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Copyright Law

Buying your Own Logo – At Least it was Cheap

Posted by Rebecca Blake on February 11, 2015

After our November article on designer Sacha Greif’s investigation of Fiverr, we were contacted with an unbelievable story. Apparently The Logo Factory, a logo design and branding shop, had their logo ripped off on Fiverr not once, but three times.

At the end of last October, The Logo Factory founder Steve Douglas discovered an old version of the company logo on Fiverr. Knowing Fiverr’s notorious reputation for non-responsiveness when it comes to infringement complaints, Douglas contacted the designer directly. To his relief, the logo was removed immediately. However, a few days later, Douglas was notified by Jeff Fisher of Logomotives that the current The Logo Factory logo – in all its 3D glory, and including the “founded in 1996” tagline – was appearing in another Fiverr designer’s portfolio. Since their logo is a well-recognized, trademarked asset, Douglas couldn’t ignore the infringement.

The difficulty, as always, was in getting Fiverr to respond to the notice of infringement. Appeals via their social media accounts went unanswered, and Douglas knew from experience that the only way to reach Fiverr directly is to open an account – an onerous undertaking exacerbated by the amount of SPAM the site sends to registered users. Instead, he decided to purchase his own logo directly from the designer. The experience made all the more surreal by the designer’s insistence that the logo was an original. The “final” artwork was delivered speckled with a  “free trial” watermark, obviously generated by some trial version of software the Fiverr designer had used to cull the logo. The designer messaged Douglas to say he was removing the logo from his portfolio. Since this had been Douglas’ goal all along, he was more or less happy with the result.

Unfortunately the story doesn’t end there. Ten days later, Douglas got another notice from Jeff Fisher: yet another Fiverr designer was showcasing the old The Logo Factory logo. As Douglas wrote, “Whack a mole indeed.”

You can read Douglas’ full story on The Logo Factory blog.

Below: the pixelated, watermarked logo, delivered by the Fiverr designer. Worth every cent of $5?

Flickr Wall Art Puts a Spotlight on Creative Commons Commercial Licenses

Posted by Rebecca Blake on January 15, 2015

Creative Commons FlickrIn mid-October, Flickr announced the roll-out of a “new opportunity” for users to share their work as photo-mounted or canvas-printed Wall Art. One month later, the photo-sharing site announced that it had added over 50 million “freely-licensed” Creative Commons images to its Flickr Wall Art service, without the participation of the photographers. The announcement understandably enraged Flickr users. As Dazed reported, Flickr, or rather its parent company, Yahoo, would pocket all profits for the bulk of the sales, with the photographers receiving only a small attribution at the bottom of the print. (A small number of curated photographers, contacted by Flickr, would receive 51% of the sales.)

The announcement resulted in a firestorm of outraged articles from ardent Flickr users such as Jeffrey Zeldman, with the consensus being that the move on Yahoo’s part was short-sighted. As Flickr co-founder Stewart Butterfield (who left the company in 2008) told The Guardian, “It’s hard to imagine the revenue from selling the prints will cover the cost of lost goodwill.” Copyright advocates predictably took a tough line. Artists’ Bill of Rights urged Flickr users to change the licensing terms on their uploaded images from Creative Commons to “All Rights Reserved”, and warned that “‘share and share alike’ needs a reality check in today’s internet: the CC license adds dollars to an internet entrepreneur’s pocket, not yours.” The only organization that seemed to be unperturbed was the Electronic Frontier Foundation; EFF’s intellectual property director was reported as saying that it didn’t appear Flickr was doing any wrong.

The issue wasn’t that Yahoo intended toviolate copyright law. The images folded into Flickr’s Wall Art collection were covered by Creative Commons licenses which permit commercial use: “Attribution” (CC BY), permitting wide usage, including altering, remixing, and distributing; Attribution-ShareAlike (CC BY-SA) permitting the same rights as the CC BY license, as long as any derivative work is covered by the same license terms; and Attribution-NoDerivs (CC BY-ND), permitting distribution without alteration. Additionally, users had to knowingly select the CC commercial licenses. Flickr’s default license stipulates, “All Rights Reserved,” and users can select from any of the six licenses covered by Creative Commons, including the three which don’t permit commercial use.

