Skip the Rage: Jessica Hische on Dealing with Ripoffs
Posted by Rebecca Blake on April 17, 2014
Lettering 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
The 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
In 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.
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
In 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.Previous Page Next Page
How to Start your Very Own Communication Design Business!
Enter your email address below to receive a FREE download of "Starting Your Own Communication Design Business" written by Lara Kisielewska.
By signing up you will receive our monthly newsletter and occasional e-mails about our advocacy work. You will have the option to opt out at any time.
Looking to keep up with industry trends and techniques?
Taking your creative career to the next level means you need to be up on a myriad of topics. And as good as your art school education may have been, chances are there are gaps in your education. The Guild’s professional monthly webinar series, Webinar Wednesdays, can help take you to the next level.
Members can join the live webinars for FREE - as part of your benefits of membership! Non-members can join the live webinars for $45.
Visit our webinar archive page, purchase the webinar of your choice for $35 and watch it any time that works for you.