Feeling Weird About Copyright

It’s called “sampling” and “borrowing,” and “imitation is the sincerest form of flattery.” In earlier days it was called “copyright violation,” and “plagiarism.” Whether it’s songs or poetry, images or photographs, one of the fastest changing behavior in our American culture is who owns what.

I’m always amazed when I see artists on Etsy using Disney or Looney Tunes characters on their work. If Disney or Looney Tunes finds out, they will be hit with a “cease and desist” letter–at the very least. They can also  slap violators with a huge fine for copyright infringement.

In America, the way we make laws is by suing each other and watching the outcome. Suing over copyright is the way the internet laws will be decided.

A cup with a fateful lyric on it. No permission was given, and now there's a lawsuit.

A cup with a fateful lyric on it. No permission was given, and now there’s a lawsuit.

Just this week Taylor Swift went after Etsy artists for using her lyrics on cups and T-shirts. She is now trying to trademark the lyrics, some of them such common phrases that she most certainly didn’t create them.  Normally, lyrics fall under copyright rules, but she has powerful lawyers, and they are in scorched-earth mode.

In a weird sidebar, of all the things we can copyright, perfume is not one of them. Here’s an article about perfume protection.

For the common ruck (that’s you and me) there are two kinds of copyright protection:

1. Any written or drawn item you produce is under copyright from the moment it’s finished. You don’t have to mail it to yourself, but you may have to prove it was your idea first, though. If someone uses your words (songs, play, dance steps you choreographed), you can sue them. For violating copyright. For example, if someone uses one of your photographs in an ad without your permission, you can sue them only for the cost of  the space of the ad.

2. If you register your material with the U.S. government’s copyright office, you can sue not only for violation, but for damages. The amount can be substantial, depending on the size of the audience and the commercial use of the piece.

You can also use a lawyer or Legal Zoom to help you. I’ve used Legal Zoom with good results, but it’s good to check them out yourself.

A few cautions on copyright:

1. You cannot change something “20 percent” and then think it is safe for you to use. That rumor has been around forever, and it’s as wrong now as it was then. There is no percentage that makes copyright violation a good idea.

2. “Fair use” is not easy to use to weasel your way out of a lawsuit. The tricky paragraphs are Sections 107-118 of the copyright law. Here is an excerpt:

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

So, you will have to get permission.

3. Just because it’s on Google or Flickr does not mean you can use it. Google is a popularity index, not a poacher’s paradise, although that happens. You shouldn’t be doing it.

About websites: it’s your job to be vigilant about your own material. The U.S. Government will not sue anyone for you. That is your responsibility. If someone uses a blog post, an image, a photo from your site without permission, you can send them a take down demand under the Digital Millennium Copyright Act.

You can use sample letters found on Google.  An important point: you must be able to show that you are the copyright owner. This link tells how to do it at Scribd: http://support.scribd.com/entries/22980-DMCA-copyright-infringement-takedown-notification-email-template

It’s a whole new world, but be careful out there.

Note: I am not a lawyer. I cannot answer your questions about your specific work with any accuracy. I wish I could, but your best bet is to hire an intellectual property lawyer.

-Quinn McDonald knows the complexities of copyright and thinks it needs to be simplified. But her phone did not ring, and no one is asking for her opinion.

 

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33 thoughts on “Feeling Weird About Copyright

  1. Your comment about people outright copying is so interesting, since I often found in my workshops for adults getting into drawing, that many of them never understood that art making is original, not just copying what other people did.

    I’ve even had people not grasp that an art exhibit is the original work of the artist, not a bunch of items they copied from other people. My students even expected me to give them drawings to trace! but they all came along and learned about original art and some of them developed well, eventually. But it was such a revelation to me that they even needed to learn this.

    • Look at the art and crafts industry–they generate equipment to help non-illustrators become “artists”–there are stamps, stencils, cutting machines with pre-set die cuts. There are printed papers with designs, pre-calligraphied words, stickers. All designed to make you feel like an artist. I’m not saying they are bad, but I am saying they are being used to make art faster and more accurately, instead of helping people learn about their own creativity.

  2. This issue has been plaguing me and other artist and craft-people whom I know. I’ve had quite a few people walk up to my craft booth, pick up an item and look it over VERY carefully (or take photos!) – even ask me detailed questions about it (which takes my time away from true customers!)… then say “oh I can’t wait to start making this myself” (or words to that effect) and walk away. Most often I just sit there dumbfounded because the blatancy is so shocking to me. Thanks for the post Quinn! It’s nice to know I’m not the only one who’s struggling with this issue!

    • When I did art festivals, people would do that to me, too. I had a “no photographs, please” sign in my booth, and I would politely enforce it. A few people told me that I was in a public place and couldn’t stop them. I explained, still politely, that I had rented the booth space, so it was my property for a few hours. When they began to ask about my suppliers and for directions, I’d always say, smiling, “This is how I make my living; I’m sure you want to create your own original ideas.” A couple of times a woman would say, “I’m not creative, but I copy anything.” Absolutely no idea what it entailed to create original work. Part of being a show artist is to educate your audience, but it is a hard, uphill climb.

  3. Thanks for this clarification. As a retired public school teacher we were regularly coached about copying materials. An odd part of our culture (and I include myself at times) that wants so much for free. Robalee Chapin

  4. There is an excellent website that explains copyright for collage artists. It’s a narrower view than what you’re talking about here, made in the days before Pinterest, but it does tell people what is OK to use in your art. I have found it so helpful.

    http://www.funnystrange.com/copyright/

    One of the reasons I love Flickr is their use of the Creative Commons license. Not only can you put on each photo the kind of copyrighting you want for the image, it’s very easy for me to see what’s OK to use, and what’s not. I wish all the popular blog platforms would incorporate Creative Commons licences for each photo uploaded, and that Pinterest would make sure that info was included whenever someone pins a photo. I realize that will not stop things from being ripped off, but it would make it easier for people like me, who respect copyright.

