BYRON

BYRON

Joined December 2007

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THE BEGINNER'S GUIDE TO COPYRIGHT & DMCA - Part 1

THIS TUTORIAL IS INTENDED AS AN EXPLANATION OF THE CONCEPTS SURROUNDING “COPYRIGHT”.

 

THE INFORMATION PROVIDED BELOW DOES NOT CONSTITUTE LEGAL ADVICE.

 

IF YOU ARE CONCERNED ABOUT ISSUES OF COPYRIGHT THAT MAY RELATE TO YOURSELF, THEN YOU SHOULD SEEK THE ADVICE OF A QUALIFIED LEGAL REPRESENTATIVE.

 

In the beginning was the word ….

 

and the word was…

was….

… was…

COPYRIGHT !!!

 

This one little word goes to the core of any artist’s soul, yet it causes so much consternation, confusion and calamity…

 

So what is Copyright?…

 

  1. WIKIPEDIA defines Copyright as:

Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. WIKIPEDIA

It is an intellectual property form applicable to any expressible form of an idea or information that is substantive and discrete. WIKIPEDIA

 

  1. ASK KIDS.COM defines Copyright as

A copyright is the legal right to publish or distribute a written work. The copyright is usually owned by the author of the work unless otherwise stated. ASK KIDS.COM

 

  1. THE FREE DICTIONARY.COM also adds:

… whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. THE FREE DICTIONARY.COM

 

The important concept to note here is that copyright protects the expression of an idea, and that it is applicable to any expressible form of an idea

In a nutshell:

  1. An Artist has an idea.
  2. The Artist expresses that idea in a real and tangible way.
  3. The Artist now owns the rights as to how that idea is expressed in the future.

 

But what do you mean by “the expression of an idea”?

 

Well, lets say my name is Joe Shuster or Jerry Siegel, and I am trying to make a new and exciting cartoon character.

I come up with this crazy idea for a man from another planet, who travels to earth as a little baby, and then grows up to discover that he has super-powers.

I would probably call him “Superman” for want of a better name. I would put his underpants on the outside – because that looks cool, and I would give him a cape, and a big “S” on his chest.

Hell, he could probably fly too! I mean that is a pretty “super” power right there! Just how “super” would a man be if he couldn’t fly, huh?

Hey, I reckon he would be stronger than a locomotive, and faster than a speeding bullet!

… and we will make him good at Journalism too, because nothing says “super” like a dude who can type good copy!!!

So we sit down over a few beers and start drawing what we think our idea would look like.

Maybe we could get rich from this idea… who knows? Maybe a comic book company might buy our idea from us … who knows?

 

Jerry & Joe’s visual representation of “Superman” is the “expression of their idea” in a tangible form and Jerry and Joe own the rights to that creation and how that creation is expressed [depicted] in a real and tangible sense.

 

This means that no matter how you may draw your version of Superman, you are not allowed to publish it [ie. display it to the public] – because Joe & Jerry own the rights as to how that creation [Joe & Jerry’s “idea”] is depicted or “expressed”.

You could make him look a bit different, and maybe even call him something else like, ummm, errr… I dunno, let’s go with “Captain Marvel” as a name – and you would still end up with a lengthy and expensive legal battle on your hands!

 

Hey man, I got rights…

 

Copyright affords the creator of the idea with certain rights, for a certain amount of time. The amount of time varies from thing to thing and from country to country, but as a general rule – if the person who created the “expression of the idea” is still alive – then Copyright still applies.

Generally, Copyright affords the creator the following rights:

  1. To be credited for the work,
  2. To determine who may adapt the work to other forms,
    1. To create derivative works [works that adapt the original work].
  3. To determine who may perform the work,
    1. To perform or display the work publicly.
    2. To transmit or display by radio or video.
  4. To determine who may financially benefit from it,
    1. To sell or assign these rights to others.
  5. other related rights:
    1. To produce copies or reproductions of the work and to sell those copies [including, typically, electronic copies].
    2. To import or export the work.

