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Copyright Law

Apparel Company Counters Piracy Accusation with Bogus Claim of Copyright Infringement

Posted by Rebecca Blake on December 28, 2015

Canadian illustrator Eric Kim reported that his illustration of pro wrestler Randy “The Macho Man” Savage was pirated by apparel company Freeze Central Mills Inc. In October, Kim discovered that Freeze had taken his artwork, flipped it, erased part of the image, and printed it on red sweatshirts with a holiday message. Although the sweatshirt image has been altered to appear as if it were created from cross-stitch embroidery, the illustration was clearly traced from Kim’s original. The sweatshirt was sold by 80s Tees in time for the 2015 holiday season.

Kim immediately took action, contacting Freeze Central Mills through his lawyer, and requesting a fee of $1,500 for the use of his image, of which $1,000 would have gone to legal fees. According to Kim, Freeze returned an offer of $350, a paltry sum. (Kim estimates that 1,440 sweatshirts were sold, generating $20,106 in income for Freeze.) The website which sold the sweatshirt, 80sTees, was far more accommodating to Kim, removing the shirt from sales, and adding Kim’s credit line and a link to his website. 

What is even more troubling about Freeze’s response to Kim is that they told him that he “was in trouble with the WWE (Worldwide Wrestling Entertainment) for even making the image” since he was violating the copyright of the image. If Kim’s recounting is accurate, Freeze is incorrect on several counts. Randy “The Macho Man” Savage was the ring name of the wrestler, Randy Mario Poffo, who developed the character while wrestling for the Worldwide Wrestling Foundation (WWF). WWE  doesn’t hold the copyright to the character. While the character has been trademarked by Savage’s wife (the wrestler died in 2011), the trademark specifically covers action figures and accessories. 

Kim might have concerns should his image violate Savage’s (or his estate’s) right of publicity. However, right of publicity generally permits individuals to control the commercial use of their images. Kim created his illustration and posted it in his portfolio to showcase his skills; he never intended to market the image commercially. Additionally, right of publicity is not covered by federal statute, but is controlled by state law, and varies widely. (For more information on right of publicity, check out attorney Robert Clarida’s article on the topic on our Tools + Resources page.)

The irony of Freeze’s response to Kim is that the company, not Kim, sought to profit from the image. If the company was truly concerned with legalities, their marketing team would have done due diligence to ensure that using the image didn’t violate intellectual property or publicity rights. In fact, Freeze appears to have a history of violating trademarks. In February of 2015, the company was found to have violated trademark law in marketing goods bearing Bob Marley’s image. And in August, Adidas filed a lawsuit that accuses Freeze of violating their three-stripes trademark. In light of their history of trademark violation, Freeze’s response to Kim appears to be a blatant (and somewhat hypocritical) attempt to deflect the illustrator by raising bogus fears of copyright infringement.

Below: Eric Kim’s comparison of his illustration (left) and the Freeze sweatshirt. (© Eric Kim, and not the WWE! Used with permission of the artist.)

Illustration of Randy

The Restrictions in Stock Image Licenses Illustrators and Designers Need to Know

Posted by Rebecca Blake on October 06, 2015

Microstock websites – websites that purvey low-cost photos, illustrations, and icons – have become a standard image source for designers with small budgets and undiscriminating clients. Illustrators have also used microstock, either in the creation of collage or montaged imagery, or as reference material for illustrations. However, both designers and illustrators are cautioned to read through the licenses employed by microstock sites. The low fees and “royalty free” label extended by microstock sites do not translate to unlimited use of their images.

The terms of use of six microstock sites reviewed for this article – Thinkstock, Shutterstock, Getty, iStockPhoto, Dreamstime, and 123RF – all clearly stipulate that their licensed imagery cannot be used in the creation of logos, service marks, or trademarks. The language used to define the restriction varies slightly from site to site. Getty Images implies that an exception to the restriction can be requested in writing. Dreamstime restricts the use of their images in the creation of trademarks, but not logos. The remaining four sites are unambiguous in prohibiting the use of their licensed image in logo creation.

Restrictions which would affect illustrators seeking to use stock imagery as source material are not always as clearly spelled out. The license agreement for Getty Images is an exception; it states: “Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.” Of the licenses reviewed, only iStockphoto’s license includes similar language to Getty’s, but the other terms do restrict the reselling of their images. Since the authors of the microstock images retain the copyrights, one can reasonably surmise that an illustration based on a stock image may not be copyrightable.  A safer course of action for illustrators is to use source material that is clearly in the public domain.

There is a downside to using microstock sites in general. Much of the imagery uploaded to the sites is trite, stereotypical, or simply poorly executed. (Stock photos were beautifully lampooned by the fake images created to mark the release of the film, “Unfinished Business.”) Microstock is also blamed for devaluing the illustration and photography professions by using an unsustainable business model that can’t support professionals.

The license agreements for the stock images sites are:
123RF
Dreamstime
Getty Images
iStockPhoto
Shutterstock
Thinkstock

Below: highlighted portions of the Getty, iStockphoto, and Dreamstime licenses.

iStockPhoto license Getty Images license Dreamstime license

Library of Congress Technology Woes Shut Down Copyright Office

Posted by Rebecca Blake on September 14, 2015

Copyright Office logoCreators seeking to register their work online at the end of August were foiled by a system outage that took the electronic filing system offline. The outage lasted for nine days, from August 28th through September 5 and was caused, according to a report issued by the office, by the shutdown of a Library of Congress data center for scheduled maintenance. The Library’s information technology office was unable to bring the system back online for several days, costing the office about $650,000 in lost fees, as reported by The Washington Post.

The outage came on the heels of a damaging report by the Government Accountability Office, which accused the Library of failing to prioritize digital technology or effectively manage its computer systems. The Copyright Office, which is a department of the Library of Congress, uses the IT infrastructure – the network, servers, telecommunications, etc – maintained by the library.  In her testimony before the House Judicary Committee in April, Maria Pallante, Director of the Copyright Office, highlighted the need for the office to modernize, with technology staff independent from the Library and focused on the Office’s specific goals.

Terrence Hart covered the dilemma facing the Copyright Office in his article, “Outage shows need for Copyright Office modernization.” Hart points out the futility of housing the Copyright Office within the Library of Congress, considering that the two have distinct administrative needs and missions. He concludes by calling for Congress to give the office “the autonomy and resources it needs, without further delay.”

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

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