    • Love Creative Commons. I think a new copyright law is needed, and Creative Commons does a good job of filling in what is not there. The article you mentioned was written in 2001, so things might have changed. One thing I’ve heard (and have no idea of how accurate it is), is that once you have paid for a magazine or book, you can use the pages in it because you have paid for the reproduction right in that magazine. You may not make copies, or use it for transfers. People who want to license their collages for use as napkins or bed sheets are discovering they cannot unless they have permission from all the pieces–including rubber stamps, etc.

  5. Pinterest really worries me. It’s so easy to lose track of who the artist is in the frantic madness to add to a bulletin board. Are people living vicariously through others’ creativity? I say, take down all those pins and get to work on your own ideas.

  6. Stealing someone’s labour and calling it your own stinks whether it’s legal or not and especially if an income is derived from it. I found the post interesting in the light of this TED talk that I listened to just yesterday.

    And I’m wondering, as an aside, are laws in USA generally tighter and the judgements more punitive towards the transgressor?

    • I was really surprised to find that fashion has almost no copyright protection. I would have thought that patterns would be the part with the copyright. And they have also policed their own by scoffing at people who “duplicate” a prominent design. The TED talk was really interesting. And part of me says that nothing should be under copyright because ideas are free, but as a writer, I know that workbooks aren’t

  7. As for sending them a take down demand under the Digital Millennium Copyright Act, the site that did this to my work has no contact information that I’ve found yet. Thanks for the information and links, I’m going to look into it more.

  8. I only post pictures of my own work and I take the pictures. I wish I got the same courtesy in return.

    I found that there are probably thousands of pins of my work on Pinterest involving a particular picture. They mostly point back to someone who used a picture of my work, which is copyrighted and even published in a book, and misrepresented it on their blog, strongly inferring one could make it with cornstarch and baking soda.

    Pinterest’s report page is aimed at punishing unwitting Pinterest pinners rather taking all pins down that are based on the thief’s source page.

    I made a proper tutorial for it now, on my wordpress blog, and I made a youtube video about finding my work misrepresented. At best a few hundred people saw my blog page and last I looked, only 55 people saw my video.

    For the average artist who doesn’t have money to chase people down with lawyers, they rely on decency. The problem is, enough people have thrown that out the window.

    • Sometimes Legal Zoom can be inexpensive and extremely helpful. (Ask about price before instructing them to do anything.) Pinterest does give me a good deal of heartburn, too. It would be fine if everyone just pinned stuff they like, but alas, then it becomes open season for people swiping work. I once saw, framed on a home wall, a “photo” with a big circle-C copyright mark. The woman thought it was part of the original photography design–I had to bite my tongue so hard I almost cried. And I’ve had the same thing happen with my Monsoon Papers. I gave instructions on how to do it, and I wold not mind if people simply referenced me when they taught it, but no, they put a new title on it and now claim it as theirs. Sigh.

  9. This is a vexed and vtexing issue. I’ve been accused of being selfish for demanding that people take down my artwork they used as screensavers without permission! on the grounds that “art is for everyone”. So I’ve suggested that since it’s my property and they feel free to use it, I’ll just show up and drive off in their car, after all, transportation is for everyone!

    I did have to force a blogger to take down an entire post he had stolen from my blog, complete with my pix which had my character dolls, my art creation in them, and an account of a photo shoot we did at a farm.

    He protested he thought I’d be flattered by his use. And I pointed out that he gave NO credit to the source, didn’t even use a link to it to share it with his readers. And that unless it was gone in the next hour, I would take legal action. It was gone and didn’t happen again.

    But I did post a note on my blog telling my readers about it and asking them to help look out for theft from my work, since they’re familiar with it, to notify me so I can pursue the culprit. This also put culprits on notice!

    • This is a familiar story to me. Writers and artists are supposed to be flattered that someone takes your blog posts and photos and posts them (often without attribution) on their own site, with no links. I’ve had to go after several people who steal whole paragraphs and use them without attribution, as their own. And then tell me I’m selfish–quite interesting interpretation. But I believe I need to police my own work. I don’t want to deputize friends because it’s not a paying job. What I do is embed numbers in photos and put those on Google alerts, along with specific phrases from my copy. Google Alerts does the work, and I send out the emails.

  10. Copyright… ohmy… it’s such a difficult field, especially for art journalers (like me) who uses photos from magazines in collage and quotes and songlyrics on the pages… for the magazine “Featuring” (1st issue) I had an interview with a copyright lawyer and boy – did I hear (and learn) a lot! What most strikes me is, that laws in the USA are different from Europe – which makes copyright (and when do you violate it) even more blur. The first weeks after the interview I was in a cramp and afraid to work in my journals even; afraid to do something ‘illegal’… I, too, am amazed by the fact that a lot of crafters use other’s stuff so easily without thinking. When I ‘tell’ them or point it out they usually get angry or – at least – annoyed and they find me a whiner (is that the right word?) so I mostly keep my mouth shut about this topic. I love that you post about this, it makes me feel happy to know that I am not the only one being aware of ‘stealing’ images/texts and it’s consequences.

    • The internet makes it harder, agreed–because laws vary from country to country. And the music industry travels under very different cultural norms where “sampling” is just fine. In writing, I’m amazed that the concept of plagiarism has sort of vanished. My adult writing clients look at me oddly when I bring it up. Magazine publication (about which I need to tell you nothing) is largely done in fear of getting sued. So people who are happy using magazine photos (under copyright) are being chased off, although the rules for collage are different (but not clear). So the legal department (not an artist among them) goes for safety–which is foreign to most artists.

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