From “Copyright” – WIKIPEDIA

 

Derivative Work and Fan Art, and why imitation is not always the coolest form of flattery…

 

Most of the rights assigned to artists are pretty self-explanatory, but one that I would like to discuss in particular is The right to create Derivative Works and how that relates to Fan Art

A “derivative work” is a work based upon one or more pre-existing works … in which a work may be recast, transformed, or adapted. WIKIPEDIA

Fan Art or fanart is artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the work is derived. WIKIPEDIA

This is what the Plagiarism Today website has to say about copyright and derivative art in their article The messy world of Fan Art & Copyright

“According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.”

Fan Art is generally a non-legal form of Derivative Art. To prove it carries exemption to copyright you have to do more than chant the mantra “Fair Use, Fair Use, Fair Use”… you actually have to prove it.

The Plagiarism Today article goes on to say:

“… fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the event that such a suit takes place.”

So if a copyright owner tells you to remove your Fan/Derivative Art from your webpage, then you really should do so.

It is a misconception that it is ok to upload derivative works without permission – so long as you don’t offer them for sale. The real issue is with the act of publishing the derivative works…

…and in this day and age “publishing = uploading to a website”

Some copyright owners will tacitly allow Fan/Derivative Art, probably because they figure that it is better to keep their fans loyal rather than pissed off. But pretty-much every artist HATES having someone use their original ideas to create their own works.

Legal issues aside, look, its just not a very cool thing to do without permission.

If you really feel that you must create Fan Art / Derivative Art, then use some common sense and some good manners… in short I would recommend following the advice from the Plagiarism Today Website and their article The messy world of Fan Art & Copyright

1. Check the Rules
Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.

2. Make it Clearly Unofficial
Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.

3. Be Non-Commercial
This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.

4. Be Careful with Domains
Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.

5. Comply with Requests
If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

 

awwww c’mon mate, fair suck of the sav’ …

 

There are, of course, always exemptions to any Rule, and there are many many exemptions to Copyright, but the ones that apply to most of us are grouped under the common term “Fair Use”.

“Fair Use” is known as “Fair Dealing” in Australia and some other countries.

Fair Use varies from country to country, there is no one specific definition, but generally the intent is the same wherever you go.

Fair Use allows for the use of copyrighted materials for the following purposes:

  1. commentary,
  2. criticism,
  3. news reporting,
  4. research,
  5. teaching,
  6. library archiving and scholarship.
  7. and in the USA … Parody.

The legal use of copyrighted material is based upon a “four-factor balancing test:”

  1. How much of the original copyrighted material was used.
  2. How much the original copyrighted material has been changed or altered.
  3. Was the derivative work created for educational or non-commercial purposes.
  4. Was there any economic detriment to the owner of the originally copyright material from which the derivation was made.
    WIKIPEDIA

 

Urban Mythconceptions about Fair Use…

 

It is a common misconception that if it seems fair to use it – then it is “Fair Use”. For example:

  1. You found an image on Google.
  2. You have seen lots of other people doing the same thing.
  3. You are not making it available for sale.
  4. You are just having a bit of fun.
  5. There was no Copyright Notice on the image.
  6. I just really love [Star Wars, Dr Who, Hunger Games and Star Trek, Hello Kitty!, Batman, Spiderman, some guy called “Han”, or any-man … who is inna-costume…] and this is how I like to express my love of this character…
  7. They [the copyright owner] makes millions of dollars from this “thing” – what will it hurt if I sell a couple of t-shirts?

none of these things constitutes an exemption to Copyright under “Fair Use” or any other doctrine. To argue that any of these things constitutes “Fair Use”, only shows ignorance of the concept and of the Law. However, it is recognised that the terminology does cause some … confusion.

 

Parody and the Gentle Art of pastiche, spoof, send-up or lampoon…

 

Parody is by its very nature a form of Derivative Art, probably most famously employed by the Zucker-Abrams-Zucker team in “Flying High” and “The Naked Gun” movies. But there are others…. Monty Python and the Holy Grail, Scary Movie, Shrek, etc etc.