However, many users, including supporters of sharing and remix culture, felt that Yahoo’s intention to profit from the works covered by the CC commercial licenses violated the “spirit’ of the Flickr community. Web developer Jen Simmons wrote “If the only option for preventing corporate abuse is to lock everything behind non-commercial-use licenses, the whole purpose of Creative Commons is weakened.” She identifies a key weakness in the Creative Commons commercial licenses — the licenses make no distinction between different kinds of commercial use, lumping together major corporations with small businesses, non-profits, and individuals: “I don’t believe that photographers, illustrators and others who want to share their work should have to agree that big companies can do whatever they want, including selling copies of those images on a massive scale. ”

In a thoughtful essay, Morten Rand-Hendriksen pointed out that the spirit of the Flickr service (which he defines as the “commonly agreed upon understanding” of its users) is at odds with the legal interpretations of the CC licenses. Rand-Hendriksen boils down the dissonance between spirit and legal meaning to “everyone should be able to do whatever they want with my photos, including earning money off their use without sharing it with me, as long as they are not the corporation that hosts those photos or a large corporation that should be able to pay me.” He agrees with Simmons that the Creative Commons licenses may need reevaluating. But as he concludes, “If you put content on the web, remember that the [Creatie Commons] license you apply to that content is universal. It grants the same rights to your neighborhood blogger and the corporation that hosts your content.”

Yahoo eventually backed down on the scope of the Wall Art Project, apologizing in a December 18, 2014 blog post. They announced that they were removing the Creative Commons-licensed images from the Wall Art pool and refunding all sales of those images. (Flickr users can still produce Wall Art of their own work, and only the work of Flickr-curated licensed photographers appears in the Wall Art site.) Artists’ Bill of Rights used the episode as an object lesson, cautioning creators to not use Creative Commons licenses, and urging them to embed metadata in their images, and register their copyrights.

So What Kind of Logo Can You Get for $5?

Posted by Rebecca Blake on November 11, 2014

Fiverr advertisementSacha Greif wondered just that when he heard about the bargain basement job site Fiverr, which connects buyers with sellers willing to provide their services – from business plans to programming to creative services – for only $5. Fiverr has been aggressively promoting their design services, exhorting businesses to “put an end to being ripped off” by paying $100 for a logo. In contrast, the website promises “unique design, fast and affordable.”

Grief had reason be intrigued. In  2011, he started an online service, Folyo, which connects businesses to vetted freelance designers. However, unlike Fiverr, Folyo places the budgets for the services provided by their designers at between $1,000 and $10,000, depending on the project.  Fiverr’s promise of “a custom design project” for only $5 seemed impossible. To investigate the quality of work he would receive, Greif created a fictitious company, SkyStats, and went to Fiverr to find a designer to create a logo.

As described in his article on Medium and on his blog, Grief noticed that the quality of the designers’ work quickly dropped off as he browsed through their portfolios: “…the quality would suddenly drop after a few pages, quickly going from sleek, glossy renders to amateurish, clumsy clip-art…these designers were appropriating other designers’ work, and passing it off as their own.” A Google reverse image search confirmed his suspicions. (Fiverr designers have a reputation for stealing work; Jeff Fisher of Logomotives has long been documenting Fiverr designer ripoffs on Twitter.) Greif also discovered that the claim of a $5 logo was a bit misleading; requesting “add-ons” such as source files or copyrights to the work added a whopping $20-40 to the fee.

Greif finally settled on three designers who portfolios appeared to carry only original work. The designers reassured him that they would only deliver original concepts. The initial logo designs ranged, in Greif’s opinion, from “bad to surprisingly good”, and he posted the results on his blog. That’s the point at which the story became complicated. Commentators on the blog soon reported that the work of two of the designers – the best work – was ripped off, and posted links to stock agencies carrying the graphics. In fact, the origin of one of the designs, a dimensional cloud graphic, is still up in the air – no pun intended. The work appears both in the Dribbble and Behance portfolios of a Russian designer, and on the stock image site, Dreamstime.

Greif contacted Fiverr to complain that their designers are selling infringed work, and not surprisingly, never heard back. (Fiverr’s terms state that services which engage in copyright or trademark infringement may be removed from the site, and the sellers of such services may be banned.) Greif is remarkably sanguine about cut-rate logos, comparing them to fast-food burgers. But his experience with Fiverr has soured him: “…people trying to deceive you by passing other people’s work as their own, and stock art as original work is another matter altogether. Sadly, this is the kind of incentives you create when you drive price down to such an extent.

