First Sale Doctrine. The House Judiciary Committee is continuing hearings on revamping US Copyright Law, and recently issued invitations to individuals who have previously testified before the Committee. In light of that, we decided to republish Ed’s article describing his experience. Lisa Shaftel, Advocacy Chair, wrote a companion piece on First Sale Doctrine which you can read in our Tools and Resources.

“This isn’t scary!” wrote Lisa Shaftel in an e-mail to me at lunchtime on May 15, 2014. I was in the middle of two crushing deadlines that had me feeling a little bit overwhelmed. I wasn’t sure I was ready to read on.

Lisa, as the Advocacy liaison for the Graphic Artists Guild, handles issues such as copyright, licensing, business practices, and legal and legislative issues. In her e-mail, Lisa (along with Patricia McKiernan, the Guild’s Executive Director) asked me whether I might be interested in representing the Guild in a hearing having to do with the First Sale Doctrine… well, then I got lost.

OK, it wasn’t THAT complicated, but at first reading I thought the First Sale Doctrine had nothing to do with me and how I run my freelance illustration and graphic design business. I told her so in my response. Exactly three minutes after I replied to Lisa, I received an e-mail from the publisher of deadline number two that they were halting production and I should stop drawing. Suddenly I had some free time to hear Lisa out.

[To better understand what the First Sale Doctrine currently covers and how it has been interpreted in recent court cases, first read Lisa’s explanation.]

The House Subcommittee on Courts, Intellectual Property and the Internet had been holding hearings since January 2014, reviewing the current copyright law to determine if the different sections of the current law needed revising and/or updating. At issue for the hearing Lisa wanted me to testify at was extending the First Sale Doctrine to include copies of copyrighted works in digital format (separate from an authorized copy on storage media). Currently, the Doctrine allows a person who owns an authorized hard copy or phonorecord of a copyrighted work to sell or otherwise dispose of the work without the authority of the copyright owner. The right to distribute, however, ends once the owner has sold or disposed of that particular copy. The hearing was to examine the worst case scenarios if the First Sale Doctrine were extended to include digital works.

I was completely unaware about different hearings taking place, much less knowing how to formulate my thoughts about this particular topic, but when Lisa parenthetically mentioned that the subcommittee frequently changes their schedule and that nothing is set in stone (in other words, the hearing might not happen), that was the sort of thing I could agree to. I mean, what are the chances that I would end up in front of members of the House of Representatives? Lisa also pulled the ego card and referred to me as professional, smart, and articulate. At that point, I would have loaned her any sum of money if she had asked.

Ed Shems and Lisa Shaftel

Guild member Ed Shems and Advocacy Liaison Lisa Shaftel on the courtroom steps.

The first step for me was to get vetted by Sandra Aistars, Executive Director of the Copyright Alliance, who had suggested someone from the Graphic Artists Guild testify (the Guild is a member of the Copyright Alliance). Six days later we had a conference call for me to speak with Sandra and the two House Judiciary Committee Subcommittee counsels, Joe Keeley and Heather Sawyer, so they could hear what I had to say and make sure I was a good fit. If they both agreed, then I would receive an invitation to submit testimony and to appear in New York on June 2, 2014.

While we waited to find out whether I’d be invited, Sandra outlined some thoughts on what we needed to cover in our testimony (we would be able to submit our testimony whether or not I was invited to testify). And there was a lot to cover! Lisa and I spent hours on the phone writing and rewriting to sharpen the necessary points and make them as pertinent as possible.

Some of the key points:

How would the extension of the Doctrine to include digital works affect the way illustrators, photographers, designers, etc. price their work? Without the ability to license our work and charge for our work based on the clients’ actual needs, our small clients wouldn’t be able to afford us, and our large clients wouldn’t be willing to pay the costly “all rights” fees we would have to charge.

How would it affect the value of our work? We would in effect be forced into a work-for-hire world where our work could be resold, reused, buried, or revised beyond our control.

On May 23, I received an e-mail that began:

“Dear Mr. Shems,

Good afternoon. The Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing entitled “First Sale Under Title 17” on June 2, 2014 at 9:30 a.m. in Ceremonial Courtroom 9C at the Daniel Patrick Moynihan United States Courthouse on 500 Pearl Street, New York, NY 10007.  Please see the attached PDF inviting you to testify at this hearing.”

