This indie designer is exposing her legal battle with Zara over allegedly stolen designs

Los Angeles-based clothing and accessories designer Tuesday Bassen is at odds with Zara over the alleged theft of her designs. Tuesday night, Bassen posted an excerpt of Zara’s response to a cease-and-desist notice her attorney sent the giant corporate fashion house alongside comparative images of the pins and patches in question.

Soon, the hashtag #SupportTuesdayBassen surfaced on social media with her followers tweeting at Zara and bombarding the fashion house’s Instagram account with hundreds of comments. But as others pointed out on Wednesday, this is hardly the first time Zara has been accused of blatantly ripping off young, lesser-known designers.

Get consent, kids.

No, I’m not talking about consent for like kissing and stuff, although you should always get consent for that. No, no, today I’m going to be talking about something different. Something along the lines of good ol’ copyright.

I’ve noticed that, in the Miraculous Ladybug fandom at least, comic dubbing is becoming very popular. I’m pretty sure at least a hundred (maybe more) of you follow me just because you saw one of my dubs at one time or another. I know there are others who have been doing it longer than me and some who are newer. Some of us are popular, some of us not so much. Some did it as a one-off, some do it regularly. Some people don’t even dub–they just take the comics and add music to them and put them on youtube.

Regardless of which categories you fall under, if you have or plan to make a dub of someone’s written or illustrated works, or make something that includes someone’s written or illustrated works (like an AMV w/ artwork) –whether it be in this fandom or another–this applies to you

So pay attention.

For the sake of conciseness, I will only be mentioning comics but this applies ANY works, original or fanmade, that do not belong to you. Written, illustrated, music…This includes fanmade covers of the Miraculous Ladybug theme too, btw.

ALWAYS GET PERMISSION BEFORE YOU USE SOMEONE ELSE’S WORK. ALWAYS. IT’S SO EASY. JUST ASK.

I don’t care if you are “shy” or “anxious” to ask. That’s not gonna fly in court. If you’re too shy to ask for permission then you’re definitely too shy for the attention you could potentially receive for you dub. Worst case scenario, the artist says no. Fine. Deal with it. Move on.

And, seriously: ASK BEFORE YOU BEGIN PRODUCTION. You don’t wanna get halfway into the process only to find out the creator isn’t cool with you doing it. Plus, you can kinda put them in an awkward position (like, crap, they’ve already put effort into this…how can I say no?) and that’s just rude to do. Don’t be that asshole.

Why do you need to get consent?

…I really should not have to answer this. But since we have such a problem with art theft, I will. But personally, I think it all comes down to NOT BEING A JACKASS.

1. You have absolutely no right to dub/use the comic.

That’s right. You have no right. None. It doesn’t matter if the comic is fanart, it is the intellectual property of the artist. I don’t care if you REALLY REALLY WANNA DO IT!!!!!1 I don’t care if you’re “just a kid”. Posting a dub video with the artwork without prior consent from the artist is art theft. The artist may consent afterwards…or they may not. Either way, the fact you used their work without their permission made it art theft. If you think you can get around this by not posting the comic panels and just an audio version of it - you stole their story line. Still theft. 

2. What about fair use?!

Do you people even know what that means? There are a number of reasons that people like to claim fair use but actually can’t. Your dub of a persons comic is not:

  • Criticism & Commentary – you’re not criticizing the work. You’re not commentating on it or using it to commentate on something else.
  • Parody – you’re certainly not making fun of it! (What is Parody? See: SNL sketches.)
  • News reporting – it’s not newsworthy and this is not a news segment.
  • Scholarship and Research – UNLESS YOU WERE MAKING THIS FOR A SCHOOL PROJECT, it’s not academic. Even if it WAS a school project, you still do not have the right to put it up on youtube. (Ex: I did something with footage of The Garfield Show once for class. Jim Davis himself has expressed compliments after viewing my work - but I still have to get legal permission from Paws Inc to use it anywhere outside of class.)

There are a few other fair uses as well but they’re irrelevant in this instance because there’s no way anyone could even attempt to claim them.

3. But I credited them!

Yeah? And? That’s not consent. 

