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Copyright Law

Orphan Works in Canada: Attempting Accountability

Posted by Rebecca Blake on September 02, 2015

The alarms sounded this summer about orphan works legislation, while unfounded (no such legislation is under consideration at this time), underscored the emotional resonance of the issue. Congress has long wanted to address the issue of orphan works, creative works whose author and copyright status are unknown. For a number of years, there has been a tremendous push by varied professions and industries – academics, museums, publishers, documentary filmmakers, the entertainment industry, and others – to pass legislation which would permit the use of orphan works without the fear of copyright infringement lawsuits. Creators are justifiably concerned that any legislation would weaken their copyright protection, or would enable businesses to use orphan works as a way of avoiding the cost of commissioning or licensing works.

Canada, however, does have in place a system that permits the use of orphan works, while attempting to protect the interests of creators. The Copyright Board of Canada has published a brochure outlining their system. A businesses or individual who desires to use an orphan work must first conduct a diligent search for the copyright holder, by contacting collective societies, doing Internet searches, and contacting publishers, libraries, museums, and educational institutions and ministries. Once a reasonable search has been conducted, the petitioner must fill out an application in writing which includes both a detailed description of the search for the copyright owner, as well as the intended use of the work.

Once the application is reviewed, and if the Board is satisfied that a diligent search was conducted for the copyright holder, it can issue a license and set a royalty fee for the usage. The license terms set the authorized use, such as number of copies, distribution, and expiration date. The royalty fee is not retained by the Board, but is distributed to whichever copyright collective society would represent the copyright holder. The collective societies may use the royalties in any way they see fit to benefit their members. However, if the copyright holder surfaces within five years after the expiration of the license, he or she is reimbursed the fee by the collective society.

To assist authors in monitoring what orphan works licenses have been granted, the Board’s website lists chronologically the licenses which have been issued going back to 1990. The site also lists the applications that have been denied, and gives the reason why. The system is somewhat limited, in that the license issued by the Board is only valid in Canada. However, the system enables those wishing to use orphan works for legitimate purposes to do so, while reducing any financial incentive to bypass illustrators and passing on to creators due compensation.

Screenshot from Copyright Board of Canada

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

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.”

Taylor Swift Advocates for Musicians, but not Photographers

Posted by Rebecca Blake on June 29, 2015

Note: After this articles was published, Swift revised her concert contract, following the recommendations of photographers. 


Creators were galvanized when Taylor Swift issued her open letter protesting Apple’s decision to not pay musicians, producers, and writers during the 3-month free trial of the new Apple Music streaming service. Her letter read like a manifesto: “These are the echoed sentiments of every artist, writer and producer in my social circles who are afraid to speak up… Three months is a long time to go unpaid, and it is unfair to ask anyone to work for nothing.” Apple paid attention and immediately reversed their decision, and Swift was widely lauded by creators – except photographers.

Within a day of Swift’s open letter, UK photographer Jason Sheldon published an open response to Swift, stating that as admirable as her stance was, it was somewhat marred by the contracts her management company requires concert photographers to adhere to. That contract includes a rights grab; the management company, Firefly Entertainment, has the right to a worldwide, perpetual license to use (and to authorize others to use) any of the photos in any media for publicity and promotion. Sheldon concluded, “With all due respect to you, too, Taylor, you can do the right thing and change your photo policy. Photographers don’t ask for your music for free. Please don’t ask us to provide you with your marketing material for free.”

Firefly shot back at Sheldon, stating that he had misrepresented the terms of the contract. (The entire contract can be read from Sheldon’s original post.)  However, in a subsequent article on PetaPixel, photographer Joel Goodman pointed out that the contract Firefly is currently handing photographers is significantly worse. The terms Sheldon objected to – limiting photographers to a one-time use within a specific publication, and granting Firefly and Taylor Swift Productions the rights grab – are still present. But the current contract includes a clause permitting “authorized agents” of Firefly and Swift the right to “confiscate and/or destroy” the photographer’s equipment, should the photographer “fail to fully comply” with the terms of the contract. Or, as PetaPixel succinctly puts it, “Break Our Rules, and We Can Break Your Gear.”

While a protest against Swift’s inconsistency in sticking up for the rights of all artists hasn’t materialized, at least one publication has taken note. PetalPixel reported that The Irish Times, the second most widely read newspaper in Ireland, decided not to include any concert photography in their coverage of Swift’s sold-out gigs in Dublin. The Times wrote that they took issue with Swift’s photo authorization contract: “The photographs may be used on a one-time only basis and by signing her contract we grant Swift perpetual, worldwide right to use the published photographs in any way she sees fit.”

Below: An excerpt from Swift’s contract, highlighted by photographer Joel Goodman.

Joel Goodman contract excerpt

Happy 225, US Copyright Law!

Posted by Rebecca Blake on June 02, 2015

The first US federal copyright law was enacted 225 years ago, and the Copyright Office and Copyright Alliance marked the anniversary. The law was signed by George Washington on May 31, 1790, and established the basic principals of copyright law. The Office sent out an email relating the history of the law, noting that it was called “An Act for the encouragement of learning” and protected maps, charts, and books to encourage exploration of the North American continent:

“The first federal copyright law established the principle that authors should have rights to control the use of their works, such as how they are printed, reprinted, published, and sold. It recognized that authors should have meaningful remedies to encourage others to respect these rights and to provide appropriate compensation when those rights are infringed. And it recognized the central role a registration system plays in documenting a public record of creativity, ownership, term, and other legal facts.”

The Copyright Alliance celebrated the anniversary by creating “Copyright is a Conversation,” an online publication that explores the impact of copyright in the key areas of art, expression, creativity, technology, commerce, and identity. Pages for each area include a list of relevant articles and embedded videos. For example, the “Copyright is a Conversation about Art” page includes links to articles such as Blake Morgan’s “Art and Music are Professions Worth Fighting For” and David Newhoff‘s “Copyright Critics Don’t Quite Get Artists,” as well as a touching video by multimedia artist Cat Kaverly discussing her creative response to her fight with cancer.


Copyright Alliance Copyright is a Conversation artwork

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