And I was in. Yikes!

Now we had to get the testimony finalized so it could be submitted by the May 29 deadline. Lisa and Sandra did more fine-tuning, and Lisa also wrote a background prep of 1600 words describing each of the subcommittee members, their roles, and their likely stance on the topic of the First Sale Doctrine to help get me ready. I had a lot of reading to do and a lot of learning.

By now my friends had caught wind of my impending appearance in front of U.S. lawmakers (mentioning it on Facebook will do that!). To answer their questions, I had to make sure I understood fully what the issues were. It was helpful to see where the potholes in my knowledge were when speaking with friends, so I could try to get some tar and fill them.

On June 1, Lisa and I drove to New York City. The entire four-hour car ride was spent talking doctrine and copyright, digital first sale, and secondary markets. I wanted to fill my head with as much information as I could pull from Lisa. Until someone begins drilling USB ports into our noggins, the best way for me to do this was to ask a million questions and pose as many scenarios as I could imagine.

On the morning of the 2nd we left our hotel and made our way to the hearing. In the hall outside the courtroom we met Sandra Aistars and Tricia McKiernan, as well as Mickey Osterreicher of the National Press Photographers Association, Jan Constantine of the Authors Guild, and Roy Kaufman of the Copyright Clearance Center. Once the room was opened, we took our places.

The representatives took turns speaking about the subject at hand and then allowed each of the witnesses five minutes to give their abbreviated testimony. The majority read prepared words (including myself, one eye on the page and the other on the timer counting down in front of me), while a few spoke passionately off the cuff.

Testifiying before House Judiciary Committee

Witnesses testifying before the House Judiciary Committee, June 2, 2014

These are excerpts from my spoken testimony:

… Graphic artists, illustrators and photographers generally license, rather than sell, their work commercially. This allows us to provide our clients exactly the rights they need, and to set a price that fairly compensates for those rights, while allowing us to retain control over the copyright in our work for other purposes. …

… I am concerned, about proposals to expand the First Sale Doctrine in the digital world to allow reselling of creative works over the Internet. There is no such thing as a “used book” in the digital world.  Every copy of a file is as good as the original, and doesn’t degrade over time, so every digital book sold under the First Sale Doctrine would compete directly with my client’s sales—this means my clients will have fewer sales and fewer resources to devote to illustrate or design their works. As a result, I would likely have fewer clients and we might see a decline in the industry in which I make my living.

I am also concerned that infringement will become even harder to police than it is now. How will we know that all copies of the original file have been deleted before it has been sold or given away under a digital First Sale Doctrine?…

Following the testimonies was a Q and A as the Congressmen searched for deeper understanding and clarity. The Congressmen were not accustomed to having a creative present—usually we are represented by the companies that sell the products (music, books, etc.) in which our work appears. I fielded a couple of questions with answers mired in brevity about how the eradication of licensing would adversely affect my business and especially my clients. Ask me the same questions now, and I could go on and on…

The Congressmen were particularly interested in questioning John Ossenmacher, CEO of ReDigi, a (relatively) new marketplace for reselling digital rights. Had enough of Duran Duran’s Rio? ReDigi wants you to be able to resell it on their site, and the buyer would get a pristine digital CD at a lower cost. No longer using your copy of Adobe Photoshop? Should you be able to sell it? What sort of repercussions would this secondary market have on the primary market? And how about the ripple effect for the music, publishing, and software industries if their sales drop? Suddenly the consumer is left footing the skyrocketing bill, and the shrinking markets reduce opportunities for creative professionals to get work.

In my many years as a Guild member, advocacy was one area I never really plugged into. I was somewhat oblivious to this part of the Guild, content to know that somebody was keeping an eye on ‘things’ so I could run my freelance illustration and design business securely. But it was a real eye opener to suddenly come to understand that a change in copyright law was being considered that could so drastically affect the way creative professionals like me do business.

I have so much more appreciation for what the Guild does, especially that their proactive advocacy on behalf of creatives gets them invited to government hearings like this one!

