The Easy Guide To Understanding Copyright

Contents

1. Introduction
2. Disclaimer
3. What is copyright?
4. How is copyright breached?
5. International comparisons
6. The birth of your copyright
7. What is moral copyright?
8. Signing up with Redbubble
9. Uploading to Redbubble
10. Do I need to register my copyright?
11. What is the Public Domain and where is it?
12. Do I need to assert that my artwork is not in the Public Domain?
13. Do I need to write © and my name in my Descriptions?
14. Can I assert copyright with my RB username?
15. Do I need to state that use of my images in any way is not permitted?
16. What is a DMCA notice?
17. Derivative works? Transformative works? Why should I care?
18. Collaborations on RB – cool or a copyright conundrum?
19. How to legally use someone else’s artwork without their permission
20. Permission to shoot – don’t confuse it with copyright permission!
21. What to do when someone wants to use your artwork
22. Where can I get help about copyright?
23. Further reading/references
24. Copyright and me

1. Introduction

Since joining RB a few years ago, I have observed and participated in discussions on copyright and related topics. In matters of copyright and RB, I have observed over time two extremes permeating profiles and attitudes. One I will label the WGASA, the other I will label the OCA. Unfortunately, both behaviours seem to me to be on the increase.

The Who Gives A Shit Attitude is displayed by rip-off uploads, with either no thought and/or care given about the possibility that their actions are breaching someone’s copyright and thus in breach of their own RB membership terms.

The other extreme is the Overly Cautious Approach. This approach I see in the Public Profiles of those members anxious to ward off thieves. This anxiety in some instances extends to outright aggressiveness in tone, but mostly it is displayed by what I consider to be a bit unnecessary in terms of stating a reality, and it is sometimes accompanied by misplaced “warnings” about rights which do not actually exist. If every Public Profile on RB displayed the hardcore OCA, it would not seem to me to be a very welcoming place to visit. There is a way of dumbing down the reality of your copyright for the moron element in the thieving class, which I discuss in this Journal, but I keep coming back to the point that the OCA is only addressing a very small minority of visitors to your profile.

The two extremes are impossible to reconcile without pulling apart RB, but I am motivated to write this Journal in an attempt to bring them together to some extent. Along the way my aim is to help destroy some of the common myths regarding copyright I see being spread on RB. This will involve revisiting the WGASAs and the OCAs.

My approach in (hopefully) explaining copyright is step-by-step, but is focused on the issue as it relates to being a member of RB. This includes discussing copyright issues arising directly from some of the things we do within the RB community, such as collaborations.

I conclude this Journal by briefly recounting some of my own background and professional experience with copyright issues. This is mainly to deal with any concern that I’m talking out of my rear end.

2. Disclaimer

This Journal does not constitute legal advice. Whilst all care was taken in its preparation, it is for general information purposes only, and is intended solely to benefit members of RB. It also contains statements of an editorial nature, and these are mine and no-one else’s.

If anyone has a different view about anything I say in this Journal please do not express it in a Comment as it will be deleted. Instead, send me a bmail so we can discuss it “off-line” and, if necessary, I will edit the Journal to take account of your input.

All links provided in this Journal were working as of 13 March 2011. Unless otherwise stated, all legislative references are to the Copyright Act 1968 (Australia).

Now we can begin.

3. What is copyright?

Copyright is a form of intellectual property. It has value to its holder and it can be protected by legal means, sold outright, or licensed. Like goodwill, it is an intangible asset, as in you can’t see it or hold it, but it definitely exists and has value. These concepts are universally recognised, albeit with slightly different emphases in various jurisdictions.

Literally, the original concept of copyright meant “right to copy”, but nowadays it’s a little more sophisticated. Previously residing in the realm of common law, it is now more often defined and corralled by statute and international treaty conventions (see below).

The creator of an original artwork (or writing or design or play or script etc) is the person who in first instance owns the copyright in relation to that artwork. Copyright in this sense is a bundle of rights attaching to the artwork. In Australia, and in relation to artistic works, there are 3 prescribed rights (section 31(1)(b)):

(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to communicate the work to the public.

