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Copyright Law

Copyright Office Publishes Fair Use Index

Posted by Rebecca Blake on April 30, 2015

Copyright Office logoIn response to widely recognized confusion regarding the doctrine of fair use, the Copyright Office has published the Fair Use Index. The index publishes cases searchable by jurisdiction and category, including type of work, such as Painting/Drawing/Graphic, etc., and use, such as Parody/Satire, News reporting, etc. Selecting search features pulls a grid of cases, with year, court, jurisdiction, category, and outcome listed. The case names link to a PDF with details of the case, including an outline of the background, and a breakdown of the highest court ruling on the case.

The index is a valuable resource for artists and academics hoping to get a better grasp of how the fair use doctrine has been applied.  For example, searching under Painting/Drawing/Graphic pulls up a wide range of cases covering all sorts of graphic use, such as Bouchat v. Balt Ravens (logo infringement), Cariou v. Prince (appropriation of photography – see the Guild’s amicus brief on this case), and Setzer v. Green Day (illustration infringement).

The index was developed support in of the 2013 Joint Strategic Plan on Intellectual Property Enforcement, the proposal released by Victoria Espinel, the White House’s former Intellectual Property Enforcement Coordinator. The Office intends to keep adding key rulings to the database.

Apple Sued by Artist for Trade Dress Infringement

Posted by Rebecca Blake on April 20, 2015

It’s a case that puts a twist on the familiar David vs Goliath, artist-suing-major-corporation-for-copyright-infringement story. As has been widely reported, Miami-based Brazilian pop artist Romero Britto is suing Apple, Inc. and the designers known as Craig & Karl for trade dress infringement and unfair competition. At issue is a brightly patterned piece of artwork created by Craig & Karl, and featured prominently on Apple’s “Start Something New” webpage, as well as in Apple stores. The “Start Something New” campaign features works created by well-known artists using Apple products; the offering by Craig & Karl is purported to have been made on an iPad Air 2 with iOS apps.

Romero’s lawsuit is unusual, in that he’s not making the common charge of copyright infringement. An excellent article by Steve Schlackman in Art Law Journal points out that the offending image does not appear to be derived from an existing Britto work. Instead, Britto is claiming infringement of trade dress, the distinctive visual appearance of a product or packaging (such as Britto’s use of brightly colored geometric patterns and heavy black outlines). According to Schlackman, to prevail Britto must establish both that his work is distinctive, and that consumers are likely to be confuse the Craig & Karl work with his.

According to the complaint filed by Britto, such confusion has already occurred; Britto’s business partners and collectors confused the Craig & Karl artwork with his. According to the Miami Herald, Britto’s own lawyer, Robert Zarco, first saw the artwork at an Apple store in China and assumed it was Britto’s. However, Britto appears to have a steep slope to climb in proving infringement; bright patterns and thick outlines have been utilized by numerous artists (Keith Haring and Walter De Morais come to mind). As Schlackman states, the true test of whether Britto’s work merits trade dress protection may occur should he ever submit it to the United States Patent and Trademark Office.

Below: Screenshots from the Britto’s gallery (top) and the Apple “Start Something New” webpage.

Romero Britto screenshotApple Start Something New screenshot

Copyright and Creators: Addressing Anti-Copyright Sentiments

Posted by Rebecca Blake on March 30, 2015

John DegenJohn Degen, novelist and Executive Director of The Writers Union of Canada, recently engaged in a back-and-forth of the value of copyrights to creators. The discussion was precipitated by a question Degen had been asked on developments in Canadian copyright law. As described on The Writing Platform, “In Canada, a small tweak to copyright legislation resulted in a large loss of income for many writers when the principle of ‘fair dealing’ was extended to include education and interpreted by educational institutions to mean unlimited copying of relatively large portions of works.’ Degen summarized the importance of copyright to creative professionals as, “If you create it, you own it. If someone wants to use what you own, there needs to be a discussion.” He later elaborated on his point in a series of tweets, including one that compared an attack on copyright as a land grab.

