Guild Joins Organizations in Amicus Brief in Fine Art Appropriation Case
Posted by Rebecca Blake on January 30, 2014
In mid-December, the Graphic Artists Guild joined other arts organizations (ASMP, Picture Archive Association of America, PACA, PPA, NPAA, Jeremy Sparig, APA, and ASJA) in filing an amicus brief in opposition to a brief filed by the Warhol Foundation in Patrick Cariou v. Richard Prince. Photographer Patrick Cariou sued fine artist Richard Prince for copyright infringment after Prince appropriated a number of Cariou’s photographs for a series of paintings. Prince duplicated the photographs from a published book of Cariou’s photos without seeking permission from Cariou, and minimally altered them. While the District Court found in favor of Cariou, the United States District Court of Appeals for the Second Circuit reversed much of that decision, withholding judgement of five of the paintings. The court found that the bulk of the paintings fall under fair use since they “manifest an entirely different aesthetic from Cariou’s photographs.”
The Warhol Foundation issued an amicus brief in which they argued in favor of the fair use finding, contending that the paintings are transformative in that they convey a different meaning or message than the original photographs. Additionally, the Foundation’s brief asks that the court consider the “broader art community” to be the reasonable observers of the paintings, to whom the transformative nature of the work would be apparent.
The amicus brief filed by the Guild and the other organizations disputes the Warlhol Foundation’s framing of fair use:
“The application of the “reasonable person” test for transformativeness, in the form advanced by Defendants and the Warhol Foundation in its amicus brief would permit the blanket appropriation of artistic creations without compensation to the authors and owners of the copyrights in those works. While appropriation is a long-known practice in the artistic community, the use of an artist’s underlying work in a different medium is no different than selling any intellectual property through a different channel of distribution. The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists.”
The brief urges the court to reject the “reasonable person” standard proposed by the Warhol Foundation, and to find no fair use in this case:
“Defendants and the Warhol Foundation propose an application of the “reasonable person” standard that would not even require modification of the original photographs’ aesthetic in any way. Such a standard would permit appropriating artists to circumvent the available licensing systems, knowing that a standard that permits simple after-the-fact rationalization for appropriation as a “fair use” defense forecloses many less-endowed visual artists from fighting them in the courts... Photographers, and all creators of original work, should not be deprived of their work’s value on the basis of appropriation.“
2013: Laying the Groundwork for Copyright Review
Posted by Rebecca Blake on January 23, 2014
In A Look Back at Copyright Review in 2013, Terry Hart of the Copyright Alliance outlines the groundwork which could provide a basis for a fundamental review of US copyright law. The Copyright Act of 1976 is outdated – the last large amendment to the act was the Digital Millennium Copyright Act of 1998. In March of 2013, in a lecture given at Columbia University, Register of Copyrights Maria Pallante issued a call for a comprehensive overhaul of US copyright law. Shortly afterwards, she was invited to testify before the House Judiciary Committee on the topic.
The Committee, chaired by Rep. Bob Goodlatte, made copyright review a high priority, and scheduled numerous hearings throughout the year. The first covered an academic project, “The Copyright Principles Project”, which sought to find consensus among a number of legal educators on copyright review. It was a disappointment for artists that not one creator was invited to testify. Following the theme, “Innovation in America,” the two subsequent hearings covered “The Role of Copyrights” and “The Role of Technology”. Copyright Alliance Executive Director Sandra Aistars testified at the first these hearings, arguing that copyright for creators is about empowerment, choice, and freedom.
A fourth hearing by the committee covered the “Role of Voluntary Agreements in the US Intellectual Property System” — private initiatives to address piracy and counterfeiting (but unfortunately not the role of search engines in facilitating piracy). At their final hearing on copyright issues, the committee addressed “The Rise of Innovative Business Models: Content Delivery Methods in the Digital Age.” This last hearing, according to the Alliance, “saw perhaps the most substantive discussion of copyright doctrine so far.”
Other government agencies were also very active in the copyright review arena. The Department of Commerce released “Copyright Policy, Creativity, and Innovation on the Digital Economy”, a paper produced jointly by both US Patent and Trademark Office (USPTO) and the National Telelcommunications and Information Administration which gave a substantive review of copyright law. The paper was three years in the making, and addressed the question of whether current copyright law is addressing the needs of creators in light of rapid technological advances in computing and networking. In October, the USPTO asked for input from stakeholders on key issues identified in the paper, such as statutory damages for secondary infringement and individual filesharers, and improving the notice and takedown system.
The Copyright Office also released two reports on copyright issues. The first recommended the establishment of a small claims court within the office. (The Guild testified before the Copyright Office on the small claims issue and is quoted in the report.) The second report recommended the establishment of a resale royalty on original works of fine art, as is currently done in 70+ countries worldwide. 2014 promises to continue to be an active year in copyright review; the Judiciary Committee has already scheduled three hearings on the topic in January.
