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Copyright Small Claims White Paper Released by Visual Arts Associations

Posted by Advocacy Liaison on March 02, 2016

While there has been a great deal of discussion recently about the possibility of Congress creating a small claims process for visual arts, several visual artist groups, representing hundreds of thousands of creators, have joined forces to propose key components of potentially forthcoming small claims legislation. Collectively, the groups represent photographers, photojournalists, videographers, illustrators, graphic designers, artists, and other visual artists as well as their licensing representatives.

The white paper, which can be viewed here, advocates for the creation of a small claims tribunal within the U.S. Copyright Office. The document is collaboration between American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).

These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims — federal district courts — is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims process within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.

The Graphic Artists Guild opines that the goal of an alternate, small-value, copyright infringement court system is to encourage proper business practices and the licensing of copyrighted works, as well as discourage unauthorized use. The procedure and system ought to be easy to use by both parties, with expeditious results and lower costs for the process, and with evidentiary requirements to deter false claims. More rights holders will be able to get monetary compensation from unauthorized users. Users will be aware that it is more cost-effective to contact the rights holder and pay a licensing fee rather than infringe, because rights holders will have easier access to legal recourse.

This negotiated document, which lays out the basic framework for small claims legislation, is in large part consistent with the legislative recommendations set out in the “Copyright Small Claims” report released in late 2013 by the U.S. Copyright Office. In some instances, the white paper offers alternative suggestions to those put forth by the Copyright Office.

The visual artists’ organizations listed above have now distributed this legislative proposal for a copyright small claims tribunal to members of Congress, the United States Copyright Office, the members of the undersigned organizations, and other important copyright stakeholders.
 


Advocacy organizations logos: APA, ASMP, DMLA, GAG, NPPA, NANPA, PPA

The DMCA Notice: “Take Down” is Letting Down Artists

Posted by Rebecca Blake on February 03, 2016

Since the DMCA notice procedure was written into law in 1998, it’s proven to be of limited effectiveness in combating copyright infringement online. “DMCA” stands for the Digital Millennium Copyright Act, an ambitious law passed by Congress in an attempt to address, among other things, the piracy of copyrighted materials.  The DMCA notice procedure creates an avenue for copyright holders to have their infringed work removed from a website by contacting the website hosting company or ISP (Internet service provider). However, the notice procedure has come under fire from all sides.

The DMCA law implemented two 1996 World Intellectual Property Organization (WIPO) treaties. To bring the US compliant with those treaties, the law criminalized the creation of systems to circumvent digital right management measures, and raised penalties for copyright infringement on the Internet. OSPs (online service providers), including ISPs, were concerned that they would be penalized for copyright infringement conducted by users of their systems. The concern was justified; by US law, anyone participating in copyright infringement or distribution of infringed work is liable. The DMCA “notice and take down process” creates a safe haven for those companies.

Essentially, OSPs are required to publish the contact information for a designated DMCA agent responsible for processing DMCA notice requests. Copyright holders can contact the OSP through the agent, and if their take down notice complies with the statutory requirements, the OSP is required to take down the infringing work. Doing so renders the OSP not liable for any infringement. The process also provides a means for the individual posting the content to appeal the take down with a counter notice. (For a instructions on how to issue a take down notice, see our article “Hey, That’s My Work on Their Web Site!” in our Tools + Resources.)

The problem with the DMCA take down notice is that it puts the burden on copyright holders to police the Internet, only to see the infringed work crop up repeatedly. In fact, the DMCA procedure has been termed “take down Whac-A-Mole.”  Part of the problem is that the DMCA law did not anticipate peer-to-peer networking, which permits data transfer between users without an intermediate server. Peer-to-peer file-sharing networks such as BitTorrent have long been sources for pirated material such as films, music, books, graphic novels, software, etc. An additional problem is that OSPs have no incentive to police content before receiving a take down notice, since prior knowledge that content may be infringing would forfeit their safe harbor exemption. This concern was raised by Professor Sean O’Connor while testifying at a House Judiciary Committee hearing in 2014. (Read David Kluf’s recap of the hearing on Trademark and Copyright Blog.)

Professor Sean O’Connor

Professor Sean O’Connor being introduced at the House Judicary Committee hearing on the DMCA Take Down Notice. (screen capture from the hearing video)

For their part, technology companies complain that the DMCA take down procedure is rife with abuse, and fails to recognize fair use exemptions. During the House testimony, Paul Semienski, General Counsel for the parent company of  WordPress, cited examples of a DMCA notice being used to squelch criticism, and stated that the counter notice process to appeal a takedown is largely inefficient. Reports of abuse of the take down process appear to be exaggerated, though. On the NSU legal blog, Steve Carlisle pointed out that Semienski only cited three examples of abusive uses of the notice. Google in its transparency report states that 97% of the takedown notices were removed, meaning that at most, Google challenged only 3% of the notices, which could have been abusive. By those statistics, at the time of the hearing hearing, Google was receiving up to 6.3 million legitimate notices in one week. 

