“First Expressed in Nature”: Science Illustrator Pieter Folkens Raises Copyright Concerns
Posted by Rebecca Blake on May 24, 2017
Science illustrator Pieter Folkens came to our attention when we put out a call for a visual artist with experience in the entertainment industry. Not only is he a renowned marine mammal artist, Folkens has also created animatronics models used in films such as “Free Willy” and “Star Trek VI: The Voyage Home”. In April, Folkens represented visual artists with the Copyright Alliance at "Beyond the Red Carpet,” an event which showcased the creatives working behind the scenes in the film industry. The Alliance interviewed Folkens for their "Five Questions” interview series with individual creators.
“Five Questions with Science Illustrator Pieter Folkens” covers his early fascination with marine mammals, triggered by the discovery of fossilized shark teeth during a third-grade field trip, and shortly thereafter, excavating a 13.5 million year old sperm whale skull. That experience eventually led to a satisfying career documenting whales, dolphins, porpoises, and other marine life in scientific illustration and sculpture. As Folkens put it, “The creative process is an exercise in discovery. The enjoyment comes in two forms—initially learning new things followed by sharing them with others.”
However, it's the Alliance's probing of Folkens' experience with copyright infringment which is particularly illuminating. Folkens was one of the first science illustrators to focus on marine mammals, and his high-quality illustration has often been copied – his work has been infringed up to a dozen times a year (that he knows of). His method of dealing with the infringement is to send a passive notification, followed by an invoice for the use, and an attorney's letter. This sequence of steps permits Folkens to gauge the infringer's response and anticipate what steps he'll need to take. He strongly advises creators to “learn copyright law,’ recommending that they stay abreast of recent case law.
It's clear he's followed his own advice in his response to the final question, on what he would change about copyright law. Folkens cites concerns with the merger doctrine and scenes à faire doctrine, two principles most visual artists are unaware of. (Put very simplistically, the merger doctrine states that when an idea and the expression of that idea are so closely tied together that they’re inseparable, then the expression can’t be copyrighted since ideas are not copyrightable. The scenes à faire doctrine states that elements of a creative work may not be copyrightable if the genre of the work dictates them – think of folklore, stock story lines, etc.) Folkens’ concern is that these doctrines are unfairly applied to works of visual arts, citing a comprehensive law review article by attorney Michael D. Murray.
In response to our query, Folkens went into greater detail:
“The issue is developing wrongly in the courts under the notion of “first expressed in nature” that says any depiction of an animal is not protectable because whatever an animal looks like or does was “first expressed in nature” and therefore not a copyrightable idea. (Taken to its extreme, Ansel Adams’ “Moon Over Half Dome” would not be a copyrightable subject because Half Dome is a rock that was first expressed in nature, and same goes for the moon.) It sounds absurd, but it has been a successful defense in several cases in the Ninth Circuit, even when the copying of the original was proven by the plaintiffs. The problem arises from the two step "reductive analysis” employed by the court that essentially removes all elements of expression in the first step (copyrightablity of the subject), keeping the second step (copying of protected elements) out of consideration and away from the trier of fact. I'm taking up that battle in the Ninth Circuit this fall.”
NEA Granted a Reprieve; Arts Advocates Gear Up for the Longer Fight
Posted by Rebecca Blake on May 12, 2017
Arts advocates were appalled when the budget proposed by the Trump transition team called for eliminating the National Endowment for the Arts, along with steep cuts to other cultural and social programs. On April 30th, Congressional leaders came to a bipartisan agreement to fund the government through September. The House Appropriations Committee FY 2017 Omnibus Summary lists a full $150 million each to the NEA and to the National Endowment for the Humanities, an increase of $2 million. In an email to the Los Angeles Times, an NEA spokesperson wrote that the funding increase matched a request made by the agency in February 2016.
While the news is a welcome reprieve, arts advocates are not breathing easy – the administration has proposed defunding the NEA entirely in 2018. Americans for the Arts has orchestrated a comprehensive campaign: they've been conducting an online petition through their Action Center, their Arts Mobilization Center publishes updates on federal funding for the arts, and they’ve conducted a print ad campaign, “The Arts Put America to Work,” which highlights the 4.8 million Americans employed in the arts.
That last statistic that is supported by data. In April, the NEA released the results of a study conducted with the Bureau of Economic Analysis. The study showed that total arts and cultural industries in the United States employ 4,802,813 individuals at a compensation of $355 billion. Of that amount, core arts and cultural industries (“originators of ideas and content associated with the creation of arts and culture”) employ 950,997, at a compensation of $68 billion. The study results are posted online with an interactive map which permits viewers to see the economic contribution of the arts state-by-state.
Below: Clicking onto each state on the interactive map on the NASAA website pulls up data for that state.
Urban Outfitters Loses Appeal of Copyright Infringement Case, to the Tune of $530,000
Posted by Rebecca Blake on April 07, 2017
Urban Outfitters lost its appeal of a district court jury decision that found the company guilty of willful infringement, and has been ordered to pay $530,000. A small Los Angeles fabric supplier to the apparel industry, Unicolors, successfully sued Urban Outfitters for copyright infringement in district court. Urban Outfitters appealed the decision, and on April 4, the Ninth Circuit Court upheld the district court’s ruling. The court ruled that Urban Outfitters had willfully infringed of one of Unicolors’ copyrighted fabric designs. The court published the ruling, a step the Kali Hays described in WWD as unusual and indicative of the court’s intention that lower courts look to the ruling for guidance in similar cases.
