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Copyright Law

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 Other categories of work which are excluded are: collective works, unpublished collections, units of publication, group registration options, databases, works by more than one author, and works with more than one owner.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.“

Fine Art Appropriation and the Culture of Taking

Posted by Rebecca Blake on January 29, 2014

Recently the science and science fiction blog io9 posted on article that hit a nerve with illustrators.  In “How a Science Fiction Book Cover Became a $5.7 Million Painting,” Charlie Jane Anders reported on the sale of artist Glenn Brown’s 1994 painting, “Ornamental Despair (Painting for Ian Curtis)”. What hit a nerve with illustrators is that the painting is a faithful copy of  scifi illustrator Charlie Foss’ cover art for Isaac Asimov’s book Stars Like Dust. In light of continuous highly publicized cases of fine artists appropriating and profiting from the work of illustrators and photographers (Richard Prince, Shephard Fairey, Jeff Koons, etc), the ire is warranted.

Images © Charlie Foss (left) and Glenn Brown (right)

Glenn Brown's painting (right) is unmistakeably derived from Charlie Foss' original illustration. Images © the artists.

However, as with any circumstance that inflames, it’s advisable to take a closer look at the facts of the case. This is exactly what artist Glendon Mellow did in his  article ”How Plagiarized Art Sells for Millions“ on the Scientific American blog “Symbiartic.” Mellow first summarizes the history of contemporary art from Modernism through the “Internetz”, tracing the practice of appropriating cultural imagery through iconic artists such as Robert Indiana and Andy Warhol. He then revisits Brown’s offending painting, pointing out that what is lost in the translation to web is an understanding of the difference in scale and detail between the painting and the original illustration.

Anders then issued a follow-up article, in which she clarified the details of the story: Brown had received permission from Foss before creating the painting, and didn’t see a single penny from the recent sale. Some comments on the article have pointed out that Brown could have credited the original illustrator in the painting title – many works are labeled “After…” in recognition of the original source. However, as Mellow points out, the current state of affairs, in which fine artists churn out mediocre work largely based on others’ original creations, is a reflection of the our culture of mash-ups and repinning, reposting, and reblogging, with no thought to crediting the original authors. As Mellow wrote, “Fine art culture is holding up a big expensive mirror at you and Internet culture right now.”

Brought to our attention by @ColleenDoran.

2013: Laying the Groundwork for Copyright Review

Posted by Rebecca Blake on January 23, 2014

Terry Hart of the Copyright AllianceIn A Look Back at Copyright Review in 2013, Terry Hart of the Copyright Alliance outlines the groundwork which could provide a basis for a fundamental review of US copyright law. The Copyright Act of 1976 is outdated – the last large amendment to the act was the Digital Millennium Copyright Act of 1998. In March of 2013, in a lecture given at Columbia University, Register of Copyrights Maria Pallante issued a call for a comprehensive overhaul of US copyright law. Shortly afterwards, she was invited to testify before the House Judiciary Committee on the topic.

The Committee, chaired by Rep. Bob Goodlatte, made copyright review a high priority, and scheduled numerous hearings throughout the year. The first covered an academic project, “The Copyright Principles Project”, which sought to find consensus among a number of legal educators on copyright review.  It was a disappointment for artists that not one creator was invited to testify. Following the theme, “Innovation in America,” the two subsequent hearings covered “The Role of Copyrights” and “The Role of Technology”. Copyright Alliance Executive Director Sandra Aistars testified at the first these hearings, arguing that copyright for creators is about empowerment, choice, and freedom.

A fourth hearing by the committee covered the “Role of Voluntary Agreements in the US Intellectual Property System” — private initiatives to address piracy and counterfeiting (but unfortunately not the role of search engines in facilitating piracy). At their final hearing on copyright issues, the committee addressed “The Rise of Innovative Business Models: Content Delivery Methods in the Digital Age.” This last hearing, according to the Alliance, “saw perhaps the most substantive discussion of copyright doctrine so far.”

Other government agencies were also very active in the copyright review arena. The Department of Commerce released “Copyright Policy, Creativity, and Innovation on the Digital Economy”, a paper produced jointly by both US Patent and Trademark Office (USPTO) and the National Telelcommunications and Information Administration which gave a substantive review of copyright law. The paper was three years in the making, and addressed the question of whether current copyright law is addressing the needs of creators in light of rapid technological advances in computing and networking. In October, the USPTO asked for input from stakeholders on key issues identified in the paper, such as statutory damages for secondary infringement and individual filesharers, and improving the notice and takedown system.

The Copyright Office also released two reports on copyright issues. The first recommended the establishment of a small claims court within the office. (The Guild testified before the Copyright Office on the small claims issue and is quoted in the report.) The second report recommended the establishment of a resale royalty on original works of fine art, as is currently done in 70+ countries worldwide. 2014 promises to continue to be an active year in copyright review; the Judiciary Committee has already scheduled three hearings on the topic in January.

Portrait of Terry Hart used with his permission.

New Avenue for Publicizing Logo Theft

Posted by Rebecca Blake on November 27, 2013

Logo Thief logoA newly-minted website is already having an impact. Logo Thief was conceived to display egregious examples of logo design infringement, and began publicizing examples in late November. Unlike many blogs which complain of copyright infringement, Logo Thief documents examples of logo infringement, providing links to the original creators’ websites and portfolios, as well as the posts by the infringing designers. The links are given in a list at the end of each article, forming a rough timeline of when the logo was original posted to the creator’s portfolio and when it appeared on the infringing website or materials. The LogoThief blog even shows overlaid examples of the original and infringing work — compelling evidence of outright copying.

In one case, a logo infringement showcased by Logo Thief came to a satisfying conclusion independently from the website. As reported in Steven Heller’s column, The Daily Heller, designer Felix Stockwell noticed that the new logo for one of his favorite eateries, Marie’s Cafe and Deli, was a direct ripoff of a logo created by Louise Fili, the renowned designer of many restaurant identities. Stockwell notified the restaurant’s owner, who was shocked and immediately removed the logo from their materials. As it turned out, the owner had purchased the logo for $25 from an offshore logo shop. Logo Thief reported on the positive development.

Other cases appearing on the LogoThief website have yet to be resolved in such a satisfying manner. In one case, a designer’s creation was copied from his LogoPond portfolio. Upon contacting the apparel company which reproduced a lightly altered version of his logo on their clothing, the company demanded proof of copyright ownership from the creator. Since then, the company modified the logo slightly, but the original structure is still clearly visible.

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