Graphic Artists Guild Advocacy 2014
Posted by Rebecca Blake on November 25, 2014
2014 has seen a lot of discussion on copyright and intellectual property, with roundtables scheduled by the US Copyright Office, and House Judiciary Committee hearings. The Guild has been an active participant, representing the interests creators, and providing the perspective or working artists. Guild Executive Director Patricia McKiernan, Advocacy Liaison Lisa Shaftel, and Guild member Ed Shems spoke at a number of hearings and panel discussions. So far this year, we've presented seven times (in hearings, roundtables, and panel discussions), submitted two comment letters to the Copyright Office in response to their notices of inquiry, joined an amicus brief on behalf of the creators of Superman and artists Jack Kirby, and contributed to articles. A full listing of our advocacy efforts is below.
US Copyright Office Roundtable discussion, “Orphan Works and Mass Digitization”
March 10 & 11, 2014, US Copyright Office, Washington DC
Advocacy Liaison Lisa Shaftel on the panel, and Executive Directory Patricia McKiernan in attendance
Comment Letter to the US Copyright Office notice of Inquiry about “Strategic Plan for Recordation of Documents”
Composed by Lisa Shaftel
US Copyright Office Roundtables on Reengineering of Recordation of Documents
March 28, 2014, Columbia School of Law, New York City
Transcript available here
Patricia McKiernan on the panel
Comment Letter to the US Copyright Office Notice of Inquiry about “Technological Upgrades to Registration and Recordation Functions”
Composed by Lisa Shaftel
House Judiciary Committee Hearing on First Sale Doctrine
June 2, 2014
Guild Member Ed Shems on the panel, Lisa Shaftel and Patricia McKiernan in attendance
US Patent & Trademark Office, Office of Policy and International Affairs- Copyrights, Roundtable Discussions on “Remixes, First Sale, and Statutory Damages”
June 25, 2014, Harvard University School of Law, Cambridge MA.
Transcript available here
Webcast viewable online
Ed Shems on the panel, speaking on “the relevance and scope of the first sale doctrine in the digital environment”
Guild joined amicus brief in support of “Superman” creators, Siegel and Schuster, and artist Jack Kirby
The Graphic Artists Guild joined the National Writers Union (NWU), the Science Fiction Fantasy Writers of America (SFWA), and the Society of Children’s Book Writers and Illustrators (SCBWI) in signing on to an amicus brief on behalf of Laura Siegel, daughter of the co-creator of “Superman,” Jerry Siegel, along with Shuster, and Jack Kirby, an early Marvel Comics artist. The families of Siegel and Shuster, and of Kirby, petitioned the US Supreme Court hear their appeals of two Circuit Court decisions which rejected their attempts to regain the copyrights. The US Supreme Court refused to review the Appellate Court decision. Warner Brothers, present owner of Marvel Comics and the rights, won.
Kernochan Center for Law, Media and the Arts Symposium “Creation is Not Its Own Reward: Making Copyright Work for Authors and Performers”
October 10, 2014, Columbia School of Law, New York City
Lisa Shaftel on the panel, and Patricia McKiernan in attendance
Columbia Journal of Law & the Arts Symposium Issue Submission for Fall 2014
Composed by Lisa Shaftel
ICOGRADA 2014 General Assembly Meeting, and Professional Platform Meeting,
October 25 & 26, 2014, New York City
Patricia McKeirnan spoke on speculative practices.
Rebecca Blake, Graphic Artists Guild Representative to ICOGRADA and Patricia McKiernan in attendance
Roundtable discussion on United Nations Human Rights Council Special Rapporteur Farida Shaheed’s report, “Copyright Policy And The Right To Science And Culture”
October 28, 2014, NYU School of Law, New York City
Lisa Shaftel on the panel
Guild Executive Director on Speculative Practices at Icograda Professional Platform Meeting
Posted by Rebecca Blake on October 28, 2014
On October 25-26, the Guild attended Icograda’s first-ever Professional Platform Meeting in New York City, attended by representatives from over 14 countries. The meeting provided a structure for professional association members of Icograda to address common concerns in the industry. The Guild’s Executive Director Patricia McKiernan was asked to present to the international audience the Guild's stance on speculative practices. Her talk included examples of prominent crowd sourcing campaigns, such at those conducted by the Department of the Interior and the Obama for America Campaign, and described the Guild’s response. Following is the text of her presentation.
From a general definition perspective, I am defining graphic art as a service that encompasses a multi-disciplinary approach to answering how a business entity, or society, approaches the structure of communicating what it represents to the world at large in a visual, structured form that is easily understood – if I legitimately engage the services of a graphic artist or firm, then who I’m trying to attract will understand who I am and engage in my business in a way that mutually attracts our needs. A happy collaboration for all with no spec work in sight.