This lead to a response from an academic in Finland, who asked whether copyright, as other legal concepts, should “develop and evolve” – a point of view that Degen describes as, “I'm not attacking your rights; I'm merely questioning whether or not they actually need to exist.” In the resulting Twitter exchange, Degen referenced the change in “fair dealing,” describing how a push by academics in Canada led to the elimination of collective licensing of written works for education, and resulting in a loss of income for writers. In the meantime, the price of the educational materials and tuition – ostensibly the reason for the law change – continued to rise. The result, Degen wrote, was “an attack on workers’ rights, creative livelihoods, on academic freedom, on students.”

Degen’s full article can be read on his blog.

Photo of John Degen used with permission.

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use”

Posted by Rebecca Blake on March 16, 2015

CAA logoThe Graphic Artists Guild, together with National Press Photographers Association (NPPA), American Photographic Artists (APA), American Society of Media Photographers (ASMP), PACA Digital Media Licensing Association, and Professional Photographers of America (PPA), has published a letter addressing concerns with the College Art Association’s “Code of Best Practices in Fair Use for the Visual Arts.”

Specifically, the letter contests a major conclusion of the study, that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.” The letter points out that artists only seek fair compensation to their work, and that the study fails to educate its audience on options for licensing work. The letter also notes that the study fails to address commercial applications of fair use made by museums and non-profits in the creation of objects and coffee table books for sale. Lastly, the letter expresses the dismay of the organizations that none were invited to particpate in the study groups leading up to the creation of the Code.

Some of the weaknesses identifed in the study, including incorrect assumptions of industry practices, misplaced recommendations, and the inclusion of personal opinion as factual information. The letter concludes that “Without participation from all of the stakeholders in the visual arts community there can be no consensus, let alone a set of “Best Practices in Fair Use for the Visual Arts.” As developed, rather than “providing a practical and reliable way of applying” copyright law and fair use, the document creates far more misconceptions than it resolves and encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing.”

The full text of the letter can be read here.

Oh, Dear, Canada: Government Issues Contest for Logo

Posted by Rebecca Blake on February 13, 2015

Canadian designers were startled when their government issued a contest, challenging design students to submit their original designs for a logo marking the 150 anniversary of the country’s confederation. Not only were the students requested to submit their work on speculation – only the winner would receive a paltry prize of $5,000 CA – but finalists were expected to transfer their intellectual property rights and waive their moral rights to their work. (Unlike the United States, Canadian copyright law defines moral rights, which include the right of attribution, the right to be published anonymously or pseudonymously, and the right to the integrity of the work.)

As Adrian Jean, President of the Graphic Designers of Canada (GDC) told the Ottowa Citizen, designers were particularly startled since the contest government had been engaging with the organization after an earlier attempt at a logo design flopped. The announcement of the contest in early December caught Canadian design organizations by surprise. GDC immediately issued an open letter to the government protesting the contest and within a few days had garnered thousands of signatures on an online petition.

Philippe Lamarre, president of the Société des designers graphiques du Québec (SDGQ), also submitted a letter decrying the contest, and, with the Association of Registered Graphic Designers (RGD), joined GDC in supporting the petition. RGD marshaled their student members for a #mytimehasvalue social media campaign in mid-January. Student designers were encouraged to post on social media photos of themselves holding up signs with the hashtag. Supporters – teachers, parents, and friends – followed suit with similar images stating “My students’ time has value,” etc.

The Canadian government persisted in carrying on with the contest. A spokesperson for Heritage Minister Shelly Glover told the Global News “[Our youth] are our future and we want to give them a unique opportunity to be involved in the celebrations for Canada’s 150th birthday.” The logo contest closed on January 23.

Below: A video produced by the Heritage Ministry cheerfully asks student designers to “join history in the making,” unfortunately by working for free.

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