I really appreciate the trust that Lisa, Tricia, and the Executive Committee of the Guild put in me. To say this was an awesome experience is putting it mildly. Terrifying, too. But it was an honor to have been able to participate in our government and to see how things (sort of) work. Even more incredible was the opportunity to get our testimony on the record for all to see and read. You can watch the hearing and read the testimony of all of the witnesses on the Judiciary Committee’s webpage. I especially urge you to read Greg Cram’s testimony to get an understanding of the issue as it relates to libraries.

Later that same month, I was accepted as a participant at the Copyright Green Paper Roundtable Workshop organized by the United States Patent and Trademark Office to continue the discussion and the input concerning the Doctrine. The setting was less formal, but the conversations continued with both sides laying out for the record how the changes to the Doctrine might adversely or positively affect their respective businesses. And once all the information has been gathered and the hearings have concluded, we will watch as the subcommittee takes the next step to decide where to proceed with the proposed changes.

Stay tuned because the outcome of the Congressional hearings, as well as the Patent and Trademark Office hearings, have the potential to change copyright law (not just the First Sale Doctrine section) as it is currently written, and that WILL affect how you run your business.

© 2014 Ed Shems

To watch a recording of the hearing or read the testimony of the witnesses, visit the hearing page on the Judiciary Committe’s microsite.

Wallpart: Online Print Shop “Stealing” Arists’ Work is Not What You Think

Posted by Rebecca Blake on July 30, 2015

We have to start with this warning: please do not visit Wallpart’s website (you’ll read why). Earlier this spring, illustrators were up in arms when it appeared that an online business, Wallpart, was appropriating their work and selling high resolution prints. Social media was inundated with reports of people finding their work on Wallpart’s website, articles were written on photography and illustration blogs and forums, and a petition – of questionable effectiveness – was started to shut down the website.

A closer investigation revealed the Wallpart is not what it appears to be. First, a search we conducted on Wallpart’s website pulled up on odd collection of poster “art.” In addition to illustrations and paintings, search terms pull up nonsensical images such as snapshots, web banners, and random web graphics. (The site’s Twitter account also shows a similarly random selection of web-based images.) Search results are inconsistent; illustrators searching for their own work have been stymied when repeated searches showed vastly different results. Secondly, the site’s Terms and Conditions claim (in broken English) that they “…don’t steal photos or images that other people have shared and pass them off as your own. We have no base of images and doesn’t host and store the image on servers… the site uses the data of the most known search engines.” [sic] And third, the site’s counter, claiming over 3,000 happy customers, is in fact a static image.

It now appears the Wallpart is actually an elaborate phfishing scheme, devised to trick visitors into entering in their personal data. Comic artist John Ponikvar summarized his findings on his blog, Peter & Company. The site features a prominent “Report Violation” link, which appears to collect the personal data from anyone filling out the form. As Ponikvar reported, the Report Violation form “…is actually the main purpose for the site’s existence – they completely anticipate artists being upset about their work supposedly being sold, so they developed a system to exploit those who complain.” Additionally, the site‘s source code is larded with malware and malicious code; one of our board members reported that her personal computer was hijacked by the website as she was looking into the site’s functionality.

The site’s search feature appears to use web scraping software, which funnels Google’s image search results into Wallpart’s storefront layout. That explains both the oddity and inconsistency of the search results. People seeking to report the site to Wallpart’s webhost have been confused on where to report the website. The site appears to frequently change webhosts, and utilizes CloudFlare software, which acts as a reverse proxy for websites, delivers content quickly and, ironically, protects sites from online threats such as spamming and DDOS.

Below: Wallpart's footer includes a prominent link to what appears to be a DMCA/copyright infringement reporting page (highlighted). The Report Violation form in fact collects personal data used in pfishing.

Wallpart screenshot

Guild Member Discount for Design Thinkers 2015 Conference

Posted by Rebecca Blake on July 27, 2015

Design Thinkers 2015 logoWith over 2,000 attendees and 30+ speakers, DesignThinkers is Canada’s largest conference for visual communicators. It is a must-attend for any informed, forward-thinking creative, communications or marketing professional or team.

The inspiring event, now in its 16th year, breeds change agents who become drivers of innovation. DesignThinkers 2015, taking place November 12 & 13 at The Sony Centre in Toronto, will delve into industry trends with visionaries from a range of communications-related disciplines including design, user experience, advertising, branding, consumer engagement, film, social media and entrepreneurship.