At issue is a palm frond design which was originally created by Milk Print, LLC. Unicolors bought the intellectual property rights to the pattern, which they then modified slightly for printing on bolts of cloth by changing the size and color palette. The final design was registered with the Copyright Office. (Unicolors is aggressive in protecting its copyrights, having registered thousands of patterns and designs.) In 2010, Urban Outfitters developed a dress which used a textile with a that textile design. Unicolors noticed, and sent the company a cease-and-desist letter, followed by the lawsuit.
During the original trial, Unicolors provided evidence showing that Urban Outfitters maintains a library of thousands of fabric swatches, collected from vintage goods and some purchased from design studios, including Milk Print. The samples are used by Urban’s designers for “inspiration” upon creating new fashions. Unicolors argued that Urban’s failure to check on the copyright status of the swatches used by its designers showed that the company acted with “with reckless disregard for the possibility that the fabric it sampled was protected by copyright, and such conduct is sufficient evidence of willful infringement…”.
For its part, Urban argued that they had no knowledge that they were infringing, and that it’s unreasonable to expect the company to “exhaustively investigate whether any particular fabric design is protected by a copyright registration.” The court dismissed this argument: “Regardless of how difficult it may be to determine whether particular designs have been registered with the Copyright Office, a party may act recklessly by refusing, as a matter of policy, to even investigate or attempt to determine whether particular designs are subject to copyright protections.”
Intellectual property law firm Knobbe Martens covered the case in an article on their legal blog. They caution companies using existing designs: “The best practice would be to use only those works where either the author is known and permission has been received or it is clear that the work is not protected by copyright.”
The court decision can be downloaded from the Fashion Law Institute website.
Photo: public domain.
Doubleday Solicits Free Labor on Bestselling Author’s Book Cover
Posted by Rebecca Blake on March 21, 2017
Doubleday’s current book cover contest has hit the usual nerves in the design and illustration communities. The publisher issued a design contest for the book cover design of best-selling author Dan Brown’s newest creation, Origin. Doubleday states that the winning design will only be featured on a limited edition run, which will not be sold. This may explain the limited awards offered: publicity on the Doubleday website and social media platforms for the six finalists and winner, and 24 copies of the limited edition run for the winner. Despite the limited publication of the artwork, professional designers have dismissed the contest as promoting work on speculation.
One pithy response was from designer Jessica Helfand in her article on AIGA’s DesignObserver blog, “Design as Competition as Bake-Off.” Helfand describes how, throughout her career, she has been approached by professionals from all walks of life who have asked her advice on the cover design for their books. Helfand cheerfully gives her advice gratis; no tangible work exchanges hands, the conversations are relatively short and stimulating, and she considers her guidance an “act of stewardship.” She contrasts that exchange with Doubleday’s contest, made all the more stinging by the paltry award offered (which Helfand describes as “the presumed parasitic attachment to Brown’s epic social media following”) and net worth of author Dan Brown (estimated at $140 million – surely the author could cough up some sort of prize money).
A follow-up article on Fast Company by Meg Miller reports that in an email to Helfand, Doubleday clarified that were the limited edition to be sold, the publisher agrees that the designer should be paid. That response does little to assuage concerns with the crowdsourced contest model. For one thing, it normalizes the concept of work on speculation for young designers and illustrators. (Miller points out that the contest news release, published exclusively on Entertainment Weekly, seems to be targeted to students and non-professionals.) Secondly, the terms of the contest include a depressingly familiar rights grab: Doubleday claims perpetual and irrevocable worldwide rights to the copyrights and moral rights for every single entry.
The Graphic Artists Guild is unequivocally opposed to contests that require the execution of newly-created speculative work, and that require entrants to transfer all rights to their work. Refer to our “Suggested Guidelines for Art Competitions and Contests” for more information on how to gauge the advisability of entering a contest.
Below: the template supplied by the publisher begs your free work.
Adobe Design Achievement Awards Student Competition is Open
Posted by Rebecca Blake on March 15, 2017
The annual Adobe Design Achievement Awards global student competition is again open. Students 18 years and older, and registered (or recent graduates from) accredited institutions of higher education, are encouraged to submit their existing student work. Students can enter up to three unique projects in the broad categories of Fine Arts, Commercial, and Social Impact. The breadth of subcategories covers the range of disciplines studied by visual arts students, from photography, illustration, and package and graphic design, to animation/motion design and video editing and production, to web, app, and game design. This year, students working in virtual or augmented reality, 360-degree technology, and other new media will be considered for an “Excellence in New Media” Special Designation.
As in previous years, all entrants will receive a subscription to 99U career tips, will have their entries reviewed by the international panel of judges, and can choose to be considered for a mentorship with a creative professional, coordinated through ADAA partner ico-D. The full complement of prizes supports the ADAA’s mission of “Launching Student Careers,” and includes participation in Adobe Bootcamps, meetings with industry leaders, creative residencies, and subscriptions to Creative Cloud.
There is no charge for entering the competition, and submissions are accepted through June 12th. Students who submit work by May 2nd will have their work considered for early bird semifinalist. Entries can be viewed in real time on the ADAA website as they are uploaded. Students who want to see what their peers are entering can visit the “Entries” page and filter by category, region, country, school, and (once judging begins) status.
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