Orphan Works Revisited

In 2008 we covered the proposed Orphan Works Bill in two blog posts: "Orphan Works Bill" which covered what it is and how it will affect writers and artists, and "Orphan Works Bill Update", which presents a speculative case study on how it could affect a visual artist. The Bill was temporarily abandoned by Congress in 2008 to the relief of many authors and artists but has just reared its ugly head again. The Australian Society of Authors (ASA) has also been on the case and has just reported a summary of its findings to Australian literary creators. Here's some of what the ASA has had to say:

Wednesday evening, US District Court Judge Harold Baer ruled that the mass book digitisation program conducted by five major US universities in conjunction with Google is a fair use under US copyright law. Under that program, Google has converted millions of copyright-protected library books into machine-readable files, duplicating and distributing the digitised books to university libraries. The universities pooled the digitised books into an online database organised by the University of Michigan known as HathiTrust. We disagree with nearly every aspect of the court's ruling...

To read more about it – especially the section about books that were classified as "orphan works" when the author is still very much alive in Australia, check out The ASA Bulletin – October 2012. Seems like the entire idea is rather flawed and extremely suspect.

Plagiarism Too Close to Home

Came across an interesting story in The Sun Herald today – "Artist accused of stealing beauty" – which also appeared in The Canberra Times. It talks about a Melbourne pop artist Dennis Ropar who has "... been criticised for overstepping the line with one image from his Mexico series of portraits."


Apparently, "Ropar's Mexico #9 bears a remarkable resemble to Spring Muertos, a photograph of a make-up artist, Lisa Naeyaert, taken by the American photographer Gayla Partridge in November 2008."


A switched on friend of Ms Partridge alerted her after spotting the work online in what we believe is a blatant breach of copyright. We don't think people would be too hardpressed to see the similarities. The image is essentially the same except that the derivative work has a new background, and the placement of the model is different – she's not positioned from the waist up but rather from the chest up. There also appears to be some diffusion of the colour but these adjustments don't take away from the fact that the image is recognisable from the source material. It looks as if it has just been copied and pasted into the new artwork.


Which brings us to the issue of derivative works. The Australian Society of Authors (ASA) Comics Biz ezine (Volume 1, #5 May 2009) examined this subject in their Legal FAQ column. Here is the piece in question:

What are Derivative Works?

Creators understand the term “derivative work” to include a literary, musical or artistic work such as a translation, dramatisation, adaptation, film version, art reproduction, abridgement, condensation or any other work that is based on one or more pre-existing works but has been modified or transformed.

Two issues arise for creators of derivative works. First, you need to get permission from the owner of copyright in the original work before making a derivative version, if the original work is still in copyright. That is because the derivative is likely to be an adaptation or reproduction of the original work and therefore an infringement of copyright if permission is not obtained. Secondly, there is the question of whether the derivative work is itself protected by copyright.

To attract copyright protection, the derivative work must contain a sufficient degree of originality to constitute it as a new work of authorship in its own right. The central “idea” in the derivative work may be based on other source material, but the “expression” and execution of that idea must be markedly different through the mechanisms of characterisation, text, symbols, illustrations and sometimes even the medium. For example, West Side Story the stage and screen musical is a derivative work from William Shakespeare’s play Romeo and Juliet. The film Clueless is a derivative work of Jane Austen’s novel Emma. Andy Warhol’s pop art piece Campbell’s Soup Cans is a two-dimensional derivative work (comprising 32 canvases) based on the three dimensional branded grocery item – the Campbell’s soup can.

There is little case law on derivative works. However, Creative Commons (CC) Licences ... which are used predominantly in the online community, include a permission known as “NoDerivs”. These licences do not include permission to make derivative works, and doing so might be an infringement of copyright.

In our opinion, this puts this case into perspective.

BTW, despite arguing for the case of plagiarism, we completely disagree with the Associate Professor from the Sydney College of the Arts who has decreed that "the original is so cheesey I'm astounded anyone would want to plagiarise it...". We LOVE LOVE LOVE the original photo!

