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Copyright Law

Guild Member Ed Shems Testifies on Copyrights and First Sale

Posted by Rebecca Blake on June 17, 2014

Guild member Ed Shems represented the Graphic Artists Guild, the Copyright Alliance, and concerns of individual artists at a hearing in front of House Judiciary Committee members on June 2. Shems spoke on the impact proposed changes to copyright law regarding the first sale doctrine could have on artists. The proposed changes would expand the doctrine of first sale, permitting licensed digital materials to be resold by the purchaser.

In the past, the doctrine of first sale has had little relevance to artists, who have been able to control the copyrights to their work through licensing agreements. The doctrine permitted the reselling of tangible materials, such as books or CDs, but had no impact on licensed creations. The proposed changes to the first sale doctrine would permit digital materials to be resold as if they were tangible goods. As Shems testified, "There is no such thing as a ‘used book’ in the digital world.... every digital book sold under the first sale doctrine would compete directly with my client's sales – this means my clients will have fewer sales, and fewer resources to devote to illustrate or design their works. As a result I would have fewer clients and we might see a decline in the industry in which I make my living."

Additionally, Shems noted that the proposed changes would make it difficult to police infringement of his artwork: "As a creative professional and small business owner, I am able to choose which clients I will work with. Under an extension of the first sale doctrine, where copies of my work could be digitally sold to others I don't know or work with, that right would be taken away from me." Finally, Shems pointed out that the expansion of the first sale doctrine to cover licensed-based transactions would force creators to raise their fees to cover all rights to their work, rather than negotiate limited rights tailored for each client's needs and budget, and would create a de facto work-for-hire arrangement.

Shems’ full remarks to House Judiciary members can be read here. Shems will also take part in the US Patent and Trademark Office (USPTO) roundtable on First Sale Doctrine on June 25 at Harvard University in Boston. The USPTO has scheduled a series of roundtables and discussions on copyright and intellectual property issues throughout the summer. The full schedule of talks has been posted on our website. The general public can attend the events in person or via webcast.

Below: Ed Shems, Guild Advocacy Chair Lisa Shaftel, and Sandra Aistars from the Copyright Alliance after testifying. Used with permission.

Ed Shems, Guild Advocacy Chair Lisa Shaftel, and Sandra Aistars from the Copyright Alliance.

Copyright Forums and Roundtables

Posted by Rebecca Blake on April 24, 2014

US Department of Commerce logoThe Copyright Alliance notified us that the Internet Policy Task Force (IPTF), a working group within the U.S. Department of Commerce, has scheduled a number of roundtables on copyright issues. In following up on their Green Paper on copyright issues in the digital economy, the IPTF is soliciting input from artists and creators on their concerns.

On May 8, the IPTF is holding a second public meeting in Berkely, California, on online piracy. This meeting will specifically solicit feedback on problems creators face in handling online piracy as a result of the lack of standardization in the DMCA (Digital Millenium Copyright Act) takedown process. The IPTF will be publicizing the agenda and webcast information for the meeting in early May.

Roundtables on a variety of copyright issues, including remixes, statutory damages, and first sale doctrine have been scheduled:
May 21: Vanderbilt University Law School, Nashville, TN
June 25: Harvard University Law School, Cambridge, MA
July 29: Los Angeles, CA (location to be determined)
July 30: Bancroft Hotel, Berkeley, CA

More information on the roundtables is available on the Department of Commerce's website. Interested participants can register online for in-person or webcast attendance.

Skip the Rage: Jessica Hische on Dealing with Ripoffs

Posted by Rebecca Blake on April 17, 2014

Jessica Hische logoLettering and illustration rockstar Jessica Hische is also the author of warm, witty treatises on working and thriving as a creator. Her most recent article deals with the thorny issue of ripoffs. A designer wrote about discovering imitators – some working for large campaigns for major companies – and asked Hische “…how you personally deal. Frankly, I'm flattered and simultaneously depressed at any given moment and try not to think about it.”

Hische’s counsel is her typical blend of humor and practical advice. In describing the typical sequence of outraged reaction followed by regret and a more formal communication with the infringer, she recommends skipping the rage. She also distinguishes between an individual who is copying an artists’ style versus a designer or agency actually reusing work without permission. In the former case, Hische points out that the imitator may be inexperienced, and she advises educating them about the inadvisability of copying someone else’s style.

In the case of a work being outright infringed, Hische recommends sending a stern letter to the artist or agency that produced the infringing work. However, she cautions that taking on a large company can be expensive and time consuming, citing Modern Dog’s recent successful case against Target, Disney and Jaya Apparel Group. She sums up by stating that her best advice is to register the copyright on your creations: “While you of course ‘own the copyright’ to the images you create unless you're transferring them to the client in a contract, it’s difficult to pursue copyright infringement cases without having filed for copyright of the images officially.”

