Why Copyright Law is a Matter of Perception

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Most people will argue that copyright is a law to protect artists and has nothing to do with perception, but this is just half the truth. This post will shed some light about common misconceptions*.

First off, this topic came up in a conversation about copyright, artwork licensing and a debate on how to solve issues with a client. Actually the essence of my thoughts are packed into the following post.

To begin with, I´d like to state that I´m an artist and have a sincere interest to protect my work as much as anyone else, but I don´t trust copyright or Creative Commons for that matter, the lines are too blurry and the jurisdiction is often very incomprehensible.

There is a German law that states:"The freedom of any person is untouchable", I´m sure every federation, regardless if Europe or rest of the world have something similar in their book of laws. But what does this mean besides the right of free expression? For one person freedom means to fly with a paraglider, for someone else this means to drive the highway on a motorcycle with 300 kilometers per hour, the guy next door will argue that traveling through the whole world means freedom, while someone else is just happy to have a flat and a job.

You see, we are talking about law AND perception.

When it comes to copyright there is no real difference, people used a cassette recorder and tapes to record songs from the radio in the early 80´s and are used to share albums as mp3 to their mediaplayer of choice now. Did anyone felt guilty by pressing the tape recorder onto the speaker, back in the days? Hell no, that was actually hard work!

This is all a matter of perception, if the education in schools would make kids aware that downloading copyrighted content is one of the mortal sins, it might have an impact, but maybe even not.
The general public perception of what copyright is, does look for the majority of people like there is something to protect the artists work. So far, so good. But in reality no one knows how this should work. Try to ask random people in your town about Creative Commons, funny times guaranteed.

Here´s one example of how fuzzy CC (Creative Commons) still is.

It might make sense to dive into Fair Use, but before you rely on that, learn from Andy Bajo´s case because there are monsters out there...

The majority of lawyer specialized in copyright are working in legal departments of entertainment and media companies, making a living by making the life of corporate competitors harder every day.

Are they protecting artists work? No, I don´t think so, they are protecting corporate interests.

If you come to the conclusion that copyright law can´t help you in some very complex situation, you are not alone, here some examples I´ve encountered and heard from other artists which also led to this post:
  • Artists work got ripped from the internet, painted from chinese traditional painters and sold by eBay
  • Many artists work got ripped from deviantArt and sold under the artist name Chad Love Liebermann
  • Artists work appeared on the web, other artist made airbrush on car with the image from the web, car won prize on show and was featured on a flyer for a custom car convention in another country
The problem with above mentioned posts is, that the works are "recreated" not redistributed as a copy, "Copyright law only protects reproductions, not recreations." (Special thanks to Dan Dos Santos for pointing this out!)

These incidents have something in common, copyright law can help you if your name is famous and if you can afford a specialized attorney. If that is something you can´t financially afford, there´s a rare chance to get something out of it, other than experience.

Another objection I have with copyright is that it can also be a chain for artists, especially when dealing with publishers (ie.: total buy-out). The most important thing is to make clear what your values are and add points to a contract that gives you all the rights you need without giving up too much. Negotiation is the key. Make your values clear upfront, not afterwards. An exclusive copyright license is not a total buyout! It is important to be clear about these definitions. Educate your client if necessary!

There is always a fine line between what you can do and what you can´t do when signing a contract where copyright is transferred to someone else. More often than not, artists walk on this thin line inbetween, without even knowing it.

I only work with two specific components when licensing artwork; exclusive or nonexclusive, but never a buyout. Even exclusive means I can submit my work to call-for-art competitions and online portfolio sites, while non-exclusive allows me to even sell prints of my own work.

Artists can walk on a very thin line...

You post your work on facebook, deviantart or any other site powered by ads? Think about the following: These websites/services make money through advertising and displaying your artwork which is eventually licensed to someone else. Are you infringing on copyright? Yes and No, Yes, because the company is profiting from your artwork, but No, you don´t get any money out of it...tricky situation.