Being an asset comprising intellectual property, copyright owners can also transact on terms affecting their ownership. Whilst an outright sale is normally for a lump sum payment, a licensing arrangement will often be for a royalty, for example a stated percentage of the revenue derived from sales of coffee mugs displaying your artwork, as one entrepreneur wanted to do with one of my photographs. Common royalty percentages are in the range from 5-25% depending on the nature of the original item and the relevant nature of its licensed exploitation. A license of copyright is akin to renting your asset, like a rental home. You still own the house, you are just letting someone else use it for a specified purpose for a fee.

Since a license is for a specified purpose, and can often be for a specified territory, the copyright in a highly-commercialised artwork can be the subject of a multitude of different licenses at the same time. These are typically “non-exclusive” deals, whereby you, the owner of the copyright, are not prevented from granting other licenses (providing such further licenses do not impinge upon the rights of existing licensees). One such non-exclusive license is the agreement you have with RB (see below). Exclusive licenses, on the other hand, can generally restrict the copyright owner from pretty much doing anything else with the item during the term of the license and, thus, you would expect to be paid more for being locked out of your original rights.

4. How is copyright breached?

It’s okay, I’ve removed the image from sale. All good!

Absolutely, offering for sale on RB of someone else’s copyrighted artwork is a breach of that copyright (section 38), but there is a perception held by some RB members that breaching someone’s copyright can be avoided by not making the offending item available for purchase through the RB shopfront. It is a false perception.

Infringement of copyright in an artistic work can simply arise under Australian law when a person does in Australia “any act comprised in the copyright” (section 36(1)) without being licensed to do so. Thus the act of uploading someone else’s artwork on RB and making it available for public view is an infringement of copyright. Removing it from sale will not save the infringer from action by RB or the person whose copyright is being infringed.

The operation of the law in this respect is very precise. The provisions defining infringement are classic examples of legislative drafting – you define the offence broadly, then you define the exceptions narrowly. In this case the exceptions are listed as fair dealings (use for specified purposes) and as specific acts (for example the act of photographing a sculpture is not an infringement of the copyright in the sculpture), which I discuss later in this Journal at 19. How to legally use someone else’s artwork without their permission.

5. International comparisons

In the USA, copyright is viewed as a bundle of specific rights available to the owner of the copyright; for example, the right to reproduce or to license others to reproduce, with specific “limitations” on those rights prescribed by statute. “Fair use” is one of those limitations (s 107, title 17, U.S. Code), but is not defined by statute. I discuss fair use a lot more later in this Journal.

In Australia, copyright is viewed as subsisting in the original work. In relation to artistic works (the focus of this Journal), copyright is the exclusive right to reproduce the work in a material form, the right to publish it, and the right to communicate the work to the public. No other statutory rights pertaining to artistic works exist in Australia. (You have the right to do other stuff with your work of art, like eat it, destroy it or hang it upside down and do the hokey pokey with it, but those are personal rights.)

Also in Australia, there are specific statutory prescriptions of what constitutes an infringement of copyright, along with specific statutory exclusions from infringement, including “fair dealing”.

Importantly, and as I’ve already noted, although copyright was originally a common law concept, s 8 of Australia’s Copyright Act 1968 stipulates that copyright does not subsist otherwise than by virtue of that Act. (An exception exists for Crown copyright, but we’ll ignore that for current purposes.) This means that for Australians, the Copyright Act will always be your starting point in matters of copyright. Note that in Australia we use the term “fair dealing”. It is the same concept as the US’s “fair use.”

Regardless of where an RB member lives, both Australian law and the domestic law of the member’s home jurisdiction if not Australia can affect the copyright status of artwork uploaded for public view. The thing to remember though is that as RB is Australian website with its server in Australia, the primary jurisdiction in relation to copyright matters arising on the RB website is Australia, and that’s why I mainly discuss the operation of Australian copyright law.

Importantly, most developed countries including Australia belong to the same international copyright treaties, the first one of which was the International Convention for the Protection of Literary and Artistic Works signed in Berne, Switzerland on 9 September 1886. Known as the Berne Convention, this treaty has been revised 8 times since 1886 and remains the peak international copyright treaty. You can find a very good list of all international copyright treaties and their signatories here.

This internationalism can have the practical effect of forcing, for example, a website in the USA to respond to a claim by an Australian resident that his or her copyright has been breached, in exactly the same manner as if the complainant was a US resident. This comes in handy if you need to serve a DMCA notice on a US-based website to have one of your pilfered artworks removed. (As discussed here, I’ve successfully done this myself in respect of the misuse of one of my photographs by a blogger in the US.) I discuss the use of DMCA notices later in this Journal.