Note: While original images are automatically copyrighted to their creators, registering the copyrights confers a extra degree of legal clout: it creates a public record of authorship, it’s required before an infringer can be taken to court, and it enables the creator to sue for damages and be awarded legal fees. For more information on copyrights, visit our article in our Resources page.

The issue of fan-copying is a topic Hische addressed in a much earlier article, “Inspiration vs. Imitation.” The article was directed towards aspiring artists  and fans who openly plagiarized Hiche’s work. In this article she makes a clear distinction between copying as a learning tool, versus passing off work which closely replicates another’s as original work. She advises new artists on how to move past simply imitating their role models: draw from many inspirations rather than a chosen few; dig into historical references; train your eye to spot differences and originality; and be aware that passing derivative work as original will  ruin your reputation amongst your peers and potential employers.

Copyright Office Announces New Fee Schedule for Online Registration

Posted by Rebecca Blake on March 26, 2014

Copyright Office logoThe Copyright Office has announced a new fee schedule for the online registration of works. Starting May 1st, standard online registrations will be raised from $35 to $55. However, the office is introducing a new streamlined option for single works by single authors, which have not been made for hire. (For a definition of Work for Hire, check our Contract Glossary.) The Single application process will only cost $35.

Upon registering their work, registrants will be asked a series of three questions which will determine whether they should use the Standard or the Single application process. Note that websites may not be registered with the streamlined option. Other categories of work which are excluded are: collective works, unpublished collections, units of publication, group registration options, databases, works by more than one author, and works with more than one owner.

Here’s the full text of the Copyright Office notice:

Copyright Office Announces New Fee Schedule; First Since 2009

The U.S. Copyright Office is announcing a new fee schedule covering registration, recordation, and related services; special services; Licensing Division services; and Freedom of Information Act (FOIA) services. These fees will take effect on May 1, 2014. The final rule establishing the new fee schedule was published in the Federal Register today and is available at www.copyright.gov/fedreg/2014/79fr15910.pdf.

This new fee schedule is the product of a multiyear process of studying current Copyright Office fees, evaluating the Office’s budget requirements, and considering public comments. While a number of fees, including the fee for standard registrations, have increased to permit the Office to more fully recoup its expenses, some fees have decreased and others remain the same. The Office has also instituted a separate, lower fee for single-author, single-work registration claims. For more information, go to http://www.copyright.gov/docs/newfees.

Guild Joins Organizations in Amicus Brief in Fine Art Appropriation Case

Posted by Rebecca Blake on January 30, 2014

Amicus brief Cariou v. PrinceIn mid-December, the Graphic Artists Guild joined other arts organizations (ASMP, Picture Archive Association of America, PACA, PPA, NPAA, Jeremy Sparig, APA, and ASJA) in filing an amicus brief in opposition to a brief filed by the Warhol Foundation in Patrick Cariou v. Richard Prince. Photographer Patrick Cariou sued fine artist Richard Prince for copyright infringment after Prince appropriated a number of Cariou’s photographs for a series of paintings. Prince duplicated the photographs from a published book of Cariou’s photos without seeking permission from Cariou, and minimally altered them. While the District Court found in favor of Cariou, the United States District Court of Appeals for the Second Circuit reversed much of that decision, withholding judgement of five of the paintings. The court found that the bulk of the paintings fall under fair use since they “manifest an entirely different aesthetic from Cariou’s photographs.”

The Warhol Foundation issued an amicus brief in which they argued in favor of the fair use finding, contending that the paintings are transformative in that they convey a different meaning or message than the original photographs. Additionally, the Foundation’s brief asks that the court consider the “broader art community” to be the reasonable observers of the paintings, to whom the transformative nature of the work would be apparent.

The amicus brief filed by the Guild and the other organizations disputes the Warlhol Foundation’s framing of fair use:

“The application of the “reasonable person” test for transformativeness, in the form advanced by Defendants and the Warhol Foundation in its amicus brief would permit the blanket appropriation of artistic creations without compensation to the authors and owners of the copyrights in those works. While appropriation is a long-known practice in the artistic community, the use of an artist’s underlying work in a different medium is no different than selling any intellectual property through a different channel of distribution. The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists.” 

The brief urges the court to reject the “reasonable person” standard proposed by the Warhol Foundation, and to find no fair use in this case:

“Defendants and the Warhol Foundation propose an application of the “reasonable person” standard that would not even require modification of the original photographs’ aesthetic in any way. Such a standard would permit appropriating artists to circumvent the available licensing systems, knowing that a standard that permits simple after-the-fact rationalization for appropriation as a “fair use” defense forecloses many less-endowed visual artists from fighting them in the courts... Photographers, and all creators of original work, should not be deprived of their work’s value on the basis of appropriation.“

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