As an organization, the Guild does not support spec work and looks at as an ethical question. The risk involved to the artist is the greatest – there is a risk of not being paid for the work, it takes time away from other possible worthwhile paying projects, and may incur expenses that are not reimbursable to the artist. As we all know, graphic art is a service, not a commodity, and requires a partnership with the client and the artist to deliver the product. Spec work does not foster that environment. There is invariably too little information available to do the work successfully.
Working on spec also has some legal issues, the main one being a copyright issue. Work on spec doesn’t transfer any rights to the work — the graphic artist retains all the rights to it. Obviously, when spec work is submitted, the work is rarely returned and the possibility it will be used without compensating the graphic artist is real. Enforcing your right as a graphic artist once this happens is a huge undertaking, financially and time-wise, especially if you have not registered your copyright to the work.
Crowd-sourcing may be legal as a business model, but it is another form of spec work taken to an extreme, and far from ethical from the Guild’s perspective. We’re talking about devaluing the work of an entire profession in an incredibly public fashion. Crowd-sourcing sites encourage below market rates and treat graphic artists as an expendable commodity instead of highly trained professionals providing a genuine service.
If a client wants to own the copyright of the artwork created by a professional graphic artist, the value of that copyright is reflected in the fees charged. The below market rates encouraged by crowd-sourcing sites ignores the value of copyright and creates a perception within the business community that copyright doesn’t exist, has little value, or that a business hiring a graphic arts service owns everything the graphic artist produces.
In late 2011, the US Federal Department of the Interior crowd-sourced a logo project, probably because they thought it would appeal to the social media oriented designers (not necessarily an accurate perception), and is a prime example of how pervasive the trend is. We sent a letter to the Department of Interior and suggested that they do the math: if the DOI paid for every one of the designs submitted (over 279 submissions) each design would earn less than $5.37. We also pointed out that although the business models of crowd-sourcing logo mills are completely legal, they are considered highly unethical by the Graphic Artists Guild and the AIGA, and the Graphic Artists Guild expects higher ethical business practices from a U.S. Government agency and to hire a professional graphic designer that lives and works in the United States.
During the same year, the Obama For America Campaign to re-elect Obama, announced a design contest titled, “Art Works; A poster contest to support American jobs.” The alleged purpose of the contest was to create a poster to motivate people to support the President’s, American Jobs Act, as part of his then re-election strategy. The contest website read: "Obama For America is seeking poster submissions from artists across the country illustrating why we support President Obama's plan to create jobs now, and why we'll re-elect him to continue fighting for jobs for the next four years. Three winners will receive a framed edition of their poster signed by Barack Obama and a limited edition of the poster distributed by Sponsor (approximate retail value $195).” Yes, this was a crowd-sourced contest soliciting spec work from American artists for the purpose of promoting American legislation to create jobs. Naturally, we sent a letter pointing out the irony of a contest that doesn’t appropriately compensate the winner of a campaign to support American jobs.
I won’t go into every detail we pointed out in our response to the contest, except to say that during the Great Depression of the 1930s, the U.S. government sponsored a work program that valued artists enough to employ hundreds of them to make posters for what Franklin D. Roosevelt called, The New Deal, which included something called the Federal Art Project. Approximately 500 artists were hired by the Federal Art Project; more than 35,000 posters were designed and 2 million printed. Many of these posters are now part of the US Library of Congress collection. All of these artists were paid and given credit for their work.
One other area of concern that may not necessarily be looked at initially as spec work — although I am beginning to think it is the next generation of spec work, and crowd-sourcing certainly falls into this category— is the concept of mass digitization and what the Internet is creating besides the concept of community and knowledge as we discussed yesterday for the up and coming generation. Don’t get me wrong – community and knowledge is a good thing and I’m the first one to search for more community and knowledge online. It is part of what I do on a daily basis as Executive Director for the Guild.
Here’s the thing.
Mass digitization comes in many forms, and has created a commodity economy mindset where everything competes on pricing, i.e., how can I get it for less, perhaps even free, perhaps creating a revenue stream based on work that’s not mine – all shades of spec work.
Is a logo created by someone on fiverr.com truly a logo? When everyone and/or everything competes based only on pricing of mass digitized goods and services, it fosters an environment of competition that eventually guarantees a non-livable wage especially for the creators of original goods and services regardless of what country they live in. It also fosters an environment of infringement, whether willful of inadvertently, in order to compete and create in the fastest and cheapest way possible.
In the US, the economic contribution by graphic artists is felt in every industry. For example, the licensing industry generated $ 93.37 billion in revenue in 2011 for all 18 product categories tracked, according to The Licensing Letter, a US based organization that tracks licensing revenues across all categories. Think movie action figures, games/toys, sports figures, gifts and collectibles, apparel, pet products, novelty items, etc., and graphic artists create the foundation for that revenue.