Sessions teach delegates how to create effective communications by exploring cutting-edge innovation, the latest technology, demographic and ethnographic trends, strategic management techniques, cognitive theory and much more.

Speakers include:

•    Coralie Bickford-Smith, book jacket designer for The Odyssey, Little Women, the Sherlock Holmes series & more
•    Cap Watkins, BuzzFeed's first-ever VP of Design
•    Annie Atkins, lead graphic designer for Oscar-winning “The Grand Budapest Hotel”
•    Robin Hunicke, co-founder, Funomena gaming studio
•    Manuel Lima, Design Lead, Codecademy & Founder, VisualComplexity.com
•    Sree Sreenivasan, Chief Digital Officer at the Metropolitan Museum of Art
•    Austin Kleon, best-selling author of Steal Like An Artist
•    Hjalti Karlsson, co-founder, karlssonwilker inc.
•    Chris Dixon, Design Director, Vanity Fair
•    Karim Rashid, renowned industrial designer
•    Art Chantry, poster designer & creator of the grunge style
•    Nathalie Nahai, Web psychologist
•    Frank Chimero, author & founder, Another

Graphic Artist Guild Members are invited to register at the discounted “Group/Org Member” rate on the registration form. Click on the radio button next to “Member of Partner Organizations,” and select “Graphic Artists Guild” from the drop-down menu. Note that the Early Bird rate deadline is coming up on October 2!

Click here for information on travel discounts. Get full details and register at www.designthinkers.com.

Taylor Swift Listens to Photographers’ Concerns; Foo Fighters Not So Much

Posted by Rebecca Blake on July 24, 2015

As we reported in June, the publicity engendered by Taylor Swift’s protest of Apple’s licensing terms on behalf of artists brought to light the onerous contracts her management company had been requiring concert photographers to sign. Photographer Jason Seldon pointed out the hypocrisy of the contract, since Swift’s takedown of Apple’s iMusic license was undertaken, in her words, on behalf of creators. The outcry cast a spotlight on other troublesome concert photography contracts. Lady Gaga has been demanding all copyrights to concert photographs since 2011, and the Foo Fighters’ contract includes a rights grab of supernatural proportions: photographers are limited to one use of the photos, and the band is granted all copyrights “throughout the universe in perpetuity.”

le Soleil screenshotThe fallout on social media was comprehensive, with photographers, trade publications, and photographers’ associations decrying the contracts. The American Society of Media Photographers (ASMP) launched a Twitter campaign under the hashtag #fair4photogs. Some media outlets took a stand as well. The Irish Times declined to cover Swift’s sold-out Dublin shows in June, while photographers for six Montreal newspapers refused to shoot her concert there. Instead of sending a photographer to a Foo Fighters concert, Washington City Paper offered to buy fan photos and, tongue in cheek, promised not to ask for either their copyrights or their first born children. In perhaps the most creative response, Le Soleil in Quebec bypassed the contract by sending a cartoonist to document a Foo Fighters concert (right).

In an encouraging turnabout, in mid July, Swift released a new contract that has been lauded as a fair compromise with photographers. The contract is the result of negotiations between Swift’s representatives and Mickey Osterreicher, General Counsel to the National Press Photography Association (NPAA) legal counsel . The new contract permits photographers to use their concert photos of Swift in their portfolios and websites, permits news outlets to publish the photos more than once, and states that Swift’s agents can ask photographers not abiding by the contract to delete images, rather than destroy their equipment.

Unfortunately other musicians haven’t had a similar change of heart. The Foo Fighters management insisted to Washington City Paper that their contract is standard and exists to “protect the band.”  The Paper isn’t buying it. As they reported, “…that's not even close to being true. The Rolling Stones, to name one huge act, aren't demanding newspapers sign over their pictures and the Stones are in the middle of selling out half of the stadiums in North America.”

Guild Filed Response to the “Copyright Protection for Certain Visual Works” Notice of Inquiry

Posted by Advocacy Liaison on July 23, 2015

The Graphic Artists Guild has filed a response to the Notice of Inquiry (NOI) extended by the Copyright Office on April 24. The NOI, titled “Copyright Protection for Certain Visual Works,” seeks commentary on authors of visual works and licensees on five specific questions:
1. What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?
2. What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?
3. What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?
4. What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic art works, and/or illustrations?
5. What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

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