Personally, I think Parody is just about the funniest form of humour ever. I adore its satirical and subversive nature. I used to buy National Lampoon Magazine back in the day, and I still think that was THE funniest magazine ever. But that’s just me…

  1. WIKIPEDIA defines Parody as:

an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation WIKIPEDIA

  1. WIKIPEDIA goes on to say in relation to exemption to Copyright under “Fair Use”:

[Parody] is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. That commentary function provides some justification for use of the older work. WIKIPEDIA

 

Parody, as a codified exemption to copyright, is unique to the USA and recently Canada…

It is important to understand that as an exemption to Copyright, it is not enough to simply make fun of a copyrighted material, the parody must also provide some form of commentary about the thing being parodied. For example, the Flying High movies [aka “Airplane”] not only mocked the “disaster genre” movies which were popular at the time, they also made a pretty strong commentary about just how god-awful-bad those films were in nearly every aspect. [ The scene in the second film where William Shatner’s character looks through the periscope and sees the Starship Enterprise fly past, is just hilarious! ]

But I digress…

… as I am want to do..

 

Parody as an exemption to Copyright may be tolerated in other countries, but it is not a codified legal exemption in countries like Australia, and the United Kingdom

If an Australian were to run around and claim “Parody, Parody” as their exemption to Copyright, – well this would be about as legally useful as claiming “Free Speech” – which we also do not have codified in our Constitution [along with the right to peacefully gather to protest etc…]. We may agree to abide by the terms of many international conventions, but that is a bit different to the USA where it is actually written into law.

Sometimes I think people may watch a bit too much US television…

So, if you make a derivative work, and claim that you are exempt from Copyright under Fair Use and Parody… well, be carefull about which rock you and your hobby-horse are standing upon because the ground may start to get a little bit shakey…

 

But I have a right to express my self…

 

Look the whole issue of using another artist’s work, whether directly or by derivation is just a sensitive and rather dangerous minefield, and your supposed “right to express yourself” does not include the “right to not be mindful of the rights of others”

Using someone else’s work or ideas without their permission is just plain rude, and shows that you have no regard for the feelings and the rights of another person.

Sure, sometimes people just don’t realise they are doing the wrong thing, afterall its not like they teach Copyright in school, so they can be forgiven for making their mistakes.

The issue arises when someone starts to claim “Fair Use” as a justification for their actions because that implies that they acknowledge their appropriation of another artist’s original work.

The fact that they didn’t ask permission first just shows that they have no class or character… and as far as most other artists would be concerned – they have no talent either!

And yet ALL the issues of Copyright infringement could be neatly and easily resolved by the simple application of some good manners.

 

Surely you can not be serious! … you expect me to remember all of that stuff?

 

Yes I am serious.

… and please stop calling me Shirley!

Exploring copyright can seem like a never-ending descent into chaos and madness… the further you get into it the more complex it gets, and the further you seem to get from a clear concise understanding of the subject.

But for most of us it can be refined down to two simple and basic concepts:

  1. Copyright applies to both the image itself and the expression of the idea which created that image.
  2. Do not use another artist’s original image or create a derivative work of that image/idea – without first getting the artist’s permission … regardless of your reason or purpose for using that image/idea/concept.

 

Further Reading … if you are still having trouble sleeping, or you have no social life…

 

THE BEGINNER’S GUIDE TO COPYRIGHT & DMCA – Part 1

 

THE BEGINNER’S GUIDE TO COPYRIGHT & DMCA – Part 2

 

THE BEGINNER’S GUIDE TO COPYRIGHT & DMCA – Part 3

 

THE BEGINNER’S GUIDE TO COPYRIGHT & DMCA – Part 4

 

REDBUBBLE – COPYRIGHT, TRADEMARK, & DMCA

 

PLAGIARISM TODAY WEBSITE – DMCA ARCHIVES

 

7 COMMON QUESTIONS ABOUT DMCA COUNTER NOTICES

 

ART THEFT, COPYRIGHT INFRINGEMENT … by Cindy Schnackel

 

MORE WAYS ART IS STOLEN by Cindy Schnackel

 

AVVO Copyright Infringement Advice Page

 

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