International copyright treaties also mean than when a copyright owner like Marvel Comics, based in the USA, sends RB a long list of images on RB in breach of its copyright, as they recently did, RB will (and did) respond by removing all the images.

These treaties obviously also work in our favour too. I noted above that a person infringes Australian copyright if he or she does an act in Australia. That is the limit of our jurisdiction, but because of international treaties, we can take action against infringements done in other countries. Cool.

Australia, however, most definitely reserves its position if another country is not “doing the right thing”. Under section 185 of the Copyright Act, if another country appears not to be giving “adequate protection” to Australian copyright owners, the Governor-General is empowered to make regulations essentially removing copyright from works created by residents of that offending country. This has happened, and I have no doubt other countries have similar “up yours!” actions available to them. (I am trying to nail down the existence of any regulations which have had the effect of removing copyright from photographs uploaded to RB by a member resident in a country other than Australia, and will update this Journal when I find out the result.)

Whilst my focus is on Australian copyright law, I also discuss US law. Note that other jurisdictions have similar legislation, eg United Kingdom and New Zealand, but I don’t purport to know much about them so I don’t venture there. At the end of this Journal I also provide a list of reference material for further reading, including links to relevant copyright bureaucracies in the US, UK, and elsewhere.

6. The birth of your copyright

Copyright is borne on the creation of your artwork. That is a known and concrete fact, and it applies in Australia, the US, the UK, and everywhere else. Legally, in Australia, copyright arises “when the work was made” (section 32). A “photograph” is an artistic work for this purpose. In relation to a photograph, the author (and thereby the owner of the copyright) means the person who took the photograph.

This is important. By all means, lend your memory card and camera to someone else to use, but do not make the mistake of assuming that because there was an image taken with the camera and stored on the card, you own the copyright. You do not. (Photographs taken in the course of carrying out employment duties or a specific paid assignment have different copyright issues, but I don’t discuss these in this Journal.)

Still on photographs and ownership of copyright, here is what the Australian Copyright Council has to say about commissioned work in Australia:

Where a photograph was commissioned before 30 July 1998, the client is the owner of copyright unless there was an agreement to the contrary. For photographs commissioned after 30 July 1998, the photographer is the owner of copyright except if the photograph was commissioned for a private or domestic purpose. If the photograph was commissioned for a private or domestic purpose, for example, a family portrait, the client owns copyright, unless there is an agreement to the contrary. Where an artist is commissioned to create a photograph, portrait or engraving for a particular purpose, and the client owns copyright in the commissioned work, the artist may stop the work being used for any other purpose.

Copyright exists regardless of the artistic merit of the photograph. Take an out-of-focus, crooked and overexposed photograph and you will find you have copyright in it.

Which brings me to perhaps the silliest thing I have ever read about copyright. Under the headings 7 Legal Tips For Your T-Shirt Business and Images from the internet, a t-shirt magazine states here that (with original spelling):

Don’t use ‘em without permission. Images from the internet are usually protected by copyright, unless their from a non-photographer’s photo album or something. There are ways of beating the system though: If you use a basic, generic picture, for example, one of a dog, you’d probably get away with it in some cases. If there is nothing peculiar about the photo you use and it looks like something you could very well have photographed yourself, most likely the copyright holder won’t really be able to distinguish the image and wouldn’t waste time trying to hunt you down. On the other hand if you use a picture that’s very specific or complex, for example, a picture of a white pit-bull with black spots wearing a football helmet, eating M&Ms, you could get caught easily.

Great advice that. Not. No wonder confusion arises. The point is, no matter how ordinary, bland, bad, “generic” or crap an original photograph is, and no matter who shot it, it will have copyright subsisting in it and the owner of that copyright has exactly the same rights in regards to it as the most famous pro photographer in the world has in regards to his career-defining Pulitzer Prize winning amazingly brilliant and inspirational photograph. The creative world of t-shirts is going down the toilet if the lowest common dominator is what you can “get away with”. Someone should really let the above t-shirt magazine also aware that, yes, we can track down our photographs, no matter how generic, with the click of a mouse. All it takes is to do a reverse-image search via www.tineye.com.