Paul Semienski, General Counsel for WordPress

Paul Semienski testifying at the Judiciary Committee hearing. (screen capture from the hearing video)

Overall, Google counsel Katherine Oyama has expressed satisfaction with the DMC notice procedure. She testified at the Judiciary committee hearing that, despite the rapid growth in the number of take down notices received by Google reporting infringement on its search engine, the company was able to speed up its response time. She also recommended that rather than amending the take down procedure, means for copyright holders to police and monetize their work (such as through Google’s Content ID system) should be developed.

As proof of the success of the DMCA take down process, Google cites the extreme number of notices it processes – 560,000,000 in 2015 alone. Many of those take down notices are most likely handled by automated systems implemented by major copyright holders such as recording companies and film studios. However, as independent filmmaker Ellen Siedler reports on her blog, Vox Indie, the take down process provided by Google is an onerous 8-step procedure. Additionally, Google does not publish the contact information for their DMCA agent as is required by law. The result is a Gordian knot of a process that deters individual rights holders and probably reduces the number of take down notices Google receives.

Katherine Oyama, Google Counsel

Katherine Oyama at the Judiciary Committee hearing. (screen capture from the hearing video)

A solution mentioned by many advocates for copyright holders is modifying the existing process to a “take down and stay down” notice. Carlisle describes that process as “[o]nce a DMCA notice is filed, all files with that ID need to be taken down, not just one on one website. New postings that match that ID need to be blocked.” The result will be that repeat postings of pirated material will be blocked, the overall number of DMCA notices will decline, and OSPs will need to allocate fewer resources to process them. Dropbox has already in place a similar process. Files uploaded to Dropbox are assigned a unique code number, and, if a DMCA notice is filed on that code number, Dropbox disables further public sharing of the file.

“Take down and stay down” has its detractors. Techdirt describes the proposal as “The Rebranding of SOPA,” the hugely unpopular anti-piracy legislation that was dropped a few years ago. The Electronic Frontier Foundation (EFF) describes take down and stay down as “filter everything.” And Google’s Oyama describes the process as “problematic.” The leading reason given for the opposition to take down and stay down is concern with abusive notices, despite the fact that they represent a tiny percentage of the overall number of notices.

NEA Report Shows Stronger Contribution of the Arts to the US Economy than Previously Assumed

Posted by Rebecca Blake on January 15, 2016

A report issued in mid-January by the National Endowment for the Arts (NEA) concludes that the arts make a substantial contribution to the US economy – 4% of the GDP (gross domestic product), or $698 billion. The report, A Decade of Arts Engagement: Findings From the Survey of Public Participation in the Arts, 2002–2012, summarized the first in-depth study by the federal government of the impact of the arts and cultural sector to the GDP. The study was conducted over ten years in partnership with the Arts and Cultural Production and Satellite Account (ACPSA). The results indicate that the arts are a bigger driver of the US economy than previously assumed.

Among the surprising findings are:
• In 2012, the arts contributed more to the US economy than construction or transportation and warehousing.
• The arts employed 4.7 million workers, who were compensated approximately $334.9 billion.
• For every 100 new jobs created by the demand for the arts, an additional 62 jobs were created.
• Of the $869 billion contributed to the GDP from copyright-intensive industries, 50% is from the arts sector.

NEA Economic Value of the Arts infographic

(Click to enlarge.)

The report was released by the NEA in conjunction with two other reports. The first report, When Going Gets Tough: Barriers and Motivations Affecting Arts Attendance, investigated why people attend arts events such as dance, theater, music, and visual arts, and what factors prohibited them. The findings showed that more Americans attend live arts events (51%) than exercise regularly (46%), and that socializing, learning new things, and supporting their community were the top motivators. The study also showed that life stages (pursuing higher education, marriage, family raising, retirement), rather than age alone, predicted arts attendance significantly. For example, families with children under six cited lack of time as the top reason why they couldn’t attend arts events. Other barriers included difficulty in accessing a location, which significantly impacts older adults and people with disabilities, resulting in a loss of up to 11 million attendees. 

The second report, A Decade of Arts Engagement: Findings from the Survey of Public Participation in the Arts, 2002–2012, studied why and how Americans engage in the arts. Over 37,000 individuals were surveyed. The results showed that exposure to the arts in childhood was a stronger predictor of whether an adult engaged in the arts than age, gender, education level, or income; a person who visited museums or attended live performances as a child is 3-4 times more likely to engage in the arts than a person who didn’t. The results also showed that 54% of Americans – 120 million – attended at least one live arts event in the past year. Not surprisingly, technology facilitates participation in the arts: 71% used electronic media to watch or listen to the arts, and many used digital media in the creation of their own artworks. While women outstripped men in arts participation in general, men were more likely than women overall to use electronic media to create or perform music, or to create visual works online.

The NEA has made the data for the results available to researchers, policy makers, and artists through a new online platform that was launched on January 12th. The platform, the National Archive of Data on Arts & Culture (NADAC), provides free access to both the data and resources and promises a “a user-friendly platform for querying the data.” The report and supporting documents can be downloaded from the NEA’s publications page.