Same goes for fundraising platforms such as kickstarter or other proposals where you have to pay a fee for promoting your work (annual Art Books, fairs, etc.where other people benefit from your work)...

What can I do when my image was used without permission?

When it comes to a use without given permission, the answer is simple: Write an invoice!
This is the first thing that should come to mind. It´s quite and doesn´t hurt. Professional businesses reply with a cheque. It is common practice to take-and-wait-for-the-invoice in many industries, especially magazines.
If that doesn´t work there is not a simple solution at all and it requires strategy to get something out of a case, but at least you know you are not dealing with a professional if that happens.

Here some first aid:
Communication is the first step, finding a specialized lawyer is another.
There are some important questions everyone should ask themselves:
  1. Are you member of any association that can help or provide information?
  2. Can a DMCA report help?
  3. Can the act be described as Fair Use?
  4. Is it possible to settle for a Win/Win situation?
  5. Is it rightful to get monetary compensation, or is it just your ego?
  6. Do you really get hurt if you don´t resolve the issue? 
  7. Does it hurt anyone else? 
  8. Do you rather bark at other people but can´t stand when someone does to you?
Don´t worry, questions 5 to 8 are ironically meant to bother you, more often than not it is just our ego that wants a compensation feed when something `in our book´unrightful happened. The internet is known for drama queens and trolls who feed their ego spreading messages of artists being ripped or spotting rippers wherever they can. Some people practice this as part of what they call life, while in reality it is just a compensation for "no luck at all". The effect of it is a mass of artists following them for more feeds about where and when their work got ripped, its a machinery that works like malware, once you are infected, you´re vulnerable and open to even more.
This is not just unhealthy, it is plain time consuming.

Below are some examples and a great documentation about copy / copyright that can inspire ideas and show that nothing is really new and that even nature does infringe copyrights. More information and the other three parts on this site: http://www.allremix.ru/watch-the-series/



My personal experience is that it is always easier to ask in advance, I once had a nice commission that turned into a nightmare because the initial concept was screwed and the agency presented a comp that was just resembling my character photoshopped together with a painting from another artist. I really did not had a good feeling and asked the agency to settle with the original artist prior releasing the book and they did. Actually I´m glad how it turned out, the artist is Gerhard Haderer a wonderful German cartoonist and he replied that the illustration was great and that everything is fine.
Here´s the image in question(left), and the inspiration work from Gerhard Haderer (right):







Actually you know, if it doesn´t feel right, it probably isn´t right and it is time to do something about it.

Other than that, no one is perfect. It can happen that we forget to mention someone, credit wrong or forget to ask for permission in advance, all these things happen, day in and day out, because we are humans! This is not the problem, trying to understand why something happened making clear where we come from in order to settle for a win/win situation is something also humans can do.

My personal conclusion is that all things have karma, everything comes back to you.
I also have to admit that I have recorded songs on tape from the radio in my teenager years, but I paid my dues and I do so daily, by writing useful blog posts, sharing my artwork and knowledge with the world.

*Note: This post is no replacement for any existing law, only a lawyer, court or judge can decide whether your case is a matter of copyright infringement or not. Based on contracts, terms of use or verbal agreements or even the lack theirof might be a help  or indicator for any legal action to be taken. My information here is just a summary expression of my personal thoughts about copyright and creative commons and is meant to show that communication, trust and negotiation is far more important than a written agreement.

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Oliver aka Fantasio is a creative blogger who likes to share his insights about art, marketing and social media. Follow Fantasio on twitter or facebook

3 comments:

  1. Excellent post, you have a great understanding of these things. I will reshare on SurrealPSD if that's ok?

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    Replies
    1. Hi Conz, thanks for the comment, sure thing!

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  2. Great post Oliver, my thoughs exactly on this matter (perhaps with some more radical touches in certain areas). It was specially fun to read the drama queens part - I'm amazed everyday when anyone starts to yell about being ripped - and it gets even funnier when you see that the "rip-off" is a feature in a blog post - lol, free advertising! :P

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