copyright laws

Copyright infringement - Mudd and Kohl’s.

By now you may have seen all the internet publicity around Tuesday Bassen’s and other independent artists’ works being ripped off by major fashion retailer, Zara. 

I have been dealing with a lot of copyright infringement over the past few years and it has been no fun at all. I have seen unauthorized copies of my work all over the place including on Amazon, Etsy, clip art sites, T-shirt vendors like Sunfrog and Teespring… and so far I have been successful in getting these images taken down fairly quickly.

A few months ago, a friend noticed this kid’s shirt at kohls.com 

The boston terrier images on the t-shirt are badly traced copies of my Boogie Doggie Language drawings. Small details like eyes and ears have been changed, bow ties and glasses have been added, and most of the images are flipped. (Examples below have been re-flipped to clarify the similarities)

According to my attorney, the legal team at Iconix (the parent company of Mudd) does not believe there is any copyright infringement. They are refusing to take any action or compensate me in any way without a lawsuit. If I want them to stop selling this t-shirt or to get any money back from their sales, I have to sue them.

Litigation may not be a big deal to a large company like Iconix/Mudd; but it would be ridiculously expensive for a solo artist like me. Costs could go up to $60K if the case goes all the way to trial.

I cannot claim statutory damages ($150K per infringing item) because my copyright registration was not completed within 3 months of when Doggie Language was first published. 

If I win the case, I will recoup revenue from Mudd’s sales and my attorney fees, but this may not be enough to cover all the other thousands of dollars worth of court fees including expert witness fees. I basically have to pay out of pocket if I want to sue. 

Many friends and supporters have suggested a GoFundMe campaign to raise money for a lawsuit. I am very touched by the offer but I have to say I feel uncomfortable about taking money from other people. 

I already had in mind a crowdfunding campaign for my Dogs of The World book project later this year or next year, and if I were to request donations now to cover legal fees, I feel that I would be overimposing on people by asking for money twice and I don’t feel good about this. I would rather that people donate to my creative projects than fight this stupid expensive battle to prove that the copied images are mine.

Also - I worry about not raising enough money or not achieving the resolution that all my contributors are hoping for. Taking money from other people = extra pressure. 

I have not yet decided what I am going to do; these are just some of the concerns I have right now.

For now, this is HOW YOU CAN HELP:

1. Please SHARE this information. Tell people about this bootleg t-shirt at Kohl’s and Mudd’s response, and spread awareness about the larger issue of fashion retailers stealing and profiting from indie artists and getting away with it. Use Facebook, Twitter, and other social media.

(my original tweet here and my facebook post here)

2. Boycott these companies. Write to these companies to let them know you will not buy from them. Pressure Kohl’s to sever their relationship with Mudd/Iconix.

Twitter - @kohls @muddstyle​ @iconix

https://www.iconixbrand.com/connect/


3. Buy directly from artists if you can. I am going to be making a similar Boston Terrier shirt available soon, for anyone who is interested.

4. If you are purchasing artwork online (like stock images, clip art etc), check the source carefully. I have seen copies of my artwork on sites like istockphoto and freepik and had to have them taken down.  If you are a vendor/designer who buys stock imagery from these sites, be aware that ANYONE can upload images to these licensing agencies/libraries and lie that the work is theirs. (yes, it sucks)


IF YOU ARE AN ARTIST or DESIGNER:

1. Learn from my mistakes. When you create new artwork, register your copyright within 90 days of publication.  You can do this online.

Without copyright registration you have no leverage in court, and an attorney is less likely to work on contingency. Here is an illustrated summary of how copyright registration protects you.

I did not know about the 90-day registration window and I don’t think many people do. If you registered within the 90 day period, and if your copyrights are violated, you can collect statutory damages in court ($150K per item)  regardless of whether the infringing party made any money from your work. If your copyright registration is too late (as mine was for Doggie Language), you can only recover their profits & your attorney’s fees - and this may or may not be enough to cover all other expensive court fees. If the infringing party can prove that they made no money from sales, then the artist gets nothing.