The Copyright Adventures of Colleen and Congress

The illustrious Colleen Doran has made a mark on Washington and her stance on the need to bring in hardline anti-piracy laws. In her usual concise articulate way she has presented a compelling picture of what happens to a creator when their work is digitised without permission by online pirates. Indeed, as you will read, copyright infringement of this calibre is not a victimless crime.

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

We read the piece when it first published online and when it had around eight comments; today it's up to 115! WOW! Here's the full article "The 'real' victims of online piracy". To use a Molly Meldrum catch phrase, "do yourself a favour" and go and read it!

Read and Heed - Children's Book Creators' and Graphic Novelists' Perspectives

Colleen Doran is constantly looking after the needs of comics creators and has given us two articles about how the Google Settlement might impact children's authors and illustrators and graphic novelists. Read them on her A Distant Soil blog: Google Behaving Badly: concerns for cartoonists and Children's Book Author Diana Kimpon clarifies Google Book deal on graphic novels. We owe Colleen and her contributors a big debt of gratitude for keeping us in the know. Thanks, C.

PhotoBucket Merchandise, a Passionate Plea and a Warning for Artists!

We're a bit sensitive at the moment about protecting our copyright so you may find several blogposts on this theme in the upcoming weeks.

In general we're okay if people post Black Mermaid Productions™ owned artwork or Jozef's commercial artwork sourced from his DeviantArt gallery to their blogs or websites for promotional purposes, provided they also put up the relevant artist attribution and copyright statement, that is:

Art by Jozef Szekeres

Source: www.blackmermaid.com OR www.blackmermaidproductions.blogspot.com OR

www.elf-fin.deviantart.com

© Black Mermaid Productions, [YEAR OF PUBLICATION] OR

© Jozef Szekeres, [YEAR OF PUBLICATION] .

However, if there is any doubt in your mind about the legalities of using artwork, then we do request you ask permission prior to posting it. You can you can do via this email address: permissions@blackmermaid.com.

We usually say yes to 95% of requests except where they are to use images for merchandising purposes or when it comes to usage of our Black Mermaid™ logo artwork.

Having said that, we've just come across a HUGE copyright problem on the PhotoBucket website.

Before we start, we must mention that our issue is not with PhotoBucket the entity but with the users who post copyright materials onto the website without credit and without permission, especially when there is a merchandising facility attached to each page.

So here's some background for you to put you in the picture so to speak.

Photobucket advertises itself as, "the premier site on the Internet for uploading, sharing, linking and finding photos, videos and graphics."

The ABOUT page also tells us that PhotoBucket has:

25 Million unique site visitors/month in the US, and over 46 Million unique site visitors/month worldwide

#1 most popular Photo site in the US

#3 most popular Entertainment/Multimedia site in the US

#8 most popular Entertainment/Multimedia site in the world

#31 in Top 50 Sites in the US

#41 top 100 Global Sites*

18th Largest Ad supported site in the US

When users sign up they have to agree with the Terms of Use, which has similar copyright policies to social networking sites such as FaceBook. The PhotoBucket Terms of Use clearly states:

8. Content/Activity Prohibited. You must use the Photobucket Services in a manner consistent with any and all applicable laws and regulations. The following are examples of the kind of Content that is illegal or prohibited to post on or through the Photobucket Services. Photobucket reserves the right to investigate and take appropriate legal action against anyone who, in Photobucket's sole discretion, violates this provision, including without limitation, removing the offending Content from the Photobucket Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Photobucket...

8.8 constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work...

8.15 violates the privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.

PhotoBucket also reinforces this in another clause:

15. Protecting Copyrights and Other Intellectual Property. Photobucket respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Photobucket has the right to terminate the Membership of infringers. If you believe your work has been copied and posted on or through the Photobucket Services in a way that constitutes copyright infringement, please follow the procedures set forth in the Photobucket Copyright and IP Policy.

