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.
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 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 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 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.
Design Community Dismayed by Decision to Crowdsource Tokyo Olympics Logo
Posted by Rebecca Blake on January 22, 2016
At first it seemed that the Tokyo Olympics were on track for building a strong identity for the 2020 games. In July 2015, the Tokyo 2020 Organizing Committee unveiled a logo designed by Kenjiro Sano, a compilation of flat shapes that created a stylized Didone T, combined with a red sun identifier for Japan. The logo was an homage to the simple graphics created for the 1964 Tokyo Summer and 1971 Sapporo Winter Olympics, and was a refreshing contrast to the energetic, hand-script driven identities created for the Beijing, London, and Rio Games. However, the development of the Tokyo Olympics identity went into a tailspin when Belgian designer Olivier Debie accused Sano of plagiarizing Debie’s logo for the Théâtre de Liege.
When Debie and the Theatre filed a joint plagiarism lawsuit against the International Olympic Committee (IOC), the Tokyo Olympic Committee scrapped Sano’s logo. However, the committee’s solution to finding a logo was equally controversial. In mid-October, the committee announced it was crowdsourcing the logo design via a contest, essentially resorting to spec work. The winning logo designer would be awarded 1,000,000 Japan yen ($8,250) and two tickets to the opening ceremony, but would relinquish all rights to the logo in perpetuity. Numerous designers and arts organizations reacted with dismay, and the AIGA issued an open letter asking the committee to reconsider its decision.
AIGA’s letter to the Tokyo Olympic Committee, written by former executive director Ric Grefé, referenced AIGA’s opposition to spec work. First, the letter pointed out that the contest asked designers to contribute hours of unpaid work in the hope of being compensated. Secondly, by opening the contest to the general public rather than limiting it to trained designers, the Committee was disrespecting the design profession and devaluing the work of designers. Third, the reward offered for the winning logo is far below a fair fee for a mark that will generate vast licensing income. Grefé concluded by pointing out that the copyrights for the logo should properly reside with the designer, and not with the committee “in perpetuity.”
Grefé’s eloquent letter pointed out that the logo contest belies Japan’s strong design history: “Japan has a universally admired graphic design profession and legacy, imbued with stunning visual imagery, strong typography, yet simplicity, directness, and elegance in its highest and best form… we believe that you are compromising one of the powerful messages others in the world perceive as emerging from Japan: a strong graphic and visual design tradition, innovative visual explorations, and respect for every profession.”
Despite the controversy, the Tokyo Olympic Committee proceeded apace with the logo contest, garnering 14,599 submissions. (That resolve was not a huge surprise. The logo for the Tokyo Olympic candidate city bid had been crowdsourced similarly.) In early January, the committee announced that they had narrowed the selection to four submissions, which are undergoing an intensive review to ensure that the designs do not infringe on copyrights or trademarks.
The committee also responded to AIGA’s letter, stating that they felt the contest process was “a good opportunity” to engage the Japanese people. By engaging the President of the Tokyo University of the Arts to chair the selection committee, and involving 20 designers who are members of the Japan Graphic Designers Association (their equivalent of AIGA), they felt they were providing enough oversight to ensure the selection of a high quality design. Lastly, the Committee pointed out that the transfer of intellectual property rights complied with the Olympic Charter issued by the IOC, and has been standard practice for Olympic Committees.
In their follow-up on Eye on Design on January 17, AIGA opined that the Tokyo Olympic Committee simply didn’t understand the issue with work on spec. AIGA concluded that while they hadn’t expected the Committee to end the contest, they hoped that other organizations would “use their power and influence to create change for the greater good in the future, and not just make the decision that benefits them at a particular moment, regardless of the wider, global implications.”