4. It’s just fanart.

Yeah… but it’s their art. Maybe not their characters but THEIR ART.

And GOD HELP YOU if you actually do something w/o their consent using their copyrighted works.

5. They can sue you.

Yep. You read that right. If you use an artist’s artwork without their permission, they can take you to court. It doesn’t matter how you did it, how old you are, where you are: they can file a lawsuit and your ass could end up in court. Ask yourself: do you really want to go to court over a comic dub?

Will they? Eh. Maybe. Maybe not. Depends on the person. Do you really want to risk it though?

And if you think you’re exempt because you’re not American: I got news for you. Tumblr, vimeo, youtube, etc…their servers are in the USA. Unless I am mistaken, that potentially puts this in the USA‘s jurisdiction.

See why this is important?

I understand that you might think that dubs are harmless. And, yeah, they’re relatively insignificant. But the fact of the matter is, you need legal permission to use everything in your videos and that includes artwork. AND sound effects and music, for that matter, but that’s not what this is about.

This isn’t a hard concept. Just ask for permission. It covers your ass. I live and breathe TCOM and trust me, YOU GOTTA ALWAYS COVER YOUR ASS. But most importantly, it shows you respect the artist/creator not only as an artist but as another human being.

If they grant you consent to use their work: WOO! YOU’RE IN BUSINESS! GO TO TOWN! DUB THAT SHIT AND MAKE IT AWESOME. If they set any terms for of use (crediting requirements, no monetizing, etc) you MUST comply or it’s a violation of your agreement and they can take action against you.

If they say no, you better respect that shit.

And, if you’ve already decided to be THAT ASSHOLE and have posted someone else’s work without their express consent in any form: IF THE ARTIST COMES TO YOU AND TELLS YOU TO TAKE IT DOWN, TAKE IT DOWN. for fuck’s sake man

For the record: I always ask. You can check with anyone in the Miraculous Ladybug fandom whose works I have dubbed and they will confirm: I have always sought their permission. I have always agreed to and complied with any terms they set forth. AND I have license to use EVERYTHING you hear in my dubs–all the music, the sfx–and the consent of the VAs, which they gave me upon initially accepting the roles.

IN SUMMARY:

Ask for permission before you use someone’s stuff. Be respectful. Seriously, it’s not hard. Don’t be that asshole.

Commissioning and Copyrights

There’s a post that’s been floating around Tumblr and Twitter that has (understandably) upset a lot of artists:

The original post seems to have been deleted and it was posted anonymously, so I have no idea who this person is or what inspired them to write this vitriol, but it’s prompted some conversations on Twitter and Tumblr that I wanted to address.

Rude attitude towards artists aside, this is a serious misunderstanding of how commissioning and copyright works. Judging by some of the replies to this post, this seems to be a common misunderstanding: Commissioners do NOT automatically get all rights to the art that they’ve commissioned.

Artists automatically own the rights to any work they have created as soon as the work is created, without needing to file any kind of legal paperwork, unless part of the commission agreement states that the client/commissioner is granted rights. Many commissioners (and artists!) do not realize this. They assume whomever is paying for the creation of the work owns the copyright to the work. It is not the payment that transfers this ownership. The payment is simply for the creation of the work. Not for the rights to the work itself, unless explicitly stated and agreed upon. (It’s worth noting, I work in the US, I am not sure how copyright law differs in other countries so my statements here are framed in the context of US copyright law).

Those of you who do professional work-for-hire freelance work (or work full-time for a studio) probably noticed in most of the contracts you signed there are clauses stating the client/company owns the work you’ve created (either in part or in full). This is because without that clause, you, as the artist, would actually still own the rights to the work and the company would be unable to use the work they paid you to create.

This is one of the reasons it’s important to have a contract signed by both the artist and the client whenever you’re doing a job. I know that many people (and I have been guilty of this too) tend to be more casual about one-off commissions and don’t always have a contract involved in those sorts of transactions, but honestly, with attitudes like this out there, it’s probably a good idea. A contract should clearly lay out what the usage rights are once the work is completed and can avoid misunderstandings or legal grey area down the line. For something small like a commission, it also just gives you something easy to point to if you need to ask a former client to stop using a work they commissioned in a way that was not originally outlined in the contract.

