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!

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

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. 

ASA's Comics Biz Launched Today

Comics Biz: The Australian Society of Authors Comics/ Graphic Novels Portfolio Ezine was launched today. Available exclusively to members of the portfolio, the ezine (edited by yours truly – the Black Mermaid Productions™ team of Jozef and Julie who are also the portfolio holders for this special interest group), will be released on the last Thursday of each month. 

We were running out of space in the ASA Newsletter to provide members with the material they were requesting so we thought this might be a good way to go. Last year we talked to comics creators around Australia and asked them what their over-riding business concern was – the universal answer was marketing. We've, therefore, given the ezine a marketing slant. Each issue will feature a lead article, a mini profile on a comics creator, marketing FAQ, legal FAQ, recommended marketing resources, and must read online articles. Additional bulletins containing time sensitive information will be emailed out to portfolio members in between the regular editions of the ezine.

Click here if you want to read more about the ASA Comics/Graphic Novels Portfolio and its activities and services. Click here if you want to become an ASA member. 

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).

Orphan Works Bill Art Registry Solution

Kudos to ConceptArt.org founders for creating a solution to keeping the profiteers at bay if the Orphan Works Bill is introduced in the USA. (For more info about the OWB check out our previous post 1 & 2).

Although Congress is supposedly dumping the Intellectual Property (IP) Subcommittee on Judiciary Panel responsible for pushing for the Bill, artists are not out of danger yet. In an email sent to members on 2 January 2009, Jason Handley, ConceptArt.org Founding Director, said:

Artists having to be in searchable registries is potential problem number one. I believe this will be left to the private companies based on my research into who is supporting this horrible bill and what businesses are opening preparing for it. I went and checked the domain registry to search to see if people were buying domains (registermyart.com, artregistry.com etc...etc...) and everyone I serched for was gone. This was the red flag that began the real push to solve this assault on artist rights. The corporate sharks are already preparing to feed it seems.

... My guess is the art registries will launch as soon as the law passes or shortly thereafter.

... ConceptArt.Org has created a search system for locating art and artists, essentially cutting off the paid registry industry before they can even get off the ground. Click the images and find the original thread. Click the artist name and contact them directly. This also keeps these readying companies from acting as middlemen, between the searcher and the artist who they wish to hire. There is no room for that in our business.

The service is free so it might be a good idea to add your images to this database and/or other online galleries such as DeviantArt.com where BMP Director and artist Jozef digitally displays the majority of his artwork. Don't forget to watermark your pieces and put your signature and year of rendering onto them.

Thanks to artist Matt Elder for providing info on this initiative.

Contract Watch 1 – DC and Dave Sim

This is a great opportunity to read over a 2005 DC contract offered to Dave Sim of Cerebus fame for a contribution to an anthology. We strongly advocate that education on creator rights is fundamental if you want to be a working professional. The base of the matter – at least for us – is that if you are going to sign a contract such as this or any other, it is imperative that you understand the fine print and what the implications are in the near and distant future. Operate from the point of view of the informed, not the naive or lazy. Ultimately, it is about taking responsibility. And by the way, we think Dave Sim's requests and notes are quite reasonable. And while you are checking out this most excellent website, make an electronic pit stop at the original Creator's Bill of Rights page. We read about this in a comics press in the early 90s, well before the Internet became as big as it is now. We cut the article out and put it in our files. That article was shown to all the workshop participants we had in the interim – the ideas behind it are as relevant now as they were when the original team of comic book stalwarts put it together in 1988. Thanks to Colleen Doran for drawing our attention to the contract.

Orphan Works Bill Update

We've been keeping tabs on the whole issue of the US Orphan Works Bill through the comics creator who has her finger permanently of the pulse – Ms Colleen Doran. 

Colleen reports in her Distant Soil blog that there is good news on the horizon – Congress is about to abolish the Intellectual Property (IP) Subcommittee on Judiciary Panel – but not to get too excited about it, as the Orphan Works Bill could become the scylla and charybdis of American politics. 