2. When you look to other artists’ works for inspiration (as we all do and this is normal), make sure that what you create is not a recognizable copy of what you are looking at. Tracing someone else’s work, changing colors or a few details here and there, or flipping the image 180 degrees is STILL plagiarism and copyright infringement. Another example is taking the “head” from someone’s drawing of a dog, and sticking it on a different body - this is STILL copyright infringement.

I want to say thank you again to everyone who is supporting me. There are times I find myself feeling depressed, insignificant, and powerless, and your passionate support really helps! Thank you for standing by me!

Also thank you to:

- Robynne Raye for her help and advice. Details about Robynne’s/Modern Dog’s copyright infringement case against Target and Disney HERE and HERE. They won!

- Megan Wilson for organizing this petition: https://www.change.org/p/mudd-stop-stealing-the-work-of-independent-artists  Please sign if you can.

- Lili

7/24/2016 UPDATE

THANK YOU TO EVERYONE for the signatures, reposts and retweets! There is power and justice with social media group effort: Kohl’s has removed the shirt from their website!!! We have yet to check if the shirt has been removed from physical stores. No response from Mudd/Iconix, but this is a big step!

Los Angeles Times
July 22, 2016

Who wants to see Lin-Manuel Miranda get tipsy and tell stories about Alexander Hamilton? Well now you can because the Broadway star is bringing the stories he couldn’t fit into the musical to “Drunk History.”

“Drunk History,” for the uninitiated, is a show in which a narrator recites a historical (and oftentimes educational) tale from the past while rip-roaring drunk. That story is later reenacted by famous actors and comedians.

We spoke with Derek Waters, creator, director and writer of “Drunk History,” at Comic-Con and he clued us in on the details.

“We have a ‘Hamilton’ episode and Lin-Manuel Miranda is drunk, telling the story of ‘Hamilton’ that’s something brand new that I’m really excited about.”

What was his preferred poison? “Lin drank whiskey,” Waters said.

For the “Hamilton” details Waters had a specific goal. “I said I want you to tell the stuff that you didn’t get to put in the musical. Stuff that you can’t fit into that show. And it’s more Hamilton and Burr’s duel. Different duels that weren’t talked about in the musical. I never want people to feel like they’re doing homework. I want them to feel like, ‘Wow I’m getting to talk about something I truly love and no one knows it more than me.’ And he knows ‘Hamilton’ really well.” (x)

(x, x)

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From the Ottawa Citizen:

On May 16, 2014, The Ottawa Citizen published a prominent commentary piece written by Blayne Haggart on our op-ed page that David Bowie was responsible for the removal from YouTube of astronaut Chris Hadfield’s video version of “Space Oddity which was viewed over 22 million times.

The commentary erroneously claimed that Mr. Bowie refused to renew a one-year licence previously granted to Commander Hadfield, ultimately forcing the video to be removed from worldwide distribution.

That was incorrect. Subsequent to running this piece, we were informed by Mr. Bowie of the following facts: In April of 2013, while Commander Hadfield was still in space, his people contacted Mr. Bowie to seek permission to make the video.

They were informed that while Mr. Bowie would give his full support to the use of the song by Commander Hadfield, Space Oddity was the only one of more than 300 songs he has written and recorded for which he did not own or control the copyright. Mr. Bowie offered to have his people call the publisher and convey his strong support, but he had no ability to personally dictate any of the terms of the licence or even require the publishers to issue one.

Immediately thereafter, Mr. Bowie made contact with the publisher of the composition expressing his wish that they allow Commander Hadfield the right to record and synchronize his recording to the video he was proposing to make. Mr. Bowie strongly suggested that the licence be immediately issued at no charge and that the creation of this video had his enthusiastic support.

