A question I get asked a lot is, “How
come you haven’t gotten sued?” Another thing I see a lot of is
artists worrying about getting sued (for example, in relation to
comic companies cracking down on fan prints at conventions). I also
see a lot of terrible mash-ups whose makers by all rights *should* be
sued. So for all these reasons I thought I’d put together everything
I know on the subject.
Parodies and mash-ups are nothing
People have been re-appropriating
culture since the days of Mr. T, perhaps even longer. They’ve been
getting away with it because parody (using elements of a work to
comment on or satirize the work) is a legally recognized form of
protected speech, at least in the United States.
Not all mash-ups are parodies
Check out this ad I’ve seen in my
Is this.. funny? Trying to make some
point? BB-8 is like asteroid B612 because… they’re both round? If
you have nothing to say, what you’re making isn’t a parody. Here,
two things that have meaning have been mashed together in order to
create a new thing that somehow has less meaning than either of the
original two things.
All parodies are original
This may sound counter-intuitive. How
can something that uses existing images and iconography be original?
“Original” in a copyright sense refers to the uniqueness of an
idea. Are you combining existing things in a way that creates new
meaning? Meaning that is different from the intention of the original
thing? Congratulations, you have an original idea.
“Original work” also makes no
distinction between “hand-drawn” or “hand-written” and a
copy. An idea is either yours, or it isn’t. If it’s yours, you can
reproduce and sell it as many times as you want.
Copyright protects ideas,* Trademark
protects how ideas are packaged and sold
Copyright applies to the content,
trademark is for the wrapper. Sometimes these two things line up
evenly, and sometimes they don’t. I’ll use something I made as an
example: many years ago I adapted an episode of
“Law & Order” into coloring book format. I took copyrighted
material, and turned it into commentary by placing it in a new form
and context. Totally legit and legal!
However, if I were to put an official
“Law & Order” logo on the book and place it in stores, I’d be
running into trouble. Consumers could arguably be confusing my speech
(commentary on “Law & Order”) with the speech of Dick
Wolf/NBC/Universal (“Law & Order”). I would be
violating their trademark.
There isn’t a single dominant image.
There’s a Batman and a Care Bear, but no one would look at this and
think it was a Batman book or a Care Bear book.
A Cease & Desist carries no
It’s true! It’s not a document that
gets filed with any court. It’s the legal equivalent of your neighbor
knocking on your door telling you to turn the music down before they
call the cops.
… but anyone can send a Cease &
Desist at any time, over anything
This is also true. Your silly mash-up
could be 100% legally defensible and you could still get a C&D.
It’s up to you if you want to ignore it, or fight it, or follow it
(but I would totally recommend consulting a lawyer before you decide
which of those things to do).
If you do end up in
a courtroom, that’s when you can finally use Fair Use as an affirmative defense. Fair Use is not, I’m sorry to say, a forcefield that magically protects artists from lawsuits. Rather it’s a specific response to someone
accusing you of violating their copyright, i.e., “You copied me!”
“Yes I did, but it was a fair use [parody, commentary, etc.]”
Shepard Fairey famously biffed this when he pretended (lied to the
court) that he didn’t copy that AP photo for his Obama poster, when all he needed to say
was, “Heck yeah I used the photo, but I also changed its meaning.
It was a fair use.”
The “five changes” thing is
You may have heard something along the
lines of, “If you make five changes to an image, it’s a no longer a
copy.” It doesn’t matter how many changes are made, or whether
those changes are big or small. What matters is the transformative
effect of those changes. Do they change the purpose or function
of the original? The function of the original photo that
Fairey copied is informational: it depicts a person in a certain place,
at a certain time, doing a certain thing, for the purposes of news
reporting. One would not necessarily look at that original and think
“hope,” but that’s what Fairey did. And by adding text and changing colors, he made sure that
everyone else who looked at his image thought “hope” as well. He
added his own viewpoint and transformed the function of the image
from reporting to propaganda.
That’s really what this all comes down
to: don’t just regurgitate what you see, but put yourself into your
work. That’s true of all art, whether you’re painting a seascape or a
*A couple people have gotten mad about this statement. “But copyright explicitly does NOT protect ideas!” This is true, the ideas have to be in a fixed form (a “work”); you have to actually do something with your idea (otherwise there’d be a million, “Well, no, I didn’t write a book but I totally had the idea for Harry Potter” claims). If it wasn’t abundantly clear, this article is about ideas that have been turned into artworks.
The Adventures of Brisco County, Jr. with Bruce Campbell.
Suppose you just wrote Indiana Jones and the Last Crusade. What do you do…after? Apparently a weird, cult genre mashup series that lasts one memorable season. (Also, the mom from Gossip Girl is there.)
Happy birthday Radiophonic Workshop! Not the first specialist electronic music studio in the world, but one of the most innovative and certainly the most influential. Even if you’ve never heard of it, the sheer range of extraordinary sounds the Workshop inserted into the national musical unconscious over the four decades of its life is unarguable - from that Doctor Who theme to Quatermass and the Pit. Hundreds of radio and TV programmes and dozens of albums of special effects.
The Workshop got started in its Maida Vale home on this day in 1958, although its various engineers and artists were already working together and creating sounds for programmes using the simple tools of the day. Naturally enough, the Third Programme was critical to the early history of the workshop and the one of the earliest programmes to make use of its exotic, synthetic sounds was a fifty-minute ‘radiophonic poem’ by BBC radio drama producer Frederick Bradnum (that’s him in the bottom photo), broadcast in October of the previous year (earlier still was a Third Programme Beckett commission). In the pictures you’ll see Daphne Oram, Donald McWhinnie, Desmond Briscoe, Richard Bird and Frederick Bradnum. Click the pictures for the original, more detailed, captions.
Alice Huyler Ramsey, the first woman to drive across the US in 1909. The trip was designed as publicity for the Maxwell-Briscoe carmaker and covered 3,600 miles, only 152 miles of which were over paved roads.
What an amazing roster this truly was. So many heroes and legends, guys who could be cited as being mat masters and teachers. Some who would go on to headline WrestleMania. Others who’d help pave the way for the future.
Also, that weird time period when Jigsaw wrestled without a mask. :(