Infographic @ National Endowment for the Arts

Ad Agency Video on Spec Work Belies Reality Facing Creators

Posted by Rebecca Blake on November 18, 2015

A video and blog post on spec work produced by Toronto advertising agency Zulu Alpha Kilo is burning up the Internet. In the video, an actor approaches different businesses unfamiliar with work on spec (for the most part) and asks for free products or services – a cup of coffee, a breakfast, architectural design, picture framing, and personal training. The incredulous reaction from the business owners doesn’t deter the actor, who trots out business jargon to justify his request: “You guys can make me a spec breakfast, right? And if I enjoy it, I’ll make you guys my ROR, my Restaurant of Record…” He even pushes the personal trainer to give him the intellectual property rights to the training techniques. The video concludes with a challenge to ad agencies: “It’s time we all said no to spec.”

As Adweek reported, the video was created by the agency founder Zak Mroueh for presentation at Strategy magazine’s Agency of the Year event.  Mroueh told Adweek that Zulu Alpha Kilo hasn’t done a pitch requiring spec work in five years, freeing up time and resources to work on clients’ brands rather than on generating new business. The strategy seems to have worked for the agency; they reported that they’ve tripled their staff and gained high-profile clients such as Google and Corona.

It’s heartening to witness an ad agency pushing back on spec work. Unfortunately, the equation is quite different for the professionals contracted by ad agencies to create content. As reported in numerous publications, such as Mashable, New Business Intel, and the LA Times, ad agencies are increasingly turning to crowdsourcing to generate content for their clients. The Mashable article’s glib description of, “hordes of talented people” who are “willing to work on the cheap and on the fly,” belies the experiences reported by many professionals. Requests for work on spec or free have skyrocketed (see our articles on “Spec Work Documented on Social Media” and “Artist Dies of Exposure”), undervaluing the illustration, design and animation professions.

“There’s a double standard being applied to the professionals who create the content that drives the advertising industry.”

Crowdsourced content is being leveraged by a new breed of ad agency, such as Victor & Spoils. Victor & Spoils, which launched in 2009, prides itself on being an agency which collaborates with brand fans – or as their website describes them, “lunch ladies” – as well as seasoned advertising pros, pulling in fan feedback on brands at the outset of the creative process. The agency relies heavily on crowdsourcing. A 2009 article on Wired.CO.UK described how the agency used platforms such as crowdSPRING, 99designs, and GeniusRocket for projects ranging from brand strategy work to TV spots. (The agency even used crowdsourcing for its original logo and website design.)

Victor & Spoils also utilizes their network of professional creatives to generate content. In the Wired article, agency founder John Winsor described their process: 50-100 of their “creative department” are invited to contribute to a project, and from the submissions, 6-12 finalists are selected to compete for the final product. Only the finalists and winner are compensated. Of course, the participants give up any pretence of ownership of intellectual property; the agency’s terms stipulate that any contribution is work-for-hire. Winsor complains that only 10% of the creative output is any good, requiring “strong creative direction” from agency staffers.

The crowdsourcing model used by Victor & Spoils isn’t unique. Talenthouse (“the world’s largest creative department”), Tongal (“The World’s First Studio-on-Demand“), and GeniusRocket (“A creative video agency powered by a curated crowd”) all rely on content inexpensively provided via crowdsourced projects. The trend makes the acclaim of Zulu Alpha Kilo’s anti-spec video bittersweet. It’s inspiring to see the video which casts a spotlight on spec work receive so much recognition. However, if the example shown by Victor & Spoils reflects a growing trend, there’s a double standard being applied to the professionals who create the content that drives the advertising industry.

Below: a screenshot from Zulu Alpha Kilo’s video. This guy can’t believe he was asked to work for free.

Zulu Alpha Kilo no-to-spec video

Guild Participates in Creative Rights Caucus 2015 for the House Judiciary Committee

Posted by Advocacy Liaison on November 12, 2015

On November 3, Guild members Shaftel (Advocacy Liaison) and John Schmelzer (past National President) participated in the 2015 Creative Rights Caucus for the House Judiciary Committee in Washington, DC.  The event was held in a Judiciary Committee hearing room in the Rayburn House Office Building.
 
The Creative Rights Caucus is a bi-partisan legislative “listening” committee co-Chaired by Representative Judy Chu (D-CA) and Representative Doug Collins (R-GA). The event was organized by the Professional Photographers of America [PPA]. David Trust, Executive Director of the PPA, moderated the panel discussion. Panelists included photographer Denis Reggie, illustrator John Schmelzer, photographer Mary Fisk Taylor, graphic artist Lisa Shaftel, and photographer Michael Grecco.
 
We had an extraordinary turn-out of approximately 150 people and standing room only in the hearing room.
 
The Congressional Creative Rights Caucus is a bipartisan Caucus dedicated to protecting the rights of content creators. More importantly, the Caucus aims to help the public understand that we cannot judge the entertainment industry by how well famous Hollywood or music stars are doing.

Panelists L to R: Denis Reggie, John Schmelzer, Mary Fisk Taylor, Lisa Shaftel, and Michael Grecco. David Trust moderated at the podium. Rep. Judy Chu is seated behind Denis Reggie. Photo courtesy of PPA.

2015 Creative Rights Caucus panelists. © PPA

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