In the meantime, the Tokyo Olympic Committee plans to unveil their final selection in March. Sano, the designer of the original Tokyo logo, continues to insist that he did not plagiarize Debie’s logo. Debie, however, has withdrawn his lawsuit, citing prohibitive legal costs. Debie’s potential to recoup his costs may have been hampered by his failure to register the Theatre’s logo design as a trademark.
Below: The logo design contest requires applicants to show their submissions in a variety of formats.
Lawsuit May Successfully Challenge Fair Use Defense in Art Appropriation
Posted by Rebecca Blake on January 11, 2016
Artist Richard Prince has made a career out of rephotographing others’ images, earning the ire of photographers and artists. This practice led to an ultimately unsuccessful copyright infringement lawsuit by photographer Patrick Cariou. In that case, the court weighed in favor of Prince, agreeing that for the most part, his appropriation of Cariou’s photos was “transformative” and falls under fair use. This year, Prince is being sued once again for infringement, by photographer Donald Graham. And this time, experts agree that a fair use defense by Prince will have a much dimmer chance of succeeding. The outcome of this case could clarify further the limits of fair use protection in the cases of art appropriation.
Fair use is often cited as a justification for appropriation art. Section 107 of the Copyright Act defines the purposes for which use of a copyrighted work can be considered “fair”: criticism, commentary, teaching, scholarship, research, and reporting news. It also defines four criteria to be considered: the purpose and character of the use (commercial or non-profit); the nature of the copyrighted work; how much of the copyrighted work is used; and the effect the use could have on the potential market for the copyrighted work or it’s value. Fair use is often misunderstood, and there is a grey area of interpretation on what constitutes fair use.
Fair use was cited by Prince as a defense in Cariou vs. Prince. In 2008, photographer Patrick Cariou claimed that Prince violated his copyright in appropriating 35 of his photos for Prince’s Canal Zone exhibit at the Gagosian Gallery. Cariou published his intimate black and white portraits of reclusive Rastafarians in his book Yes Rasta. Prince glued cutouts from the book onto plywood and applied crude overpainting. His defense in the lawsuit claimed that work fell under fair use. While Cariou won an initially in lower court, the United States Court of Appeals for the Second Circuit found Prince’s favor for all but five of the works. (In 2014, Prince and Cariou settled out of court on the remaining five works.)
In the Prince vs. Cariou decision, the court appeared to expand the boundary of fair use. In deciding that Prince’s work was transformative, the court took into consideration “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” That interpretation of “transformative” was crucial to Prince’s defense. Ordinarily, an artist’s intention to imbue an appropriated work with new meaning or message is crucial to determining if the work in transformative. However, in his testimony in the original case, Prince stated that he had no such intention. During the appeal, the Warhol Foundation issued an amicus brief, in which they asked the court to consider the “broader art community,” rather than just the artist, to be the reasonable observers of the paintings. The transformative nature of the work would be apparent to that community, presumably art critics, dealers, fellow artists, collectors, and audience.
The Guild strongly disagreed with this interpretation. In an amicus brief filed by the Guild and other arts organizations, the Guild argued that the “reasonable person test” proposed 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.”
A fair use defense that hinges on such a definition of a “reasonable observer” would have less weight in the current infringement case. This case stems from Prince’s “New Portraits” series, shown at Gagosian Gallery and at The Frieze Art Fair in 2015. Prince appropriated photos posted to Instagram by a wide number of people – models, bloggers, photographers, etc. His reworking of the images was minimal; some images were cropped, and Prince added his own “comment” to the Instagram comments. The exhibit was predictably widely criticized, particularly by photographers. The ire was fanned by both Prince’s press release for the exhibit, in which he claimed “What’s yours is mine”, and by the up to $100,000 price the pieces commanded. It seemed inevitable that Prince would be sued for copyright violation, and in early January, photographer Donald Graham did just that.
