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Copyright Law

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.

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.

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