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Copyright Law

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.

On Gods and Macaques: Who Owns the Monkey Selfie?

Posted by Rebecca Blake on August 20, 2014

crested black macaque © David SlaterIf an Indonesian monkey in the middle of the forest on a remote island takes a selfie with an English photographer’s camera, who owns the copyright? While this sounds like a pseudo case history dreamt up by a creative law professor to present during a lecture on intellectual property, the story, and the rights issue raised, are very real. British wildlife photographer David Slater spent a number of days stalking a group of crested black macaque monkeys. As the animals became accustomed to him and his equipment, they approached the camera, setting it off. The resulting self portraits, showing the monkeys grimacing at their reflections in the large camera lens, are hysterical.

The photos were an Internet sensation when they appeared on a number of news websites such as the Daily Mail in 2011. (Slater licensed the images through his agent, Caters News Agency.) Recently, the images hit the news again when several of the images, marked as public domain, were published by a Wikimedia user in their “free media repository,” Wikimedia Commons. Slater requested that Wikimedia remove the photos, and the organization refused to do so, stating that the photographer cannot claim to own the copyright since he didn’t actually snap the photo.

So who does own the copyright? Attorney Leslie Burns addressed the issue in her blog post, “On the Monkey Selfie.” In her article, she cited Wikimedia Foundation’s  Chief Communications Officer Katharine Maher, who is quoted in the Washington Post as saying, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Burns disputes the basic premise presented by Maher, stating that since the photograph was taken in Indonesia, on a camera that belongs to a UK citizen, US copyright law hardly applies.

Guild Advocacy Liaison Lisa Shaftel expressed a similar view on the Copyright Clearance Center’s, “On Copyright ,” SoundCloud channel. In her opinion, US Copyright law is not relevant to the claim. Shaftel makes no conclusions as to who owns the copyright. However, she dismisses Wikimedia’s claim that the photograph is public domain, stating that the organization is making unauthorized use of the photo.

Burns dug up a case history that could have some bearing. In a second blog post, “More Monkey Business,” she cites the case of Urantia Foundation v. Maaherra. The case hinged on some text that was purported to have been authored by celestial beings. The court looked closely at whether the work was copyrightable, since authors were non-human. The court decision stated “…so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans.” Burns proposes that were Slater a US photographer, whatever work he did to the images – converting the RAW files, culling the photos, cropping or tweaking the color balance – would confer upon him copyright ownership since the photos were actually snapped by a non-human.

Of course Slater is not a citizen of the United States, and US copyright law is not applicable here. However, the conditions under which the photos were taken may be very relevant to the outcome of the case. Despite earlier stories which reported that the photos were taken without his intervention, Slater’s back story claims that he set up the conditions which enable the monkey-selfie: encouraging the macaques to come closer, adjusting the settings (auto-focus, shutter speed, etc.) to be optimal, placing the camera on a tripod the monkeys would approach, and even steadying the tripod with one hand.

While some may question Slater’s story, what isn’t up for debate is the impact having the photos available on the Wikimedia site is having on Slater’s bottom line. As Petapixel reports, “Whether or not the letter of the law agrees with Slater’s claim is up for debate, but one thing is certain: he’s missed out on a lot of potential licensing fees thanks in large part to the photo being uploaded to the Commons.”

Photo © David Slater. Used with permission.

Guild joins Amicus Brief in Support of Comic Creators & Artist

Posted by Rebecca Blake on August 11, 2014

Seal of the Supreme CourtOn July 22, the Graphic Artists Guild joined the National Writers Union (NWU), the  Science Fiction Fantasy Writers of America (SFWA), and the Society of Children’s Book Writers and Illustrators (SCBWI) in signing on to an amicus brief on behalf of the heirs of the creators of  “Superman,” Siegel and Shuster, and Jack Kirby, an early Marvel Comics artist. The brief supports the rights of both families to sue DC Comics and its parent company, Warner Brothers, and Marvel, respectively, to recover the original copyrights to the work of Siegel and Shuster, and of Kirby. The families of Siegel and Shuster, and of Kirby, are seeking to have the US Supreme Court hear their appeals of two Circuit Court decisions which rejected their attempts to regain the copyrights.  
 
Siegel and Shuster, the co-creators of the Superman series, originally signed away their rights to the character in 1938. Their heirs unsuccessfully sought to terminate DC Comic's copyrights to the work by issuing statutory notices of termination in 1997 and 2002. In 2013, the Ninth Circuit Court stripped Shuster's heirs of termination rights, a ruling that according to NWU ignores the Supreme Court's opinion in the landmark case NY Times v Tasini (2001), which ruled that termination rights are inalienable. Kirby's heirs sought to terminate Marvel’s copyrights to his artwork, a move which Marvel countered in 2010 by suing the Kirby family for declaratory relief that Kirby's work fell under the work for hire exception to the Copyright Act. The judge hearing the case ruled in favor of Marvel, and the ruling was affirmed by the 2nd Circuit Court of Appeals in 2013.
 
While the Supreme Court has not yet stated that the petition will be reviewed, indications are good. Marvel initially refused to respond to the petition, but was asked by the justices on May 14 to file a response. The petition has been distributed to the justices for conference on September 29. A ruling by the Supreme Court in favor of the heirs to Siegel, Shuster, and Kirby would have wide implications on the interpretation of the copyrights of independent contractors and creators.

 

For clarification on “all rights,” “termination of rights,” and “work for hire,” visit our Contract Glossary.

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