Okay ... in theory this is a benevolent website service that gives users the capability of placing all their photos, images and videos in one place to share with family and friends. However, the problem arises in the fact that there is a merchandising functionality attached to each page, whereby ANY user (family, friend or stranger) can upload these photos and images onto products available from the online photo gifts and print store. These products include greeting cards, shirts, hoodies, mugs, calendars, jigsaw puzzles, computer and mobile/cell phone skins. And here's the rub ... if you are an artist whose artwork has been uploaded without your knowledge and permission by somebody in breach of the Terms of Use, then in theory lots of people could be ordering merchandise with YOUR images and WITHOUT you getting a single cent in royalties.

Jozef stumbled on this site by accident the other day and was appalled to discover that several pieces of his artwork has been uploaded onto various users' private albums. He wrote to PhotoBucket straight away who have guidelines in place for these cases in the form of a Copyright and Intellectual Property Policy. To PhotoBucket's credit, the images were removed within 24 hours and Jozef received an email acknowledgement from the PhotoBucket Copyright Agent.

In the interim, both of us went through the site and searched on key words from Elf~Fin and WaveDancers, as well as Jozef's name. We have since discovered approximately 25 more images that have been uploaded illegally and Jozef has written to PhotoBucket again asking for action.

Realistically, PhotoBucket doesn't have the ability to patrol its own website as it contains over 8 Billion images so the onus is on you the artist to do the footwork, or perhaps should we say, the fingerwork because your little hands may get very tired checking out every possible violation of your images on this website. And you will need to do this more than once ...

What is at risk is your ability to create income from your artwork. We understand that there are some readers/fans who love your work and collect your digital images. Many of these people just sign the Terms of Use Agreement without reading it or even understanding what copyright is, let alone the implications of doing what they're doing – that is, denying the artist their rightful income from their work.

What we're objecting to is not the actual act of positioning favourite pieces of artwork together in an online album, but the lack of copyright and artist attribution information and accompanying links to the original source material, as well as the potential loss of income that comes with releasing these images on merchandise where the copyright owner gets no royalty.

Working in the Arts is exceptionally difficult and artists need to be made of strong stuff to survive emotionally, mentally and physically. We do NOT have a regular paycheck coming in. We have to take on part-time jobs which takes us from the thing we love most (our creative projects) in order to pay the rent and put food on our tables. We often deny ourselves little necessities and luxuries just to make it through the week and pay our bills. Every dollar we receive through passive income helps us get our work out to you more quickly. It also helps us do that urgent car repair job which we haven't budgeted for and that could potentially save our life, allows us to see one movie every blue moon, buy a roll of soft toilet paper instead of a one-ply generic brand, or allows us to have lunch at a cafe or restaurant with friends with day jobs who we've been putting off for months because there is no spare cash in our wallet for a $20 meal. To arbitrarily make decisions about our artwork creates great stress for us in more ways than one. PLEASE RESPECT this idea and be careful about HOW you use our creative works.

And by the way, the photo you see accompanying this blog post was one of the ones we found on somebody's PhotoBucket album! We hope it will be removed tomorrow once Jozef's email request has been actioned.

Assumptions Leading to Online Copyright Breach [UPDATED: 4/12/09]

I have to say... I am constantly appalled at the presumptive attitude people have online that posted images on my online gallery are a free-for-all. Below is a recent example, and my response.

-----------------------------------------------

Hello Jozef,
my name is [NAME DELETED] and I am from [CITY/COUNTRY DELETED]. I am an astrologer, and since I have also DevianArt profile, I took your photo for ilustrating my post on my astrology site. I also put your link but what I need is written permission, so that's it... If it's not ok, just tell me.

I know that I should ask first, but sincerly, like a lot of other bloggers neither do I ask permission for a long time, not because I didn't want, but because I thought it is enough if i put a link. But now, l really want to respect copyrights, so I am sending emails to all authors which are linked with photos on my page...
hope to hearing from you,

---------------------------------------

Dear [NAME],

Thanks for contacting me.

Bloggers that post images without permissions, regardless if it is common practice or not are illegally breaking copyrights. Your usage without permissions is also unlawful, and the presumption that permission will be given is exactly that... presumptuous.

I make my artwork as part of my living and therefore usage of my artwork has a cost to it. I can and do post my own images online, but they are used thus only to showcase my work, their posting is not an open invitation for others to use illegally.

Also blog usage is usually to showcase an artists work, giving critical review (and often permission is openly granted for reviews), but you have decided to use my artwork to illustrate your astrology site as the header image. That is definitely not the usage I created this artwork for.

Beyond that inappropriate usage, this artwork of "The Queen of Sheba" is actually NOT my copyright but that of Aristocrat Technologies Australia (an international multimillion dollar poker machine company), and even has on the artwork.. "NOT FOR REPRODUCTION"... that means both online and in print, and that message is meant for persons like yourself. I have had a long legal history with this company to win the rights of usage of this artwork, which has been both financially and personally costly, and ONLY I have the usage rights, those usage rights are NOT transferable to you. So even if I wanted to give you the rights of usage for my artwork, I can NEVER give permissions for anyone else to use this artwork, as I do not have that right. (the rights I have mean only I can can use it).

So, thanks for contacting me. Please REMOVE my artwork immediately from your site header, and if in the future you wish to use my or anyone else's artwork... seek permission FIRST before you use the work illegally as you have done here. Please confirm in an email that you have done this.

If there is a problem for the removal, I will be happy to forward your permission request (after your already established illegal usage) to the lawyers at Aristocrat, whom I can say will be decidedly less polite then myself about the illegal usage of their copyright owned artwork.

Thank you.

Best,
Jozef Szekeres

MUST READ ARTICLE: Book Packagers Exploiting Comics Talents

Colleen Doran has just written a passion-fueled article that emanates from a genuine need to help naive freelancers fight back against the "unsavory practices" of some book packaging companies that are screwing over their talent. If you are going to read anything this year about protecting your rights then let it be this article - "Your Lives Will be a Lot Simple if Some of You Would Just Listen to Me Right Now". Colleen has long been an advocate and champion of creator rights and she doesn't hold back here on giving you solid advice, providing you with resources and challenging you to take responsibility for your professional lives. Black Mermaid Productions even get a mention, and she's right – we did utilise the services of the Volunteer Lawyers for the Arts and were assigned a brilliant attorney who saved a bundle of our original characters from extermination, whom we adore, are still in contact with and whom we visited in New York two years ago when we attended the New York ComicCon. In our capacity as the Australian Society of Authors (ASA) Comics/Graphic Novels Portfolio Holders, we are going to suggest that Colleen's article is mandatory reading for our members.

Arts Law Centre of Australia Legal Information and Sample Letters

The Arts Law Centre is the national community legal centre for the arts in Australia and has a veritable treasure trove of legal information and legal letter templates for creative people working in the Arts. As a starting point check out the Legal Information Page where you can access a Copyright Infringement Letter of Demand, Moral Rights Infringement Letter of Demand, Sample Confidentiality Agreement (also known as Non-Disclosure Agreements), and a whole list of other material from Defamation, Indigenous Legal Issues, Contracts, Wills, and Legal Issues for Bloggers. You can become a subscriber and get access to advice and information on law and the arts, receive the quarterly newsletter Art+law which examines creator issues, get discounts on publications and seminars, obtain ongoing legal advice and assistance, as well as access to legal resources such as mediation services – all for $99 for individual artists/students. 

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Jozef's Artwork Posted on a Blog Without Permission or Credit [UPDATED: 3/8/09]

One of my artworks has been posted uncredited on this blog: http://tresfabsweetie.blogspot.com/

I titled the cowboy character in pink that wears a "GAY" buckle – "Gay Ranger". I'm usually fine with people using my artwork online, providing they request permission. I also insist that the artwork is properly copyright credited and attributed to me with links to my website such as the example below:

© 2009 Jozef Szekeres
www.elf-fin.deviantart.com/

What is most concerning in this case is that the person who appropriated my art also removed my signature from my piece with dodgy Photoshop (see the pic on this blog post). Here is my original link of the artwork on Deviant Art so you can compare.

UPDATE: 4/08/09
The offending blogger has removed my artwork from his blog without applogy or comment.

Legal Self Defence for Comics Creators: Understanding Comics Contracts Seminars

It’s natural to be overjoyed when you’re offered a publishing contract for your comics project. It’s also natural to be devastated when you realise the contract you’ve signed has left you with little or no claim over the creative property you’ve laboured on for years. Knowledge is your first line of self-defence against those publishers who weigh contracts heavily in their favour and attempt to deny you basic and intrinsic creator rights. This seminar works towards preventing you from becoming a victim of exploitative deals by introducing you to legal publishing terms and helping you understand the implications of the major clauses in contracts. These include: intellectual property and copyright; licence and territory; advances and royalties, and subsidiary (ancillary) rights. This session will also provide you with negotiating tactics and strategies, and information on where to go for help if a dispute arises.  Remember… the responsibility for getting a fair deal starts with you!

Who Should Attend

Professional (published or self-published) and emerging (hobbyist) creators are welcome to stay after official Supanova closing time to attend.

 

About the Speakers 

Dr Jeremy Fisher (Sydney session)

Executive Director of the ASA since 2004, Jeremy Fisher has extensive experience in the Australian publishing industry. He worked as an editor and publishing manager for nearly 30 years before moving into rights management and advocacy roles. First published in 1974, he has written many works in a wide range of genres.

Jozef Szekeres (Perth session)

Illustrator, animator and comics artist Jozef Szekeres is the co-ASA Comics/Graphic Novels Portfolio Holder and a co-director of Black Mermaid Productions, a creative team working in comics. He has been published in Australia, the USA and in Europe and is a staunch defender of creator rights.

About the ASA

The Australian Society of Authors (which incorporates the Society of Book Illustrators [SOBI]) is the peak professional association for Australian literary creators and has over 3000 members. The Comics/Graphic Novels Portfolio was formed in mid 2007, to provide industry support to Australian artists and writers currently working in the comics medium and, in particular, the graphic novel format.

Seminar Information

Sydney

Date: Saturday 27 June 2009

Time: 6.00pm to 7.00pm

Venue: Supanova Seminar Room,The Dome, Sydney Olympic Park

Perth

Date: Saturday 4 July 2009

Time: 6.00 to 7.00pm

Venue: Supanova Seminar Room, Robinson Pavillion, Claremont Showgrounds, Perth 

Entry fee: There is no charge to attend the seminar. However, attendees must be exhibitors or hold a One Day Pass ($23.75 through Ticketek or $25.00 at the door) or a Supafan Weekend Pass ($39. 40 through Ticketek or $50.00 at the door). Ticketek Bookings – 132 849 or the website.

Further Information

Check the event guide on Supanova and the Comics/Graphic Novels Portfolio page on Australian Society of Authors.

Creative Commons Licences 2

Following on from our previous post on Creative Commons (CC) Licences, there are four types of permissions you need to know about:

(1) Attribution – Licensees can copy, distribute, display and perform the work in question, as well as alter or transform the original work into a derivative work, provided they acknowledge the work's original author/licensor and any credits or specific information that is stipulated in the agreement.

(2) Non-Commercial – Licensees can copy, distribute, display and perform the work, as well as make derivative works based on the source material, provided it is for non-commercial use only (they do not get paid).

(3) No Derivative Works – Licensees may copy, distribute, display and perform only verbatim copies of the work and cannot manipulate any component of it.

(4) ShareAlike – Licensees may distribute derivative works provided that the licence replicates the conditions in the original licence that governs the source material.