One year later, the Citizen erroneously published that Mr. Bowie had granted the original licence but failed to renew the licence after one year. The commentary published by the Citizen also erroneously implied that Mr. Bowie was the reason the video had to be removed from YouTube and questioned how his actions could have “made the world a better place. The article caused an immediate reaction by thousands of fans worldwide, and this incorrect information was picked up by hundreds of other news sources around the world.

On behalf of Blayne Haggart and ourselves, we regret the error and we sincerely apologize to Mr. Bowie as well as all his fans around the world.

A cosmic salute to you, Canada.

Now, WATCH THE VIDEO IN ALL ITS MAGNIFICENCE.

youtube

Fuck youtube, I’m getting so tired of all this shit. A while back my music videos got taken down due to copyright laws and my old account even got BANNED, which I still haven’t gotten back (still have my backup account) and now this.

This shit screams disaster, not just for let’s players worldwide but for game companies who now won’t get free press from the let’s Players and mostly smaller game companies won’t get any recognition for their games through this! People like me go to youtube and watch peoples let’s plays to make sure a game is good, not the official gameplay where they show fuck all of how the game actually is. I’m so done with youtube.

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One of the major selling points of that wholly remarkable book: apart from its relative cheapness, and the fact it has the words “Don’t Panic" in large friendly letters on the cover, is its compendious and occasionally accurate glossary. 

Its simplistic style is partly explained by the fact that its editor, having to meet a publishing deadline, copied the information off the back of a packet of breakfast cereal, hastily embroidering it with a few footnotes in order to avoid prosecution under the incomprehensibly tortuous Galactic copyright laws.

It is interesting to note that a later and wilier editor sent the book backwards in time through a temporal warp, and then successfully sued the breakfast cereal company for infringement of the same laws.

HEY FRIENDS

Did you know that right now, as we speak, the government is trying to fast-track the TPP?

Well, let me back up for a second. Ever heard of the TPP? I didn’t, until five minutes ago. It’s the Trans-Pacific Partnership, which I thought was about free trade between the US and many Asian countries. But boy, was I wrong.

Right now the TPP negotiations are secret, but according to this leaked document, it deals with a lot more than just free trade. It includes policy that:

  • Requires criminal enforcement for technological measures beyond WIPO Internet Treaties, even when there is not copyright infringement (art. 5.9)
  • Impose a legal regime of ISP liability beyond the DMCA standards (art. 16.3)
  • Requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (art. 16.3.b.vi.A)
  • Requires identifying internet users for any ISP, going beyond U.S. case law (art. 16.3.b.xi)

Basically, this treaty is bad news. Really bad news. And as I said before, our government is trying to fast-track it–without our knowledge–right this very moment.

So what can you do? Sign this petition, and share it with everyone you know. Spread the word, and voice your discontent. Please help save the Internet as we know it!

Visit this website if you want a better understanding of the TPP and what it will do. For additional information, click here.

Paul’s Boutique Would Be Impossible Today

The death on Friday of Adam Yauch, best known as the Beastie Boys’ MCA, surely sent many of us back to old albums we may not have heard for a while. And anyone who threw on Paul’s Boutique, the Boys’ best album, was surely struck by the sense that they don’t make records like that anymore. That’s not just because tastes and styles have changed. The entire album is based on lavish sampling of other recordings. “Shake Your Rump,” which leads Slate’s #MCATracks playlist, features samples of 14 songs by 12 separate artists. In all, the album is thought to have as many as 300 total samples. The sampling gave Paul’s Boutique a sound that remains almost as distinctive today as it was when it was released in 1989.

Perhaps the main reason-and certainly the saddest reason-that it still sounds distinctive is that a rapidly shifting legal and economic landscape made it essentially impossible to repeat.

Related: 170 Beastie Boys References Explained

psychoprojectchaos  asked:

In my story my character is transported to a fantasy world and there she learns about magic. Coming from this world and being a gamer, she remarks that some of the magic is like Skyrim. But I said Skyr*m, do you think I'd get sued? Or is that okay?