House Judiciary Committee Chairman Conyers will abolish the Subcommittee on Courts, the Internet, and Intellectual Property in the new Congress and instead keep intellectual property issues at the full committee level ... Hot topics like overhauling the U.S. patent system; ending a long-standing music royalty exemption for AM and FM radio and changing a portion of copyright law that deals with musical tracks, writings, images, videos or other content whose owners cannot be easily identified drew ample attention from the high-tech and entertainment industries.

The reason we've taken an interest in this is because of the potential spill-over to Australian artists if this Bill is passed. Here is a typical case study of the implications, affecting no other than Black Mermaid Productions™ artist himself, Jozef Szekeres.

A few months ago Jozef was commissioned to provide some artwork for Sleazeball 2008. The organisers wanted to release a 16-piece limited edition trading card set under the 'Villain's Lair" theme, which focused on the iconic artwork of Glen Hanson. Mr Hansen, who was the advertised and promoted celebrity artist for the event, was to provide five characters for the cards. Jozef was asked to provide 11 further characters and to render them according to Glen Hanson's distinct style. Jozef made it clear from the first meeting that the card set would need to be credited properly with the appropriate signatures and copyright information, so as not to cause confusion in the marketplace about who had painted what character. This was duly reflected in the contract.

After the card set was released, Jozef noticed that the identifying information was not on it for either artist. When he queried the organisers they claimed that the artwork had not been checked internally and the artists' credits had been forgotten. However, all the appropriate attributions had been made on the rogue's gallery poster of the entire cast of characters which had been released at the same time and therefore, at least from their point of view, it was not a problem. Jozef was given two tickets to an event as compensation. 

These trading cards are now in general circulation and Jozef's fears have become real. Firstly, when he has talked to people who had a card set and identified himself as the artist for his specific pieces, most of them asked him if he was Glenn Hanson. Secondly (and here we must project into the future a bit), long after the Sleaze Ball 2008 information is taken off the Mardi Gras website and long after the organisers have moved on, in all likelihood people will assume that Jozef's art is in fact Glenn Hanson's and will either attribute it incorrectly or will have nowhere to start tracking the identity of the real artist for those specific eleven character pieces. If these cards were to surface in the US some time down the track and somebody wanted to use the artwork under the Orphan Work Bill, then they could do some preliminary searches and then if unsuccessful in the first instance, use the artwork without permission. Furthermore, if it is published in any form where it is presumed to be Glenn Hanson's work (and Glen Hanson is not there to tell them otherwise) then the artwork could be credited to the wrong artist for years and years to come.

This is all speculative we know, but these are also very plausible scenarios. The cards are in print forever (or at least until the last set remains on earth) but the artist and the people or archives who/which would tell us otherwise, could be long gone. We don't think it is unreasonable for an artist – any artist (and we use this term to include musicians, writers, sculptors and so on) – to protect their artistic legacy.

It is our understanding that under the Orphan Work Bills if someone searches for the copyright holder (usually the artist) and cannot find them and they can prove that they actually did a basic search, then the artwork is up for grabs for them to use as they like when they like. In the case of these trading cards, because the art does not carry any identifying marks or signatures to point people in the direction of the artist (Jozef), this is quite a likely outcome.

So if you are an artist then use those signatures, watermarks, copyright and trademark information liberally so there are electronic and print published pointers and pathways to you now and in the future. And furthermore ... you may also want to embed a clause in any upcoming contracts that basically gets the commissioner to have an added interest in being responsible about complying about attribution so there are no accidental slip ups – if the artwork is released without proper credit then the commissioner will need to compensate you financially for their lack of attention to detail.

And if you are a commissioner and not an artist then try to look at it from an artists' point of view – they have a moral entitlement to be credited and paid for their art. 

