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Web Nuggets: Fair use or Theft?

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  1.  (340.1)
    One of the folks that I follow on Flickr is Lane Hartwell, an aspiring photojournalist who works here in San Francisco. It's been interesting, following her burgeoning career, until recently, when she locked off over 4000 of her images, due to this:

    http://laughingsquid.com/bloggers-divided-over-lane-hartwell-photography-issue/

    Short story - she wants attribution for an image she took, and various factions have raised their heads in voice for one side or another. This fella has one of the better arguments:
    http://lawgeek.typepad.com/lawgeek/2007/12/copyright-fair.html

    Seems like a fairly good topic to bring up to this creative bunch - what opinions on this do you foster?
  2.  (340.2)
    It looks like a "fair use' argument would have made a lot more sense if the video had been a parody of her work: it's actually a parody of something completely different. Even in a universe in which it was possible to parody a Disney film you'd have a hard time explaining why your parody included the complete text of The Difference Engine, or had a copyrighted soundtrack by a band that has nothing to do with Disney films.
  3.  (340.3)
    I think that Jason Schultz pretty much says it all to be honest.

    *Disclaimer - My book and all other writings are published under a Creative Commons license.
  4.  (340.4)
    Here's another well done commentary:
    http://www.plagiarismtoday.com/2007/12/18/analysis-on-the-lane-hartwell-bubble-controversy/

    Not to fan a flame under my own thread, but I was kinda wondering what y'all think of the whole Iron Clad Copyright vs. Creative Commons vs. "It's posted on the interwebs, then it belongs to everybody (and by everybody I mean me)" arguments. As any of us being in varying degrees of Starving Artistitude, how do we let our babies go out into the cold public (ostensibly without the protection of a Big Publisher to back us) without having our stuff nicked? Case in point, Lane Hartwell putting her professional material on a second-party web site, using the All-Powerful Web 2.0 as another venue of publication and promotion of her art, and her work gets nicked and posted, not only without restitution, but without even attribution.

    On the flipside of artistic expression, I've heard mentions of bloggers getting chunks of their writings lifted from their blogs and posted elsewhere, without attribution, and in some cases, victims of outright plagiarism. I am, of course, just using the Lane Hartwell thing as a hot and timely example.

    Where is the line between "that's a cool pic, I'm gonna use it for my desktop" and "that's a cool pic, I'm gonna use it as the cover of my book/comic/cd"....
  5.  (340.5)
    Interesting case.
    Also notable that the idea raised here of 'transformative works' is being pushed by a fandom advocacy group called OTW, who claim that fan writing is transformative, therefore the owners of the original intellectual property have no say over their use of it. Scalzi has an even-handed discussion of this here (NB, very long comments!).

    In short, the issue of who has control of a IP continues to be one of the busiest debates of the times. I know Warren has strong views on this...
  6.  (340.6)
    On the flipside of artistic expression, I've heard mentions of bloggers getting chunks of their writings lifted from their blogs and posted elsewhere, without attribution, and in some cases, victims of outright plagiarism.


    Happened to me - stuff I wrote turned up in a national newspaper. Never did get restitution/recognition, but then I don't have any lawyers.

    I think that part of the CC thing is to make explicit the 'it's on the internet, therefore it's mine' to those works where the creator is happy for that to happen. Personally I think that copyright laws are about right (although I *am* behind the UK Gowers report which loosens a few things up without hurting creators), but likewise I also think that there can be alternate systems if the *creator* wishes it.

    E.g. I write a script and post it on a forum. Someone takes it and turns it into a film without my permission and I am fully within my rights to give them a slap. If I *want* someone to make it into a film but have neither the time, talent or funding, then I can put it under a CC license. Depending on the license this doesn't mean that you lose control of it (further e.g. I've made £5,000+ in letting people commercially exploit my CC stuff).
    So the CC license removes all doubt.

    Unfortunately, because of the way a lot of the info on the internet historically got on there, people still take the "It's online, so it's mine" attitude and then get surprised when they get slapped - on the flipside, there are a fair few people who want to tie their stuff up on the internet with loads of legal stuff in order to make sure no-one 'steals' it.

    So the balance is between what is best for the creators, coupled with what is best for culture - which is where I think that current copyright strikes a pretty reasonable balance.

    Apologies if I whitter, or am incomprehensible, but I need more than four hours of sleep...
  7.  (340.7)
    As any of us being in varying degrees of Starving Artistitude, how do we let our babies go out into the cold public (ostensibly without the protection of a Big Publisher to back us) without having our stuff nicked?


    We don't, because that's not possible. Anything desirable that's posted on the web is going to get hotlinked, copied, modified and reproduced, often without attribution, and sometimes for profit. You just have to decide for yourself what you think is unacceptable and be prepared to do something about those when you see them. No legislation has ever changed human nature, and it's human nature that's the cause.

    I don't post my work in (to me) printable resolution, and on my own sites my larger images are sometimes "protected" by no-rightclick Javascript. That's easy enough to defeat, and the only reason I do it is so that users who have never thought about the issues will stop, realize that I'd rather they didn't, and maybe think about it for once.

    But I've found even the web resolution versions of my art have been printed and sold by other people, and those are the ones I choose to always do something about. For anyone who's not a corporation I've found that this is actually more difficult under the DMCA.

    On the flipside of artistic expression, I've heard mentions of bloggers getting chunks of their writings lifted from their blogs and posted elsewhere, without attribution, and in some cases, victims of outright plagiarism.


    This is by far usually done by scraper sites that assemble huge amounts of content to bring in web searchers so that they'll click on ads - I've seen this happen recently in sites that are trying to unload malware on you, too.
  8.  (340.8)
    It's funny, Cat, that you use "IP" (intellectual property), as this, among other things, I think, is the problem. The arguments that I've been reading from the Fair Use/"information wants to be free" all seem to stem from a mindset that Artistic Expression is exactly the same as, say, computer code or the blueprints for a new bicycle. And it's not. I fully endorse an open policy for brand new sciences and such, but there is a great vast gulf between someone clutching the cure for cancer to their bosom and claiming intellectual property rights, and someone who has, say, just posted the first five issues of their webcomic online, only to see it nicked and appropriated for, say, beer advertisements, with the creator getting fuckall for it, let alone attribution. Artistic Expression is not Intellectual Property. It is Artistic Expression, and apparently it's gonna need its own set of nomenclature in order to discuss it.

    I'm not barking down your snorkel about IP, Cat, you just pointed it out, and I forgot that one of the things that irritates me about this whole issue is the use of intellectual property legalese being duct taped onto arguments for pilfering an artist's work.

    Speaking of OTW, Caitlin R Kiernan has Large Words to say of that particular brand of malarkey - I stand by her on that one:
    http://greygirlbeast.livejournal.com/413551.html
    http://greygirlbeast.livejournal.com/414280.html
    http://greygirlbeast.livejournal.com/414676.html

    Although I'm not sure Warren would approve, 'cause she likes to use Farscape slang in everyday conversation.... :)
  9.  (340.9)
    @KitsuneCaligari

    My snorkel is bark-free, though thanks for the consideration! I wasn't so much claiming a tie between Artistic Expression versus IP - IANAL and wouldn't dream of saying how closely (if at all) the two are tied in law. I was just pointing out how a lot of debate about both is going on now, that it is important to a lot of people (some with the big money) and that AE and IP are both getting blurry.
  10.  (340.10)
    I'm not barking down your snorkel about IP, Cat, you just pointed it out, and I forgot that one of the things that irritates me about this whole issue is the use of intellectual property legalese being duct taped onto arguments for pilfering an artist's work.


    Its really not being duct tapped.

    IP rights for patent and copyright have both developed and changed in roughly the same historical frame, and the issue of moral rights, that is legal rights in artistic intent, is actually a legal one in most countries other then the US (all the US has is VARA laws).

    Its fair to argue that you wish there as a different language, but, for example I have done copyright and trademark work but certainly not patent (your examples of "actual IP" are patent work). The artists I have worked for were most certainly acting under the auspice of IP law both legally and historically.

    The current idea that copyright is not a legal issue is a child of current cultural movements ( harking back to pre-Gutenberg traditions of course) and is the newer critter. And the rights you call artistic expression, are in fact, derived from the rights demanded by early book publishers. Your right to choose - legally - how your work is distributed and used are rooted entirely in that legalese. You could, in the absence, of those laws ask for people to simply be ethical, but I would not hold my breath on that one. The rights of artistic expression to simply be, that is your right to create and express your ideas as art, are first amendment issues in the states, and related free expression law elsewhere. No part of that body of law protects your right to control what happens after you create.

    The issue your encountering is many "fair use" groups (and their are many goods ones I know, but also many entitled gimme gimme ones) is that they feel the internet's ease of reproduction means they have a right to an artists work. A joke I make to artists friends this is the "your an artist - give me your shoes" attitude expressed by the internet. Artists are expected to give and give, often by people who are salaried tech industry...

    As for transformative use - Its a minefield of uncertain law, the case law is messy and can be summed up as "it is when the court your in says it is."
  11.  (340.11)
    It looks like a "fair use' argument would have made a lot more sense if the video had been a parody of her work: it's actually a parody of something completely different. Even in a universe in which it was possible to parody a Disney film you'd have a hard time explaining why your parody included the complete text of The Difference Engine, or had a copyrighted soundtrack by a band that has nothing to do with Disney films


    This is why transformative use is a mess, it knocks the certainty out from under fair use. Your entirely right as to the way things should be and usually are, but it is entirely possible for your difference engine example to be declared transformative if a court saw fit. Not likely, but possible.

    The funny thing is that fanfic writer group Cat mentioned is nearly the best possible example of works that will never be protected as fair use under any current legal doctrine, since its the clearest example of standard derivative work possible.
    •  
      CommentAuthorUnsub
    • CommentTimeDec 18th 2007
     (340.12)
    I'm having a time out until I can learn some manners.
    I don't like the Gestapo tactics used by the DMCA goons and any sympathy I had for their position has been shredded by their actions and the way they manipulate my
    (Canada)government. I see it as very simple and really just a natural extension of being a gentleman. If you use something of someones that makes you money then give them a fair share. If you download something for your own personal use I don't see how that is any different than taking something out of the library.
    It seems that with every technological advance we get another new way to pay. First we had TV payed by eds ,then cable we have to pay for. Radio to sat radio.
    I love seeing the music industry get a taste of their own medicine after the way they screwed us for years. When they switched from casset to CD's which cost much less for them to produce they doubles the price. Maybe this will mean the end to corporate crap like the Spice girls and we will get artists who are interested in making art not just money?
  13.  (340.13)
    Every example dealing with copyright is not the music industry.

    We were not talking MP3s or large corporations. This is a thread that starts with a single artist being impacted, and moves to the general rights, and limitations there in, of artists to protect their work and difficulty inherent online in that. While, yes, its the same law, its amazingly awkward to respond with a declaration of "those music industry goons deserve what they get" to any discussion of the issue.

    It reads very much like a standard of since the music industry is unethical then feel free to apply their perceived wrongs to any artists anywhere, and take what you want accordingly.

    Maybe this will mean the end to corporate crap like the Spice girls and we will get artists who are interested in making art not just money?


    And honestly, that sort of comment drives me nuts. Not every artists is rich for crying....allot of them depend on their work to do the same things anyone does with their chosen living. Any use of their work they do not see payment for is one more use that could of made ends meet. Being a working artist is damn hard and taring them with the brush of anti-corporate IP rhetoric as if they are one in the same chills my blood.
    •  
      CommentAuthoralan
    • CommentTimeDec 18th 2007
     (340.14)
    The past decade has (more or less) seen the Internet at Large anally gang rape the term "Fair Use" with unlubricated razor blades.

    But that's just my opinion.
  15.  (340.15)
    @JTraub:

    Interestingly, the fanwriter group and their allies make a big deal in the Scalzi thread about how asking permission from a fellow fan writer to do work based on their fic is considered standard good manners - but that asking permission of the original IP creator is not... because fan-to-fan is a 'gift economy' and the IP holders are too hard to get hold of, or similar rubbish. And they truly do not see the contradiction.

    BTW - icon love! Batou rocks.
    • CommentAuthorConfusion
    • CommentTimeDec 19th 2007
     (340.16)
    I side on the "appropriation of images is fair use" side, with a side note of "attribution is ethical behaviour".

    Now, if they were -making money- off their use of her image, then I'd suggest it becomes more of a matter she should be complaining about. If you're doing web-publishing of art and want to guarantee someone doesn't just pick up an image, shouldn't you be watermarking your name into the image?
  17.  (340.17)
    Cat,

    Well, most, er, sure I will use this word, "rational" fan-fic writers (cough, cough) probably realize if they asked permission they would be promptly told no and come up with a nice excuse for why they do not.

    And, hah, see my Batou icon - there is a perfectly viable fair use. A very small sampling, no visible impact on the market for the product, and almost certainly transformative.

    Alan,

    Not really in any legal sense. Oh sure, a billion entitled geeks typing away can misconstrue fair use at the speed of light, but they have not really impacted it in any tenable legal way.
  18.  (340.18)
    Not really in any legal sense. Oh sure, a billion entitled geeks typing away can misconstrue fair use at the speed of light, but they have not really impacted it in any tenable legal way.


    I don't know - ORG worked to get such things as format shifting into the Gowers report which, to be fair, isn't law *yet* but it is still a strong independant government requested recommendation.

    I'll let them tell it,
    Exceptions to copyright

    Calls for additional exemptions to copyright law for “creative, transformative* or derivative works” and for “caricature, parody or pastiche” will be important to both artists and the public alike. We are pleased to hear that libraries will be supported in their preservation work and will be allowed to copy and reformat copyrighted material, including film and sound recordings. This is essential to the health of our cultural heritage and we are delighted that the Chancellor has recognised its importance.

    A private copying exception

    A recommendation that private users be allowed to copy music from a CD to their MP3 player. When ever I mention this is a conversation I normally get a wonderfully confused look followed by the comment “What, I thought that was legal.” It still currently not legal in the UK, that is until this recommendation if followed and the law is amended.

    Back in February when the Open Rights Group was presenting evidence to the All Party Internet Group, Ian Brown said

    I am always astonished when I speak at events like this that it is only a small number of lawyers who know copyright law who even realise there is not a private copy exemption in British law. I am sure if you went home and talked to friends and family very few would realise they were breaking copyright law by making copies of their own CDs, for example.


    Except of course that the government has enacted all of the restrictive reccomendations, and none of the excemptions. But we live in hope...

    [Disclaimer - I happily belong to and have a standing donation to them, also a lot of them are my friends]
    • CommentAuthorrobb
    • CommentTimeDec 19th 2007
     (340.19)
    sorry if this repeats anything, i haven't had time to dig through every single opinion, retraction, and update of the other blogs.

    1. what were her rights/usage flickr settings at the time of swiping, if the richter scales swiped the image from flickr?

    2. i find it funny that no one has mentioned whether the rights holders to "we didn't start the fire" by billy joel have to say about the song. but, that's the music portion which is arguably fair use as it's criticism and satire. there's lots of legal precident for parody, even if it's commercial.

    3. now, because the richter scales are a commercial entity (they advertise their cds for sale on their site) and not a non profit nor educational institution, the swiping/appropriation of a photo is wrong. that video is not art. it's a commercial tool. isn't that actionable? don't the standards for images to be labeled "transformative" require the original to be manipulative by an obvious degree? whether by cropping, altering color, chopping it up, or adding to it?

    4. if this is sampling to create a larger work, which could be argued, then legal precident requires them to license the photo.
    •  
      CommentAuthorJoe Paoli
    • CommentTimeDec 19th 2007 edited
     (340.20)
    It seems to me that the notion that an author who hasn't sold or licensed their character doesn't own it is preposterous. Fan fiction's existence is generally a good thing (I won't get into issues of quality) and though technically violating copyright, should be tolerated so long as there's no profit involved with it's creation or distribution, nor revenue taken from the original. Though the latter is a big grey area as far as proof goes.

    As far as grabbing something off of the net and using it as your own for profit without license or permission, it's another form of plagarism and theft. If I were putting original content out there on the web, I'd be burying authorship and copyright ownership info in it with steganography techniques and finding lawyers that work on a settlement percentage basis to punish those that took it and used it without my permission.

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