Just using the term as a one off line would probably be De Minimis, though I’m not a Intellectual Property Rights attorney, so take this with a grain of salt or twenty.

There’s three parts to Intellectual Property Law; copyright, trademark, and patent. Copyright is the intellectual property law that protects what you create artistically. “I wrote/painted/created this piece of art, it is mine.” Trakemark protects what you sell, at market. “I’m selling this product, you don’t get to sell your own product while pretending to be me.” Patent is the protection of inventions and innovation. “I made this thing, it does something unique, it’s mine, you can’t take my work and leave me with nothing.” None of these work exactly that smoothly, but it’s worth keeping in mind.

Incidentally, censoring out a random vowel does nothing, legally. If you’re going to say “Skyrim,” then just say it. There’s two ways this can go, copyright or trademark.

It’s worth pointing out that, yes, you can be sued, even without naming your setting. Fair use is an “affirmative defense.” This is the legal equivalent of saying, “yes, I did what they’re accusing me of, but the law they’re using don’t apply because of this.”

In copyright, Fair Use is usually examined through four (five) tests. Is the work transformative? What is the nature of the original work? How much did you take? What effect does the alleged infringement on the market for the original work? And, sometimes, what is “the character” of your use?

The transformative test is basically asking if you’re simply lifting copyrighted material wholesale. For a work to be transformative, it needs to alter the copyrighted material in some way fundamentally alter the nature or context of it. The best example of this are reviews and critique, which will take a copyrighted work, and then discuss it in detail.

Historically, simply lifting characters or settings, and using them in your own material, without substantially reworking them is not transformative, and as a result is copyright infringement. So, if you land your character in The Land of Skyr!m, and do nothing to differentiate it from the Tamerilic province, that’s going to be infringement. If you have a vaguely viking themed setting, and your character from the outside world wanders in, looks at the architecture, mountains, or whatever, and says it “reminds them of Eastmarch in Skyrim,” that’s probably not going to be infringing.

The nature of the original work is tested to determine if there’s a compelling interest to protect it. This one’s actually fairly complex, but what it basically means is that copyright law is more protective of art than non-fiction.

The amount of the work taken tests to see, exactly that. Did you simply copy down the bulk of the copyrighted work. This gets a little more complex in that you can potentially take “the heart” of the work, in a fairly concise excerpt, and actually commit copyright infringement.

Amusingly enough, if Pride and Prejudice wasn’t in the public domain (meaning the copyright has expired) Pride and Prejudice and Zombies would be an excellent example of a situation where the work passes the transformative test, but completely fails the substantiality test, because it copies the entire text. Similarly, if I’m remembering correctly, most annotated texts face the same issue, even though they substantially expand the work’s context.

The effect of your work on the copyrighted work’s market is tested to determine if you’re actually harming the copyright. Either by not licensing the work, or by offering an alternative to the copyrighted work. If you’re playing a song at a commercial venue without paying the rightsholders, that’s infringement, because it should have been licensed, even if you’re not making money off of it. In cases where you’re providing an alternative to the original material, that’s still potentially infringing. The example above would be annotated works, where they function as an effective alternate option to reading the original material. A heavily cut down version of the text could also function as an alternative.

The example that comes to mind are film remixes, where an entire film is condensed into 10 to 15 minutes without fundamentally loosing the substance of the film. This is slightly different from taking the heart of the work, which, in theory, can be achieved by taking a single line or scene.

The final test, is the character of use, this is examining what you’re doing, in a larger sense. If you’re using excerpts of copyrighted material for educational purposes, then it is less likely you’ll be found infringing. Similarly, if you’re engaging in non-commercial use, such as fanfiction, then this is the test where it applies. It’s worth stressing, simply engaging in non-commercial use, does not automatically exempt you from copyright infringement.