All of us in this room know that everything we touch on a daily basis required the contribution of graphic artists to create order out of chaos. The irony is, despite the high public visibility of the works of graphic artists, the actual artist is invisible and seldom acknowledged for what he/she contributes to the economy, and society, at large — not just in the US, but for every country represented by Icograda, regardless of whether or not there is a design policy in place in a particular country.
So a here’s a legitimate question to ask, and it is a question we recently asked in a response to a US Copyright Office request for comments: Is the economy we want to create for the future on a global level based on a commodity mindset where everyone competes on pricing, i.e., how can I get it for less or perhaps even free?
The core issue for every conversation we are having this week-end is the value each creative member of this group brings to the world. Value and how it is defined is a highly individual viewpoint, which doesn’t mean it can’t be defined or questioned, although it can present some perplexing thought patterns.
We talk about education for both artists and buyers. And, yet, how do you educate someone, the buyer in particular, whose only concern is, “How cheap can I get this for?” It’s a challenging question and not necessarily easy to answer. When I get calls from buyers about fees and how little can they pay someone, I often ask the buyer, “How would you feel about people trying to pay for your product or service as cheaply as possible, leaving very little room to cover overhead, day-to-day living expenses, and never see any profit?” It is also a point I make when I talk with Congressional staff and Congressional committee members here in the US.
The global community may not have answers right now to the problems we face with spec work. And that just means we have a little more chaos then graphic artists may have a solution for, which means we get to play with what we are presented with — and isn’t playing with possibilities what graphic artists are trained to do? So let’s play with the possibilities of how the conversations we’re having here are intertwined with one another and maybe a solution will show itself.
Photo © Icograda. Used with permission.
Marvel Comics Settles with Estate of Jack Kirby, and Includes Creators’ Credit
Posted by Rebecca Blake on October 08, 2014
At the end of September, Marvel Comics announced a settlement of a long-standing copyright dispute with the estate of Jack Kirby, the comic book artist who co-created many iconic superheros, such as Captain America, Thor, The Avengers, and The Incredible Hulk. The settlement was announced a few days before Supreme Court Justices had scheduled a call that was due to discuss whether or not the high court would consider the case. Although the terms of the settlement have not been revealed, The Hollywood Reporter has reported that new issues of Marvel Comics now include a credit line, “Created by Stan Lee and Jack Kirby” on the back cover.
The settlement represents a tenuous victory for the Kirby estate. In 2009, after Disney reportedly paid $4 billion dollars to purchase Marvel, the Kirby estate issued copyright termination notices on 45 Marvel characters, as permitted under the Copyright Act of 1976. The case bogged down in court, and seemed to be over for the Kirby estate in 2013, when the Second Court of Appeals determined that Kirby’s work was created under a work-for-hire agreement, and that Marvel is considered the statutory owner. The estate of Superman creators, Siegel and Shuster, suffered similar legal setbacks when the 9th Circuit Court of Appeals ruled that a 2001 agreement the estate signed with DC Comics was legally binding, negating an earlier ruling from 2008 which reverted copyrights to the estate.
The estates of both Jack Kirby, and of Siegel and Shuster filed a petition to have the Supreme Court overturn the lower court rulings. Their efforts gained traction when amicus briefs were filed by numerous copyright experts and pro-creator organizations, including the Graphic Artists Guild. On October 6, the Supreme Court refused to hear intervene in the copyright dispute, offering no explanation (which is typical in such decisions). While the settlement with the Kirby estate brings some comfort to creators, the lack of a Supreme Court hearing means there still in no clarification on the issues raised by the lower court rulings. As the University of Miami Law Review reported, “The Kirby brief concludes that the lower court’s overly broad interpretation of the “instance-and-expense” test will subject artists’ rights to “revisionist history” and will unjustly deprive them of their property rights by creating an “almost irrebutable presumption that any person who paid another to create a copyrightable work was the statutory ‘author’ under the work-for-hire doctrine. Assuming that someone paid these independent contractors during that time period, it seems that almost no one could benefit from the 1976 Copyright Act’s termination rights provision.”
Google, Photographers Settle Litigation over Books
Posted by Rebecca Blake on September 10, 2014
NEW YORK, NY – [SEPTEMBER 10, 2014] – A group of photographers, visual artists and affiliated associations have reached a settlement with Google in a lawsuit over copyrighted material in Google Books. The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works.
Further terms of the agreement are confidential.
The agreement resolves a copyright infringement lawsuit filed against Google in April, 2010, bringing to an end more than four years of litigation. It does not involve any admission of liability by Google. As the settlement is between the parties to the litigation, the court is not required to approve its terms.
This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.
The plaintiffs in the case are rights holder associations and individual visual artists. The associational plaintiffs are The American Society of Media Photographers, Inc., Graphic Artists Guild, PACA (Digital Media Licensing Association), North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, and American Photographic Artists. The individual plaintiffs are Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Taback Living Trust, Leland Bobbé, John Francis Ficara, and David W. Moser.
The case is American Society of Media Photographers, Inc. et al. v. Google Inc., Case No. 10-CV-02977 (DC) pending in the United States District Court for the Southern District of New York.
About Google Inc. and Associational Parties
Google is a global technology leader focused on improving the ways people connect with information. Google’s innovations in web search and advertising have made its website a top Internet property and its brand one of the most recognized in the world.
Founded in 1944, The American Society of Media Photographers (ASMP) is the premier trade association for the world's most respected photographers.
The Graphic Artists Guild (GAG) is a national union of graphic artists dedicated to promoting and protecting the social, economic and professional interests of its members and for all graphic artists including, animators, cartoonists, designers, illustrators, and digital artists.
PACA (Digital Media Licensing Association) is a trade association established in 1951 whose members include more than 80 companies representing the world of digital content licensing.
NANPA, the North American Nature Photography Association, is the first and premiere association in North America committed solely to serving the field of nature photography.
Professional Photographers of America (PPA) represents more than 27,000 photographers and photographic artists from dozens of specialty areas including portrait, wedding, commercial, advertising and art.
Founded in 1946 the National Press Photographers Association (NPPA) is the “voice of visual journalists” promoting and defending the rights of photographers and journalists, including freedom of the press in all its forms.
The American Photographic Artists (APA) is a leading national organization run by and for professional photographers.
Google is a trademark of Google Inc. All other company and product names may be trademarks of the respective companies with which they are associated.
Guild joins Amicus Brief in Support of Comic Creators & Artist
Posted by Rebecca Blake on August 11, 2014
On July 22, the Graphic Artists Guild joined the National Writers Union (NWU), the Science Fiction Fantasy Writers of America (SFWA), and the Society of Children’s Book Writers and Illustrators (SCBWI) in signing on to an amicus brief on behalf of the heirs of the creators of “Superman,” Siegel and Shuster, and Jack Kirby, an early Marvel Comics artist. The brief supports the rights of both families to sue DC Comics and its parent company, Warner Brothers, and Marvel, respectively, to recover the original copyrights to the work of Siegel and Shuster, and of Kirby. The families of Siegel and Shuster, and of Kirby, are seeking to have the US Supreme Court hear their appeals of two Circuit Court decisions which rejected their attempts to regain the copyrights.
Siegel and Shuster, the co-creators of the Superman series, originally signed away their rights to the character in 1938. Their heirs unsuccessfully sought to terminate DC Comic's copyrights to the work by issuing statutory notices of termination in 1997 and 2002. In 2013, the Ninth Circuit Court stripped Shuster's heirs of termination rights, a ruling that according to NWU ignores the Supreme Court's opinion in the landmark case NY Times v Tasini (2001), which ruled that termination rights are inalienable. Kirby's heirs sought to terminate Marvel’s copyrights to his artwork, a move which Marvel countered in 2010 by suing the Kirby family for declaratory relief that Kirby's work fell under the work for hire exception to the Copyright Act. The judge hearing the case ruled in favor of Marvel, and the ruling was affirmed by the 2nd Circuit Court of Appeals in 2013.
While the Supreme Court has not yet stated that the petition will be reviewed, indications are good. Marvel initially refused to respond to the petition, but was asked by the justices on May 14 to file a response. The petition has been distributed to the justices for conference on September 29. A ruling by the Supreme Court in favor of the heirs to Siegel, Shuster, and Kirby would have wide implications on the interpretation of the copyrights of independent contractors and creators.
For clarification on “all rights,” “termination of rights,” and “work for hire,” visit our Contract Glossary.Previous Page Next Page
How to Start your Very Own Communication Design Business!
Enter your email address below to receive a FREE download of "Starting Your Own Communication Design Business" written by Lara Kisielewska.
By signing up you will receive our monthly newsletter and occasional e-mails about our advocacy work. You will have the option to opt out at any time.
Looking to keep up with industry trends and techniques?
Taking your creative career to the next level means you need to be up on a myriad of topics. And as good as your art school education may have been, chances are there are gaps in your education. The Guild’s professional monthly webinar series, Webinar Wednesdays, can help take you to the next level.
Members can join the live webinars for FREE - as part of your benefits of membership! Non-members can join the live webinars for $45.
Visit our webinar archive page, purchase the webinar of your choice for $35 and watch it any time that works for you.