There are sixteen possible combinations of licences but only six regularly used licences in Australia that have been mixed and matched. They are:  Attribution, Attribution-ShareAlike, Attribution-NonCommercial, Attribution-NonCommercial-ShareAlike, Attribution-NoDerivativeWorks, and Attribution-NonCommercial-NoDerivativeWorks.

For more information, as well as licence templates go to Creative Commons,  Creative Commons International or Creative Commons Australia. 

Creative Commons Licences 1

We're just working on the latest edition of Comics Biz, the Australian Society of Authors Comics/Graphic Novels Portfolio ezine and we're including a section on Creative Commons (CC) Licences. From our understanding, these are licensing agreements that allow creators to waive certain copyright rights (that is, they “reserve ‘some’ rights” rather than “ reserve ‘all’ rights”). Essentially, CC Licences allow people to use your work in certain ways without payment to you. They can apply to books, comics, music, plays, films, artwork, photos, articles and blog and website content.

We actually didn't know terribly much about CC Licences but after doing some initial research and recognising that we're in an age where copyright is being challenged by the notion of "copyleft", we thought we should also educate our readers in the process. So we'll leave you some research bread crumbs along our way – we're not experts, just students and reporters. We'll bring you some more information soon on the four types of permissions used in CC Licences, as well as the six variations of licences. In the meantime here's a starter video for you.

When is a Copyright Holder Not a Copyright Holder?

When they blatantly steal a piece of artwork by putting their name, signature and/or copyright information on it!

I (Jozef) say "NO" to signature tags, tubes, letterhead and stationery, slight animation, frames, backgrounds, advertisements, menus etc. Almost once a week I get a request via DeviantArt from another DeviantArt member who seeks permission to use my artwork for the above uses. In each case I reply thanking them for their interest, but at this time, I'm not giving permission to use my art in this way. I also thank them for their respect and understanding of me and my work.

I put my artwork on display to showcase it, to present my ever growing body of (art) work, and my declaration of copyright ownership to that work. I do not put my art on display for it to be arbitrarily used by other parties with little or no policing, or more alarmingly... used without my permission.

Recently a DeviantArt artist decided to use my artwork as a signature tag for herself. This was done without my permission or knowledge. It was only because of the vigilance of another DeviantArt artist who alerted me of this usage that I found out about it. In response, I wrote to the offending DeviantArt artist, asking them to remove it immediately from their DA gallery and the Gaia Online RP.

The artist's response was:
"Um..Ok. I will remove it. Someone told me it was yours and I was going to tell and ask you but didn't get the chance because your dA page wouldn't load of my computer. But to tell you the true [sic] I don't see why I have to remove it from the rp (that isn't even mine) when I join your pic on PHOTOBUCKET therefore it is open for the public to use and it's not like I'm passing it for my own, please understand that."

Well there are many things wrong with this response. Firstly, you do need to contact me after the fact to get permission to use my artwork. If you do not have my permission before usage, assume you DO NOT HAVE IT. Contact me before you use it... and tell me what context you intend to use it. I can then make a decision as to whether I give permission or not. It is MY artwork, so I get to decide.

Secondly, there is more then one way to find me on the Internet. If you need to contact me, telling me a page won't load is not an excuse.

Thirdly, the pic placement on Photobucket is not approved, nor linked to its original owner, and therefore also a copyright infringement. It looks like there could be a whole lot of stolen or appropriated artwork on Photobucket. I don't see how one can assume that artwork collected in Photobucket is therefore copyright free and in public domain in any way. I'd advise against using artwork where you don't know the origin.

Fourthly, by posting on an original art gallery site like DeviantArt, you are presenting that the work is yours in copyright, or you have obtained or purchased copyright ownership of the image. And by putting your name (and only your name) to the image within the image, you are publicly claiming copyright to the work.

I apologise to Black Mermaid™ readers for a somewhat aggressive tone and stance on this, but really... I've had enough of the excuses. Don't use what isn't yours to use unless it's for promotional purposes of our products, blog or website.

And in case you're wondering, the Black Mermaid™ image above is the one that was used. The first one is how she appears on the "About BMP" page on our website, and the second one is as she appears on the offending artist (who we actually suspect could in fact be a teenager because her DeviantArt website has a collection of naive beginning art interlaced with professional pieces that appear to be so different in style and substance that they look as if they are the work of multiple artists). You may note that the second piece has a trident instead of what we call a bident. Don't let this amendment fool you – it is also ours. You see, when Bruce Love was part of the Black Mermaid Productions™ partnership, each of us was symbolically represented in the original image as one of the prongs of the trident. When Bruce left in 2003 and we revised our website from the BMP (Classic) to the BMP (New Wave) version, Jozef changed the trident to a bident. Both images were designed by Jozef and both of them are very much part of the Black Mermaid Productions™ website history.

On another note, we would like to thank all readers and artists who alert us to these copyright breaches. We really appreciate it.

And if you are interested in reading further about this case, Colleen Doran covers it from another angle (and with our original email responses to the copyright infringer) on her A Distant Soil blog from another angle in her Black Mermaid Swiped blog post. 

Google Class Action Settlement

Don't know how many Australians or people of other nationalities caught these display ads peppering their metropolitan newspapers (we spotted it in at least two locally, plus one in the Times magazine!) but all authors, publishers or holders of copyright material should be aware of the upcoming class action settlement regarding Google's scanning and use of books and other writings.

The ad in question was directed to "Persons Outside the United States" and says the following:

This settlement may affect you because it covers U.S. copyright interests in books published outside the United States. If you hold such an interest in a book or other material in a book, this settlement could bind you unless you timely opt out...

Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders ("Rightsholders") by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have agreed to a settlement. 

The ad also covers: What Does the Settlement Provides?, Who is Included?, What Material is Covered? (ie. in-copyright written works such as novels, textbooks, dissertations and other writings that were published or distributed in hard copy format on or before 5 January 2009) and What Should I Do? The closing date for objections or commentary on the settlement is 5 May 2009.

For complete information, including the Full Notice visit: http://www.googlebooksettlement.com. You can also call: 1 800 669 201 or write to: Google Book Search Settlement Administrator, c/o Rust Consulting, PO Box 9364, Minneapolis, MN 55440-9364 USA.

Tattoo Turf

It's time to talk of many things ... including the appropriation of artwork for tattoos. This is a topic that has touched us at Black Mermaid Productions™, and is a topic we will be revisiting from time to time in this blog. We have been approached over the years by many people seeking permission to use Jozef's artwork, as well as the Black Mermaid™ logo and website hostess as tattoos. We have declined all requests in regard to the corporate logo but have said that people could use some of Jozef's artwork for tattoos, provided they asked for permission. We even have a section on the FAQ page of our website, which says:

Is the Black Mermaid logo available for license or for any other use?

No. The Black Mermaid logo is copyright and trademark to BMP. She has become a strong identifiable part of our business brand for the last 15 years and has been affectionately embraced by our readers. In many publishing circles and networking groups we are in fact known as the "black mermaids" or the "black mermaid people". In accordance with this brand recognition we have never licensed or given permission to any individual or organisation to reproduce the logo as she appears in our corporate stationery and also in all her website incarnations for commercial or non-commercial use, including tattoos.

Do you design mermaid tattoos for people?

Time constraints do not allow Joef to design any specific tattoos for interested people. Tattoo design is also not part of our core business. However, we do get occasional requests from readers, seeking permission to use some of the published BMP characters as tattoos. In principle, we do give permission in those circumstances, provided that the person contacts us by email. If you have such a request, you can email us on: permissions@blackmermaid.com.

As of today, we have added a codicil to that statement. The FAQ now also reads:

However, the tattooist must give original art and copyright credit to the artist – Jozef Szekeres and/or Black Mermaid Productions – on any digital (online/electronic) or print promotional publication where a photo of the finished tattoo appears.