At the heart of Graham’s lawsuit is his black-and-white photograph, Rastafarian Smoking a Joint. The photo had been posted to Instagram by a third party, where Prince discovered it and appropriated it. When Graham discovered that his photo was being sold as part of the New Portraits show, he instructed his lawyers to send cease and desist letters to Prince and Larry Gagosian, owner of the Gagosian Gallery. Prince appeared to dismiss the request; Art News reports that in response to a complaint by Graham’s wife about the appropriation, he posted, “You can have your photo back. I don't want it. You can have all the credit in the world.”
Art News interviewed a number of intellectual property attorneys on Graham’s lawsuit, and they agree that he has a much stronger case than Cariou. They point out the Prince’s modification of Graham’s image was minimal – a slight cropping of the photo on top and bottom and the addition of the Instagram comment – weakening any transformative defense argument. Additionally, Graham copyrighted the photo and sells it as part of an edition through his Paris dealer, A. Galerie, as well as from his studio. (Graham is a well-known photographer who routinely exhibits his photographs in museums and galleries, and sells prints.) Unlike Cariou, who did not generally earn an income from gallery sales, Graham can claim that Prince’s sales of his Instagram appropriation will cut into Graham’s market for that image.
Below: What goes around... Donald Graham posted a compaint about the ”Prince of Appropriation” to his Instagram account when he discovered his photograph had been appropriated.
Copyright Infringement Dispute Highlights Issues of Plagiarism on Social Media
Posted by Rebecca Blake on December 29, 2015
Illustrator Ally Burguieres discovered this past Fall that one of her illustrations was posted to Taylor Swift’s social media accounts. The work was a copy of an illustration Burguieres sells as a print, and the fan who copied the work signed her own name rather than including Burguieres’ credit line. Swift apparently posted a snapshot of the fan’s post to her Twitter, Tumblr, and Instagram accounts to promote her 1989 tour. After a year of negotiating with Swift’s representatives, Burguieres posted on Facebook that while her infringing work was immediately removed from Swift’s account, she was offered a four-figure compensation with the stipulation that she donate the amount to an animal charity. She refused the offer since it did not include her primary request: that her work be credited to her. (Swift’s representatives dispute this account.)
In light of Swift’s outspoken support of artists’ rights, the dispute received a lot of attention. Burguieres declined to pursue the matter any further. In an interview in Hyperallergic, Burguieres stated that she was satisfied with the attention the dispute brought to the issue of plagiarism. She put her finger on the issue artists have with the culture of sharing: “I know it’s a sharing culture now, and I have no problem with sharing artwork and having a collaborative culture as long as it’s credited.”
For individual illustrators, copies of their work made by fans creates a situation complicated by the illustrators’ reliance on licensing income to support their livelihood. On one hand, the adulation of a true fan is affirming and copies of the illustrator’s work can, if properly credited to the illustrator, generate publicity. On the other hand, fan art can dilute the licensing value of an illustration. Some illustrators are tolerant of fan art. Others who request that fans refrain from publishing copies of their work – something well within their rights – are often excoriated as greedy.
In Burguieres’ case, the situation was further complicated by the fact that the Taylor Swift fan who copied and posted Burguieres’ work signed her own name to it. Swift and members of her team were not aware that the image was pirated. The ease with which the image was reposted to Swift’s multiple social media accounts – and from there, reposted, downloaded, and shared countless times – essentially meant that as soon as the fan uploaded the copy, Burguieres lost any semblance of control over her image.
Of course, the situation would have had a different outcome had some common sense (and basic courtesy) been followed. The fan should not have signed her name to an illustration that was a close copy of someone else’s work. (In fairness to the fan, she appears to be young and naïve – the case makes a good argument for adding copyright awareness to high school art curricula.) Swift’s publicity team should also have credited the original illustrator once the piracy came to light. After all, credit for her creation was the outcome Burguieres desired the most: “It shouldn’t be that difficult to give credit.”
Below: Burguieres’ side-by-side comparisons of her illustration and Swift’s social media post. (© Ally Burguieres, used with permission of the artist)
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