Portrait of Terry Hart used with his permission.
Guild Attends Icograda General Assembly 25
Posted by Rebecca Blake on November 20, 2013
The Guild attended the Icograda General Assembly 25 from November 16-18. Icograda, the International Council of Communication Design, is a global organization representing the interests of design associations and educational institutions. As a Professional Member of Icograda, the Guild and other organizations were invited to present on the challenges facing our members, and on how we hope Icograda can help us achieve our goals. We described the Guild's activities within the United States on copyright and advocacy issues, and iterated our desire for a dialogue on speculative practices with similar organizations from around the world. We also expressed our desire for action with like-minded organizations via an Icograda platform on speculative practices. Following is the text of our presentation to Icograda.
Among the many excellent professional organizations in the United States, the Graphic Artist Guild is unique, in that we are a labor organization of predominantly freelancers. We represent a broad range of creative professionals, from illustrators to designers across several disciplines.
Our primary focus, as expressed in our mission statement, is to promote and protect the social, economic and professional interests of our members, and to improve conditions for all graphic artists at all skill levels. Our union status permits us to be active in advocacy work unhampered by limitations imposed by US law on traditional non-profit and professional organizations. This is a crucial distinction; we engage in lobbying in the US Congress to influence proposed legislation to the benefit of creative professionals. We also work closely with the Copyright Office in providing the perspective of our members. This past year, we testified before the Office on the difficulty of copyright holders’ ability to bring small copyright claims of $30,000 or less to court.
We are also members of IFFRO, the Authors Coalition, the Copyright Society of the USA, the Copyright Alliance, and recently became founding members of the International Authors Group. On the member level, we work to educate creative professionals on responsible business practices, copyright and intellectual property issues, and conducting professional relationships.
The challenges we’re facing are a reflection in how the methods of communication and business models for creatives have evolved. There is an overall erosion in the understanding of the value of copyright protection among society as a whole; business models which require creatives to work on speculation for the lowest fees possible are becoming the norm; and we’re seeing an alarming number of creatives who either do not understand or do not implement basic business practices (such copyright protection, responsible pricing, and appropriate licensing terms), undermining the industry as a whole.
Participation in Icograda is crucial for us in achieving our mission in a meaningful way. Although our organizational structure means that we are active within the United States, we need to be adaptive to the changes in the global economy and in how our colleagues across the world conduct their business. This includes engaging in an ongoing dialogue with professional organizations and institutions from other continents. For example, business models which hurt US designers may in fact benefit designers in another part of the world. In responding effectively on behalf of our members, we need to understand how the same practice can have very different impacts. This will educate us in formulating better and more forward-thinking policies for our stakeholders.
What we would like to see the most from our involvement with Icograda is an ongoing dialogue with like-minded organizations through out the two years between General Assemblies. We’re particularly interested in seeing a Speculative Practices committee activated which will provide a forum for collaborative discussion and action.
What we hope to achieve in our participation in Icograda is a balanced approach to protecting the interests and integrity of all our stakeholders, returning to creators the right to control and prosper from their work.
Copyright Office Report Acknowledges Impact of Small Claims Issues with Individual Creators
Posted by Rebecca Blake on October 17, 2013
On September 30th, the Copyright Office released their report on copyright small claims. The report documents “significant costs and other challenges of addressing [small] copyright claims” and recommends the establishment of an alternative system of adjudication within the Office. The report acknowledges the need for a streamlined approach to smalls claims, but one which permits alleged infringers to vigorously defend themselves.
The report was the result of three notices of inquiry over a two-year study by the Copyright Office, in which the office requested information from the public on whether the current legal system hinders copyright owners from pursuing copyright claims of relatively small value (those of a several thousand dollars or less). The Office also held public hearings in November 2012, at which the Guild testified. The Guild submitted three comment letters to the Office, and included the results of a survey the Guild conducted based on the questions in the Copyright Office’s notice of inquiry. About 1,200 copyright holders responded to the survey.
The Copyright Office specifically thanked those who participated in the Office’s public call for feedback and noted that the small claims issue particularly impacts individual creators. The Guild is proud to have participated in this public process, and thanks the many individual artists who responded to the Copyright Office’s call for information. The Guild is very pleased that nearly all of our recommendations were supported by the Copyright Office and outlined in the Study Report.
The full report is available on the Copyright Office’s website.
Copyright Office Closed for Government Shutdown
Posted by Rebecca Blake on October 02, 2013
Because of the Government shutdown, the Copyright Office is closed as of October 1st, 2013. While you can continue to use the online electronic copyright registration system, your copyright registrations will not be processed until the Office reopens. We'll keep you posted on when that happens.Previous Page Next Page
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