Resale Royalties for Visual Artists

We just asked Jeremy Fisher, Executive Director of the Australian Society of Authors, whether this applies to comic book artists and he replied, "Not yet.  But if the original artwork was sold separately, as book illustrators do through galleries, yes it would". We'll keep you posted on this but in the meantime we recommend you support this initiative by signing the petition, or writing to the relevant ministers and government departments.

Orphan Works Bill

We've been following the issue of the proposed US Orphan Works Bill  through a number of topical websites and trying to understand how it will affect visual artists including comics artists working both digitally and in print. Neither of us are lawyers and neither of us are political animals and we have a difficult time wrapping our minds around some of these policies, but here is a summary of what we have gleaned from our readings:

1. What are orphan works? Orphan works are defined on Wikipedia as a copyrighted work where it is difficult or impossible to contact the copyright holder.
2. What is the Orphan Works Bill? This is proposed US legislation that will essentially allow individuals or organisations to arbitrarily use a work deemed to be an orphan work. The so-called copyright infringer will need to demonstrate that they have undertaken the minimum requirements for tracing the copyright holder and, if unsuccessful, will still be able to utilise the work without restriction. In turn they will supposedly pay 'reasonable compensation' commensurate with the use of the work somewhere down the track if and when the copyright holder discovers the breach. (We are unsure of whether that compensation is lodged with an agency that 'holds' it on behalf of the copyright holder, or indeed the compensation is only paid when the copyright holder challenges the infringer.)
3. What are the implications for artists? The legislation recommends that a Database of Pictorial, Graphic and Sculptural Works be set up (these registries will need to follow guidelines set up by the government but may in fact be private commercial ventures.) The original creator of these visual works will need to register the copyright of all their art pieces in these databases. The copyright owners will thus need to pay a fee for the privilege of protecting their own work, which may end up being an expensive proposition. Those creators whose works have been used without permission can sue the infringer but, as mentioned above, may not receive substantive compensation.

Furthermore, the "Orphan Works: Legislation by Misdirection" article tells us that:

The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about "reasonably diligent searches," injunctive relief and statutory damages. 

Meanwhile the secret of the trick has been simple: redefine an orphaned work as "a work by an unlocatable author." 

The new definition would permit any person to infringe any work by any artist at any time for any reason – no matter how commercial – so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his own property. It defines the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

This is a new definition of copyright law.

Although the OWB is a US based initiative, many other countries including Australia will feel the impact of the legislation if it is passed through Senate. Colleen Doran talks about it on her blog:

And what are foreign creators supposed to do about all this? How do they handle this law which does not square with the copyright law in their own countries? Will they be forced to use our online registries to protect their works since whatever they do can be posted on the internet in minutes and, potentially, orphaned? Well, yeah. How's that fair to an artist in Sri Lanka? Or South Africa? How's that fair to older and indigent artists who have no computer access or simply can't afford to enter these databases?

Moreover, the MisDirection article cited above also tells us that:

On March 13, the Register of Copyrights testified before the House IP Subcommitte. On page 1 of her testimony she said:

"Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries."

You can be it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Australia has a number of licensing agencies including Public Lending Right (PLR), Educational Lending Right (ELR), Copyright Agency Limited (CAL), as well as Visual Arts Copyright Collecting Agency (VISCOPY) – the latter of which deals with artistic works. It will be interesting to see what VISCOPY's POV is on this matter and we will be watching its website closely. However, we will try to keep you informed with other relevant articles and information so we can learn together. Here are some important ones to watch (thanks to Colleen Doran and Matt Elder for the leads).

"Orphan Works' Copyright Law Dies Quiet Death' (30/09/08)– Wired

"Orphan Works and Comic Book Death" – Newsarama 

"Orphan Works Emergency" (28/10/08) – Colleen Doran: A Distant Soil (hell, check out this entire 'must read' blog for comics creators).

The entire Illustrators Partnership Orphan Works Blog.

 And here is an excellent audio summary on YouTube: