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    • CommentAuthorrobb
    • CommentTimeDec 19th 2007
    for the fan fiction people: has there been an acknowledged case where an original author/creator swiped (or was accused of swiping) from fan fiction which used their character?
  1.  (340.22)
    @robb - I believe the photo in question was under Creative Commons (attribution), but I could be wrong, in which case it was under the "standard" personal copyright, in that Lane should have been contacted and then attributed/compensated for the usage. The use of the Joel song falls under parody, and the author was attributed from the start. The argument of the moment is Lane is a photographer who is struggling to make a name for herself, and one of the best ways to do this is to make sure every image of hers has her name on it. In this case, it wasn't.

    The larger point, which I stand by as well, is not so much the compensation or the attribution, but to let all and sundry know that just because a thing is found on teh internets doesn't mean it is instantly Public Domain. So even though it was a single photo seen for two seconds on a video of relatively minor importance, it's basically stopping the "appropriation for transformation" train before it gets rolling too far.
  2.  (340.23)
    @JTraub - Thanks for the wise words. My attempts at cleverness (duct taped IP nomenclature) notwithstanding, I wasn't so much arguing the altogether good thing of protection under IP rights, I was irritated by the "information wants to be free" folks who use the argument against corporate IP monopolization to excuse theft of artistic work, citing the same arguments, which basically equates the cure for cancer (information/knowledge) with, I dunno, Picasso's Guernica (artistic expression). The idea of "transformation" rides these same arguments, which can and should be applied to scientific or technological discoveries (ideas built upon freely given ideas), but the suggestion that one can simply nick a picture or song or piece of writing and scribble all over it and call it "transformed" is arrogant at the very least. In my writing and photography, I neither ask for nor need any damn collaboration, and to have some folks state that they feel it is their right to do so (or worse, that they think my work "wants to be free") is akin to strangers walking into your house and demanding to have a hand in the raising of your children.

    The more I think about this, the more I think there needs to be a fundamental separation of Artistic Property (ick, I didn't even like typing that) and Intellectual Property, with their own separate forms of legalese and rights and protections. Creative Commons seemed to be going in a helpful direction, but not everyone wanted to play in that particular sandbox....
  3.  (340.24)

    Well to be honest I can only speak for the US where the internet expand Fair Use crowd is allot of noise, but have not had many legal victories. My knowledge of UK copyright law is sadly limited, I know where you all overlap with us for international work but past that it gets very fuzzy.


    I can see the desire for discrete language, but I worry such an idea is seeding the field on an intellectual level to those who insist there should be no protection for artistic work. The simple fact is patents have a short life, and very few issues of great ethical relevancy arise outside of phara and medical technologies. When the groups talk about reforming IP they mean copyright, the comparisons are simply excuses and agreeing Copyright is not IP is putting the game well into their court.

    But, again, I am an attorney, I am well mired in one view.

    Oh and worth saying, since I did not before, Copyright is after defined in the US as the right to protect expression in fixed form already.
  4.  (340.25)

    Further to the fanfic-as-transformative-works bit, here are the opposing positions represented in that most educational of Internet forms, the Bingo card.



    Just because...
  5.  (340.26)
    Jtraub - No worries mate, the internationality of the internet is why I tend to stick "In the UK..." in front of a lot of stuff that I write. Likewise I have no intimate knowledge of what the EFF have achieved.
  6.  (340.27)
    Well I try to be extra careful on a Warren board, because often the conversation is international but the publishing concerns of many members are linked to the US no matter where they live. So it pays to be specific, hah.

    I have mixed feelings about the EFF.

    They have done good things, and at the same time they have made some very stupid claims and pushed hard in the wrong direction on issues. On concerns of privacy and related civil rights issues they are an incredibly important group, but I do feel they have drunk the Koolaid on copyright. Not that having a group that pushed in the other direction from the industry lobbies is a bad thing, but I feel they have bought full on the notion that "free culture" is one in the same with freedom and as a result they have little time or regard for the desires of artists.

    For example, I have never seen a position put forward on the internet to restrict corporate copyright while leaving things as are for individuals. Not sure I would agree with it anyway, but it would be a olive branch to the idea that all artists are not big business concerns and the law already gives the two different terms anyway.

    The fact is legally corporately held copyright works a certain way, and I will defend it as it exists under the law, but I would not loose any sleep if it changed tomorrow. WFH is a economic issue of great importance, but morally I am not invested in the length beyond a reasonable time to profit. On the other hand, I am very sensitive to claims that impact copyrights held by artists and very aware how few distinctions the "everything should be free" community tends to make.
    • CommentTimeDec 23rd 2007
    What was the basis for the Richter Scale band using the photo an claiming "Fair Use"? I haven't read that discussed anywhere. If the photo was used because it was under the creative commons but needed to be attributed to the creator then the band used it unfairly. Although, if the use was genuinely satire, which should be argued in a legal case, then the photographer is in the wrong. I think that perhaps the Richter Scale backing out of using the photo altogether, and trying to work out a deal to use the photo shows that they had very little reason for Fair Use.

    Calagari- The best way to protect your work is to know the limitations of copyright backward and forward and to pick your battles.

    for the fan fiction people: has there been an acknowledged case where an original author/creator swiped (or was accused of swiping) from fan fiction which used their character?

    I haven't heard of one, but I'd hardly call it swiping considering they do not own the work. Also, considering the MASSIVE amount of fan-fic out there it's hard to imagine a scenario or situation that hasn't been done. Taking a case like that to court would be legal-suicide.
  7.  (340.29)
    Although, if the use was genuinely satire, which should be argued in a legal case, then the photographer is in the wrong

    Parody and Satire are legally distinct and its an important distinction here. Satire is not inherently fair use.

    Parody makes fun of the original work, and is strongly weighted in favor of fair use. Internet folks will tell you it always is, but thats one of the most misapplied bits of copyright law taken from Acuff Rose. The reality is it is strong but its not certain. The inherent notions is we often have a right to make fun of things as part of fair use, you still argue factors but the presumption is in your favor.

    Satire uses a work to make fun of something else. No presumption of fair use here at all. The inherent notion is when we make fun of something we can not claim that anything we take or use to do so is fair use even if its not related. As satire, which the case at hand is, is not weighed heavily in fair use, and was why we were talking transformative use up thread, since you can still argue other factors.

    Lets take a nice commercial example that relates the two - a "satirical" film which in the process parodies many other recent and well known films. The film makers do not have to ask permission to make each joke aimed at another film. The jokes make fun of those films including staging and scene call backs, each such scene is parody, and usually would be held as parody under fair use. However the film as a whole still needs to license the music for the soundtrack. Why? Because the nature of the film over all does not give them the right to take what is not being made fun of and use it as fair use even if its part of the pacing and feel.

    The photo here was not the subject of the joke, it was used as part of making something else the subject of a joke and would fall under satire.
      CommentAuthorJoe Paoli
    • CommentTimeDec 26th 2007 edited
    Another log for this fire from boingboing:

    Apparently over the weekend, a blogger found a photo of her dog in an xmas outfit modified and broadcast in the FOX Sports Happy Holidays roll without her permission.

    After making Jamie pause and rewind and unpause and re-rewind the incriminating footage several times, I was convinced beyond a shadow of doubt. FOX had gotten hold of one of my photos of Truman -- specifically one in a series I'd recently posted here with him wearing a Santa suit -- very slightly doctored the image by removing the flash-flare lighting his eyes (good aesthetic choice there, FOX!), slapped a superfluous Santa Hat on his head, and then dropped the purloined pic into the on-screen graphic rotation for their Saints/Eagles telecast.
  8.  (340.31)
    Ok, my gut reaction was "or its another Dog that looked like yours", then I took a look.

    Yup thats her dog.

    Now, a one time use of her picture, even during broadcast as a graphic (I am guessing a bit here, outside my area, but I can not see the royalty policy for one time use of an image in broadcast being that high - this is clip art really). The expense of perusing this would outstrip the returns, especially where her time is concerned. Even more so its unlikely the image will ever to used again or even marketed on a DVD. A cease and desist is not much help when use of the image has come and gone, though she should get one sent just in case. The dog could become a damn meme after all.

    Lots more to come like this I expect. Copyright law, in a fiscal sense anyway, is not currently built in such a way that the small artist has an affordable redress for such events. Treble damages and attorney fees for a one time use don't help when you compare to the time you have to put in to redress the issue.

    Shame really.

    Of course I look forward to when the anti-copyright crowd wins and the entire Internet becomes a clip art and slush pool for commercial and corporate entities.
    • CommentTimeDec 26th 2007
    I'm having a time out until I can learn some manners.
    Hopefully there will be a reasonable compromise based on commercial use as the mitigating factor. If someone is making money off someone else's work then
    they should pay for it. If they are not it should be considered fair use. Companies like Disney and DC should not be able to make their copywrites last hundreds of years. This latest League of Extraordinary gentleman book has brought up the possibility that it would have never existed had there been copywrite laws
    like there are for mickey mouse and batman.

    I also don't like the way the US government has been lobbying my(Canada's) government to cancel our fair use laws even though our citizens are universally against it.
    We pay a tax on blank disks etc that goes to reimburse copywrite holders. When the anti fair use group lost in court becuse of this tax they lobbied to have it removed ,it was and then they still lost the next challenge although they have made some mostly reasonable changes.

    I don't like the threat that musicians(for example) would quit making music if not for copy protection. The way it is now even big popular acts make most of their money from tours anyway so more people downloading could actually make them money. It is the big corps that have had a stranglehold on the business that are in trouble. Also now you don't need a major label to be popular which is another loss of control they don't like. One of my favourite artists Immortal Technique gets NO label or radio support and distributes a lot by internet.

    Besides as long as their are countries that don't have copywrite the international nature of the internet will make things very complicated. The US inparticular seems shocked that US law does not apply in other countries.
    • CommentAuthorlex
    • CommentTimeJan 7th 2008
    The whole issue can be brought down IMHO to two essential points:
    - Awareness of copyright. The greatest merit of Creative Commons licenses is that they are transparent and easy to understand, even if you're not a lawyer. Still, artists need to be educated about their rights and possibilities to put a sensible license on their work.
    - Enforcement of a license. I guess this is the bigger issue. If somebody steals your work, you very often have no real means to defend your rights, unless you have a big publisher behind your back, or you know some pretty good lawyers plus you have enough cash to go against the offender.

    Copy protection is irrelevant. If you want people to buy your stuff, give them a reason to buy it instead of 'stealing' it. Good reasons are appropriate prices, international delivery, comfortable buying process, no pain in the @$$ DRM technology etc...
    • CommentTimeJan 9th 2008
    I'm having a time out until I can learn some manners.
    I forget who said it but they downloaded Transmet when they had it recomended and liked it so much they went out and bought all the trades.
    This person(it was on the what was your first exposure to Warren thread)probably would not have discovered Transmet without downloading
    and now they are a big fan and a regular source of income. The industry would look at how much they downloaded(say 8 TPB's)and assume they lost
    whatever they would have made on the 8TPB's when instead they actually made money and a lot more than what they "thought" they lost.
    They also tend to say if someone downloads 1000 movies that they would have paid full price for all those and therefore they "lost" that huge amount of cash.
    When the industry is using such blatant lies ,half truths and evil schemes like rootkits and DRM it makes people who would not have felt right about downloading feel justified.

    As soon as it is as easy or easier to pay for music and media and people can do whatever they want with it and most importantly make instant impulse purchases they will drown in cash.
    Most people would rather pay a fair price for stuff they like than steal it. It is not exactly a surprise that a bunch of american industry LAWYERS have a hard time grasping this.
    • CommentTimeJan 9th 2008
    I live by a fairly simple motto due to the times we live in. If I don't want people stealing it, I don't put it on the internet.
    • CommentTimeJan 15th 2008
    Scribe: That's a bit simplistic. I don't want anyone stealing my things but can I live with it? Yes. So I'll put it on the internet.

    If I couldn't live with people stealing it, I wouldn't put it out there.

    It's simple risk management.

    (That said, I think the Richter Scale are in the wrong. I don't believe you can/should use someone's copyrighted work to parody something else. If she was the source of the parody then fine, but otherwise...)