The reason we are becoming more protective about the use of tattoos involves a case that has been working itself out over the last twelve months, as well as the looming Orphan Works Bill (see previous blog post 1 and 2) that, despite being temporarily shelved, still has artists running scared. Jozef runs a Deviant Art (DA) page, which is very popular with his fans and displays many of his pieces on there including his mermaid art. In November 2007 one of his DA friends alerted him about the use of his "mermaid with doll" artwork on another artist's DA page, except that it was being exhibited in the form of a tattoo. There was no corresponding attribution to the original source material or artist; in fact, the tattooist's website address was emblazoned over the bottom of the image.

Jozef didn't quite know what the protocols were about tattooists using other people's artwork but he wrote to the man in question and identified himself as the original artist. The artist wrote back and said that:

.. in no way form or fashion I would take a fellow artist illustration and pose it as my own, a tattoo is a replica of an original, in the tattoo industry its [sic] rare when a artist states where the original artwork came from. Its [sic] not our responsibility to tell our clients not to take artwork that's "not" there's [sic] ...A  lot of tattoos that are done are done with artwork supplied by the customer ... They do the research, they fall in love with a particular design and they bring in the artwork... I feel that once your work is out in the web its [sic] pretty much @ the public's disposal ... whether we like it or not as the original creators.

He then concluded by saying that his work has been taken and used elsewhere and he knows the feeling and that it is a Catch 22 situation where "we are damned if we don't showcase our work and are damned if we do".

Jozef didn't know how to respond and let it sit for about six months. He then emailed the tattooist and provided his point of view on the arguments presented and then said that after considered thought he requested the artist to either remove the tattoo artwork from the DA website or to post the source artist against it and to link the artwork back to Jozef's DA page. He also added that he would then be happy to endorse the artwork and say that it was used with Jozef's permission.

The artist complied and placed the appropriate credit onto the DA page where the tattoo appeared. However, the relevant modification and Jozef's art credit have not been added to the image displayed on the tattoo artist's corporate website.

Which brings us to the question of whether or not the general public or a tattooist at large has the right to reproduce artwork on somebody's body without permission, an appropriate credit, or  any form of licensing fee? Furthermore, can the tattooist display the work as part of his/her repertoire and in the process implicitly mislead the viewer into thinking the he/she created the original artwork?

We discussed this scenario with Australian author Neal Drinnan the other day at a nice dinner. Neal came up with the recommendation that if an artist had a collection of images popular with tattoo artists then perhaps the bundle could be licensed out to them through the appropriate tattooist's association or guild or through some sort of collection agency. This, in fact, could be a topic for VizCopy , the Visual Arts Copyright Collection Agency, to investigate at least from the Australian end – we don't know how things would fare in the USA or other countries. This kind of thing would be difficult to patrol unless the tattoo artist worked to a covenant not to reproduce any artwork unless their customer brings them verification that the piece they want is in public domain or they have permission from the original artist.

In December 2008 we featured artist Judith Howell's mermaid artwork in our Mermaid Treasures 11 post. Judith makes a very strong statement on her website in regard to Tattoos and Copyright. She says:

Tattoo artists make several hundreds of dollars in the application of a design, while the artists receive only $2 or $3 for the sale of the greeting card [from which the art was sourced by the tattooist and the customer] after costs. So I, and other artists feel this is a bit unfair for the use of heartfelt imagery that will be enjoyed for the rest of your life. Especially as the tattoo artist has made some $200+ and then "resells" an image (which isn't his), therefore earning him more money. 

She has a point.

We don't have the answer, but we are asking the questions. This topic is one that needs exploring and we will be interested in your commentary and discussion. It certainly created emotional discomfort amongst the artists we've talked to. We may also pose it to the VizCopy people, as well as the legal officer at the Australian Society of Authors (which incorporates the Society of Book Illustrators).