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Copyright Law

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.

Copyright Office Report Acknowledges Impact of Small Claims Issues with Individual Creators

Posted by Rebecca Blake on October 17, 2013

copyright office logoOn September 30th, the Copyright Office released their report on copyright small claims. The report documents “significant costs and other challenges of addressing [small] copyright  claims” and recommends the establishment of an alternative system of adjudication within the Office. The report acknowledges the need for a streamlined approach to smalls claims, but one which permits alleged infringers to vigorously defend themselves.

The report was the result of three notices of inquiry over a two-year study by the Copyright Office, in which the office requested information from the public on whether the current legal system hinders copyright owners from pursuing copyright claims of relatively small value (those of a several thousand dollars or less). The Office also held public hearings in November 2012, at which the Guild testified. The Guild submitted three comment letters to the Office, and included the results of a survey the Guild conducted based on the questions in the Copyright Office’s notice of inquiry. About 1,200 copyright holders responded to the survey.

The Copyright Office specifically thanked those who participated in the Office’s public call for feedback and noted that the small claims issue particularly impacts individual creators. The Guild is proud to have participated in this public process, and thanks the many individual artists who responded to the Copyright Office’s call for information. The Guild is very pleased that nearly all of our recommendations were supported by the Copyright Office and outlined in the Study Report.

The full report is available on the Copyright Office’s website.

CO Offers Electronic Registration for Single Copyright on Interim Basis

Posted by Rebecca Blake on July 05, 2013

US Copyright Office logoOn June 28th, the Copyright Office amended its regulations to offer a new electronic registration option, the Single Application Option. The intention is to provide a simplified application process for individual author claimants to register a single work (not made for hire) for the same price as the standard application, $35. The interim rule was implemented in response to the Office's January 2012 Notice ofInquiry (NOI), in which the Office asked whether special consideration should be provided to registration of single works, where the author is also the copyright holder and the work was not made for hire. The NOI recieved four comments, all strongly in favor of a simplified system for single author/single work registration. The proposed ruling was published in March 2012, and elicited 10 comments raising issues addressed in the iterim ruling.

The single author/single word registration option is offered as a simpler process to encourage greater copyright registration. The ruling limits the works which can be registered with this process: the registration is only offered electronically; only works created by single authors (no joint works); only works with a single claimant/author (no works made-for-hire or works in which copyright was transferred); only a single work (for example, only one illustration; no collections of works, websites, group registrations, etc.). Works which don't meet these criteria can be registered with the standard online registration process. Full information can be read in the Copyright Office's Interim final rule.

More details regarding the single author/single work registration will be forthcoming. The Copyright Office seeks public comment on the interim rule, and will modify the rule if such action is warranted. Public comment is due August 28th, and should be submitted as searchable PDF (not a PDF of a scanned document), Word document, Rich Text document, or ASCII text file format.

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