So, that’s copyright. Simply using the name Skyrim, and saying, “yeah, this reminds me of Skyrim,” without actually attempting to copy or emulate the setting should be fine. Just like you can have character say they enjoyed watching Star Wars, or Star Trek. You can also, certainly, have characters talking about about copyrighted settings without an issue. The thing you can’t do is actually use those settings for your own work. (Again, remembering that fanfiction exists in a sort of legal limbo. Without a prior agreement from the rightsholders, it is technically infringement, but there’s no value to be had from litigating. Though that’s never stopped the Tolkien Estate from going after everyone that looked at them funny.)

Trademark also has its own fair use defense, and it operates under completely different rules. Again, it’s an affirmative defense, so it only comes into play after you’ve been sued, but it’s the same basic idea, “I did something that looks like infringement, but it’s not.” Also, fair warning, I’m a lot less versed in trademark law, so there’s probably going to be some errors here.

As mentioned above, Trademark law is primarily concerned with ensuring that brand confusion does not occur between two products. Fair use usually operates off the idea that you did use another company’s trademark, for the purposes of referencing their mark specifically.

That means you can’t sell products under that name, and you can’t claim to be endorsed by the trademark. You can still say something reminds your character of Skyrim, just like you can say they wanted McDonalds, a Coke, or any number of other consumer products. That’s not what Trademark is designed to prevent. What you can’t do is sell your book as Skyrim, or even as “a Skyrim story.” Not that it matters, but the part where you also wouldn’t be using the font from Skyrim’s logo is actually relevant to trademark fair use.

I’m actually conflating normative and traditional fair use in Trademark law. Strictly speaking, normative fair use is when you reference someone else’s mark, while traditional fair use is when you’re referencing your own product, and it could be mistaken for the registered trademark. So the tests are slightly different between these two situations.

Again, if you’re just having a character say that the world they’ve found themselves in reminds them of Skryim, that would be normative fair use. If you were trying to market your book under the name Skyrim, or the “a Skyrim story” mentioned above, then that would be traditional trademark infringement.

-Starke

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SOPA IS NOT GOING TO FUCK WITH FANART.

I REPEAT.
SOPA.  IS NOT.  GOING TO FUCK.  WITH FANART.
It was never GOING to.
Yes, it’s an awful law.  Yes, the language is very vague and could make for some crazy shit if it does pass.  Yes we should protest the shit out of it every time it rears its ugly head.
But everyone can stop losing their shit crying that they can’t draw fanart anymore, because it’s simply not true.

Fanart and fan-made material/merchandise has ALWAYS been a legal gray area, and to grossly oversimplify how exactly it works: as long as you’re not making a lot of money off of it, MOST companies will turn a blind eye.  A lot of companies even outright encourage fan-made stuff.

Even if you are making money, say, you have a table in the artist’s alley at a convention.  You are generally allowed to sell x amount of prints of something fan-related.  As long as you’re not in direct competition financially with the company, they tend to not care.

If you want to see a perfect example of what NOT to do with fan made material because you WILL get your ass handed to you?
http://artists-beware.livejournal.com/tag/artist-calgarycosplay
(May need to be a member of LJ to see it)
These people got DMCAs from a few different companies because they were mass-producing hoodies of trademarked characters for hundreds of dollars.

So in short: don’t get your panties in a bunch over fanart being ruined by SOPA.  It’s not happening.  However do keep protesting the shit out of it because it is an awful law and could do a lot of damage if it passes.

As artists, creators and fans of all shapes and sizes descend upon Comic-Con International in San Diego, CA this week, the principle of fair use will be there with them.

No, fair use is not the name of a new caped character, but it is a different kind of superhero to the fan fiction community. Fair use is a part of our nation’s copyright law that allows for the use of copyrighted materials for a limited and transformative purpose without permission. We know it is a tough story to tell, so the below infographic should help people understand just how important fair use is – from cookies, to cosplayers, to cocktail parties and more.

Share by rebloging here on tumblr or via ReCreate at www.recreatecoalition.org/day-life-fair-use-comic-con/