Generally, because of the informal nature of personal (non-commercial) commissions such as one-off character commissions, pet portraits, etc, artists may be more casual about how the commissioned art is used, but it’s still important to check with the artist what specifically you are allowed to do with the art, as each artist may have different preferences. Some may be happy to grant full usage rights, others may allow redistribution rights (with or without credit) but not allow the work to be resold or edited. 

What this person above is doing, by editing out the artist’s signature, is technically illegal unless they have agreed-upon rights that allow them to edit the artist’s work (removing a signature is editing) and re-post it without credit. 

These laws exist not to make commissioners miserable or to try to snag free advertising or whatever else this commissioner seems to think. These laws exist to protect artists’ rights which are increasingly vulnerable due to the nature of image-sharing on the internet. 

Commissioners and artists, know your rights and make sure you understand them before money exchanges hands.

There’s a super helpful article here that goes into some of this in more detail that you may find useful: http://www.hongkiat.com/blog/design-contract-clauses/

Edit: Here’s another helpful article detailing what exactly “Work For Hire” is and how/when it grants rights to the commissioner/employer: http://www.americanbar.org/publications/tyl/topics/intellectual-property/copyrights_and_works_made_hire.html

The key points in this are that a written agreement is necessary for the work to be considered “work for hire” and for copyrights to be granted to the commissioner/employer.

*Disclaimer: I am not a lawyer and this post should not be considered professional legal advice, but merely useful information based on my personal experience working as an artist. If you have legal questions about a contract or the rights to your work or work you have commissioned, you should contact an attorney.

This artist launched an online store to sell designs allegedly ripped off by Zara

Angry about the trend of corporate fashion brands ripping off young indie designers? Then Adam J. Kurtz’s new online store is made for you. The Brooklyn designer and artist created an “Unauthorized Reproductions” store on Wednesday devoted exclusively to selling designs that were allegedly ripped off by Zara.

The store features the work of 12 indie artists whose pins and patches are suspiciously identical to ones that showed up in Zara’s 2016 summer catalog. Included among the artists is Tuesday Bassen, the popular underground designer whose legal battle with Zara went viral after she posted the company’s condescending response to her claims online.

The original designs are shown on the store page alongside the alleged Zara copies. And yeah, they are exactly the same.

2年くらい前の絵

最近セーラームーンやさくらちゃんのグッズを見かけるとまんまと買ってます

かわいいは大正義だ〜

Violating copyright for fun and profit

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 new

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 Instagram feed:

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.

You can actually buy the Law & Order coloring book; it’s included as part of my legit art book. But notice how this cover was carefully designed by the publisher not to stomp on anyone’s trademarks:

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 legal weight…

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 bullshit

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 Batman.


*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.

  • 2015:I don't know about you, but I'm feeling 22 (Taylor Swift™ No copyright infringement intended. Property of TAS LLC Management 2014©).
  • 2016:He didn't react (Fine Brothers™ No copyright infringement intended. Property of Fine Brothers Entertainment 2007©) to the news like I thought he would.
youtube

Where’s The Fair Use?  - Nostalgia Critic

Youtube’s automatic system to fight copyright claims and strikes being broken is known, but more people need to know about it. Hollywood ignores the law of Fair Use, throwing claims and strikes left and right and getting money out of doing so, even if the claims and strikes are legally proven to be false.

Things like this are so infuriating. Zara has blatantly stolen Tuesday Bassen’s designs and are claiming that she’s too small of an entity to matter 😡😡😡 Seriously?!

Just a reminder that Zara sucks ass and steals a lot from independent artists. To add insult to injury it’s pretty costly for artists to defend themselves. Registering a legal copyright doesn’t do much and even getting a lawyer to send a letter costs thousands. Share and be aware.

Watching the Fine-Bros corporation’s subscriber count plummet fills me with determination

Watch its drop live:

http://www.livecounts.x10host.com/?channel=Fine%20Brothers%20Entertainment

See the statistical damage in context
http://vidstatsx.com/TheFineBros/youtube-channel

see how they pissed everyone on the internet off
https://www.reddit.com/r/videos/comments/43490c/the_fine_bros_from_youtube_are_now_attempting_to/

see why this is such a big problem:
https://www.youtube.com/watch?v=h3_fRUHOAfE

see how their response video still doesn’t make what they are attempting any better:
https://www.youtube.com/watch?v=x0S-uKfUd-g

See a sassy magical cartoon fish slam them if legal issues aren’t your forte:
https://www.youtube.com/watch?v=No_Vti186Tk

How this relates to Undertale:
Basically, this proves Undyne’s speech really is true, individually, we, like the monsters, are weak and easily brushed off, like a droplet of water, but with our hearts beating together, we spread and swell and crash upon you like a mighty wave, eroding your castle, determined to act as one and STRIKE YOU DOWN!

Corporations may be powerful and have money to corrupt and get their way, but with enough upset citizens, a violent uprising will succeed. Just like how Undyne will lead the monsters and overthrow Toriel if the human has killed too many monsters. Its this that major corporations need to remember, “Memento Mori”, “remember that you must die”. No matter how much money or power you are, no matter how big your corporation is, your security is not foolproof, all it takes is a group of people, someone with a gun or a knife, and its over for you. its so easy to get pictures and info on people these days, and the positions in companies, its so easy to spread, before you know it you have thousands of people that will attack you physically or economically the second they see you. Theres a lot of disgruntled people out there, and no matter how good your lawyers are, how much determination you have, how much power you think you wield….. you can still die, and in this world……you don’t have any resets or save files………

You would be amazed how many NDA’s, Copyrights, lawsuit summons, DMCA takedown notices, Contracts, Super PAC paperwork, and Lobbyist funded bills a single sharp knife can cut through. 

inverse.com
Paramount Must Explain 'Star Trek' or Lose It
Both copyright law and fan theories are confusing. Now they're colliding at a court near you.

Paramount is currently in court, trying to stop the production of a fan-made crowdfunded Star Trek prequel film on the grounds it violates the studio’s ownership of the copyright.  Launched in 2014, the film Axanar covers the missions of the first Federation war ship and take place years during the childhood of James T. Kirk but well away from him.  The problem with all that is that it definitely shares a universe with every other Star Trek film and movie.  The question becomes whether or not Star Trek is the universe or what happens within it.

Ponder that for a second.

The reason this issue has come to the fore is that most fans don’t give a damn what the answer to that question actually is, which is why, over the course of three different Kickstarter campaigns, the Axanar team has raised over one million dollars, and is still seeking some finishing funds.

Enter the lawyers.  Obviously, they can claim to own Star Trek because they acquired the series from Lucille Ball’s Desilu Productions in the late 1960s.  Now they’ve been merged with CBS and that’s how we’re getting both a new TV series and a continuing film franchise.  But the Axanar team has a card up its sleeve.

The Paramount lawsuit claims that this infringes upon “thousands of copyrights” and the Axanar team has asked the simple question: “Which ones?”  Because Star Trek now exists over several different universes, time periods, and casts, it’s not so simple.  The universe is so spread out, it is almost impossible to define what Star Trek actually is.  To that end, the burden is on Paramount to explain what Star Trek is — in a legal sense.

As The Hollywood Reporter notes:

“The defendants also nod to new characters, sets and plots in Voyager and Deep Space Nine and the various films (including the upcoming series and film) to arrive at the argument that Paramount and CBS aren’t doing an adequate job recognizing the vast differences between the films and television episodes nor meeting minimum pleading standards.  Producers of the crowdfunded film argue they shouldn’t be left guessing about what they’ve infringed nor should they be required to sift through each movie and TV episode to determine the claims against them.”

Essentially, Paramount is going to have to bring in the entirety of Reddit’s r/fantheories to put pushpins and yarn conspiracy boards together, linking every separate universe of Gene Roddenberry’s empire.  And this is why, from a legal perspective, Disney’s decision to destroy the Star Wars extended universe was a masterstroke.  The lines there aren’t blurry, which means the studio can encourage fan-made tributes without freaking out about the nature of its ownership.

Fascinating.