Fiverr supplied logo 1 and original source

Fiverr supplied logo #2 and original source

Fiverr supplied logo #3 with original stock image

Marvel Comics Settles with Estate of Jack Kirby, and Includes Creators’ Credit

Posted by Rebecca Blake on October 08, 2014

Marvel ComicsAt the end of September, Marvel Comics announced a settlement of a long-standing copyright dispute with the estate of Jack Kirby, the comic book artist who co-created many iconic superheros, such as Captain America, Thor, The Avengers, and The Incredible Hulk. The settlement was announced a few days before Supreme Court Justices had scheduled a call that was due to discuss whether or not the high court would consider the case. Although the terms of the settlement have not been revealed, The Hollywood Reporter has reported that new issues of Marvel Comics now include a credit line, “Created by Stan Lee and Jack Kirby” on the back cover.

The settlement represents a tenuous victory for the Kirby estate. In 2009, after Disney reportedly paid $4 billion dollars to purchase Marvel, the Kirby estate issued copyright termination notices on 45 Marvel characters, as permitted under the Copyright Act of 1976. The case bogged down in court, and seemed to be over for the Kirby estate in 2013, when the Second Court of Appeals determined that Kirby’s work was created under a work-for-hire agreement, and that Marvel is considered the statutory owner. The estate of Superman creators, Siegel and Shuster, suffered similar legal setbacks when the 9th Circuit Court of Appeals ruled that a 2001 agreement the estate signed with DC Comics was legally binding, negating an earlier ruling from 2008 which reverted copyrights to the estate.

The estates of both Jack Kirby, and of Siegel and Shuster filed a petition to have the Supreme Court overturn the lower court rulings. Their efforts gained traction when amicus briefs were filed by numerous copyright experts and pro-creator organizations, including the Graphic Artists Guild. On October 6, the Supreme Court refused to hear intervene in the copyright dispute, offering no explanation (which is typical in such decisions). While the settlement with the Kirby estate brings some comfort to creators, the lack of a Supreme Court hearing means there still in no clarification on the issues raised by the lower court rulings. As the University of Miami Law Review reported, “The Kirby brief concludes that the lower court’s overly broad interpretation of the “instance-and-expense” test will subject artists’ rights to “revisionist history” and will unjustly deprive them of their property rights by creating an “almost irrebutable presumption that any person who paid another to create a copyrightable work was the statutory ‘author’ under the work-for-hire doctrine. Assuming that someone paid these independent contractors during that time period, it seems that almost no one could benefit from the 1976 Copyright Act’s termination rights provision.”

Google, Photographers Settle Litigation over Books

Posted by Rebecca Blake on September 10, 2014

NEW YORK, NY – [SEPTEMBER 10, 2014] – A group of photographers, visual artists and affiliated associations have reached a settlement with Google in a lawsuit over copyrighted material in Google Books. The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works.

Further terms of the agreement are confidential.

The agreement resolves a copyright infringement lawsuit filed against Google in April, 2010, bringing to an end more than four years of litigation. It does not involve any admission of liability by Google. As the settlement is between the parties to the litigation, the court is not required to approve its terms.

This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

The plaintiffs in the case are rights holder associations and individual visual artists. The associational plaintiffs are The American Society of Media Photographers, Inc., Graphic Artists Guild, PACA (Digital Media Licensing Association), North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, and American Photographic Artists. The individual plaintiffs are Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Taback Living Trust, Leland Bobbé, John Francis Ficara, and David W. Moser.

The case is American Society of Media Photographers, Inc. et al. v. Google Inc., Case No. 10-CV-02977 (DC) pending in the United States District Court for the Southern District of New York.


About Google Inc. and Associational Parties

Google is a global technology leader focused on improving the ways people connect with information. Google’s innovations in web search and advertising have made its website a top Internet property and its brand one of the most recognized in the world.
Founded in 1944, The American Society of Media Photographers (ASMP) is the premier trade association for the world's most respected photographers.

The Graphic Artists Guild (GAG) is a national union of graphic artists dedicated to promoting and protecting the social, economic and professional interests of its members and for all graphic artists including, animators, cartoonists, designers, illustrators, and digital artists.

PACA (Digital Media Licensing Association) is a trade association established in 1951 whose members include more than 80 companies representing the world of digital content licensing.

NANPA, the North American Nature Photography Association, is the first and premiere association in North America committed solely to serving the field of nature photography.

Professional Photographers of America (PPA) represents more than 27,000 photographers and photographic artists from dozens of specialty areas including portrait, wedding, commercial, advertising and art.

Founded in 1946 the National Press Photographers Association (NPPA) is the “voice of visual journalists” promoting and defending the rights of photographers and journalists, including freedom of the press in all its forms.

The American Photographic Artists (APA) is a leading national organization run by and for professional photographers.

Google is a trademark of Google Inc. All other company and product names may be trademarks of the respective companies with which they are associated.

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