But getting back to the question of when copyright in a photograph arises, I don’t want to get bogged down in discussing exactly when a photograph is made because I have no doubt that whatever I say in that regard, some will want to argue the point.

All I will say is that, in Australia, a photograph is defined as being “a product of photography or of a process similar to photography” (section 10). This could be interpreted as meaning that whatever file your digital camera, for example, produces when you press the shutter, copyright exists in that file. This would certainly be the case if you shoot in JPEG and do nothing to the file once it leaves the card. But it also means that every “version” of a RAW file you create out of the camera has copyright subsisting in them.

7. What is moral copyright?

Whilst copyright can be licensed, assigned or sold to corporations, moral copyright is only ever held by individuals. Specifically, the original copyright owner. Just to be clear, moral copyright cannot be licensed, assigned or sold. All good, but what exactly is moral copyright?

In Australia, moral rights are in addition to copyright (section 192). This is an important point. It means, for example, that if you license a third party to use your photograph for a specified purpose, you retain all moral rights in respect of the photograph.

Under Australia’s legislation, you have the right to be attributed as the copyright owner and this attribution must be reasonably prominent.

Importantly, moral copyright extends to the right of integrity of your work. Anything done to your copyrighted artwork which prejudices your honour and reputation is an infringement of your moral copyright and actionable (section 195AK). This is one reason why it is incorrect to say that a parody which utilises a copyright artwork to ridicule that creator of that artwork is not a copyright infringement and hence ok. As I explain later in the Journal when discussing fair dealing, a parody is an example of fair dealing of copyright. But those creating such a parody can easily find themselves being sued for infringing moral copyright and/or defamation. An example of the first was the instance of the copyright owners of Tin Tin (created by Herge) threatening to sue Bill Leak, an Australian cartoonist, for his cartoons depicting Australia’s former Prime Minister, Kevin Rudd, as Tin Tin is less-than-positive manner. An example of the latter is the successful defamation case involving a parodic use of the song “Back Door Man” by Pauline Pantsdown.

The concept of moral copyright and integrity of artwork is recognised in other jurisdictions. For example, in the UK a reduction in size of a photograph was held not necessarily to be in breach of the right of integrity. However, in Germany it was held that the adding of a frame to a painting which extended its pattern was in breach of the artist’s right of integrity. In another interesting case in the UK, a sculptor was successful in obtaining a court order to have red ribbons removed from each neck of the 60 geese he created in an installation in a shopping centre. They had been placed there as part of the centre’s Christmas decorations.

8. Signing up with Redbubble

What rights do you give up by becoming a member of RB? As far as copyright goes, none. This is what we all agreed to when becoming a member:

You keep the copyright of any content you submit or upload to the website. In order to receive the RedBubble services you grant RedBubble a non-exclusive royalty free license to use and archive the content in accordance with or as reasonably contemplated by this agreement. When you submit or upload content on the RedBubble website you represent and warrant that:

  1. you own all copyright in the content, or if you are not the owner, that you have permission to use the content, and that you have the right to display, reproduce and sell the content. You license RedBubble to use and sub-license the content in accordance with this agreement;
  2. you and your content do not and will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or right of privacy;

Remember, as the copyright owner, you and only you have the right to enter into such an agreement. The non-exclusive royalty-free license granted to RB is a standard commercial licensing agreement. RB cannot exist without you agreeing to grant the license. The terms of that license are restricted to use for purposes associated with the website. Being non-exclusive, it means you are still free to grant license in respect of the same artworks to other people for other purposes, including other POD sites.

It is very important to appreciate, however, that the above extract from the Terms of Agreement with RB reflects a statement that you are making in relation to copyright in your artwork. If it turns out that RB gets sued for selling unauthorised artworks displayed in your profile, you will foot the bill. This means that if you have any doubts about you being the owner of the copyright in anything you upload for sale on RB, or otherwise unsure of whether you need permission, it may perhaps be better not to upload it until those doubts are removed.

9. Uploading to Redbubble

The RB server is physically located in Australia. Thus, uploading an artwork to RB means you are publishing it in Australia. (Take another look at the Terms of Agreement you signed with RB – it is specifically stated to be governed by the laws of Victoria, Australia.) This is an important issue for copyright purposes, for several reasons.

Firstly, what is the act of publishing? This is prescribed by s 29 of the Copyright Act 1968 which states, in relation to an artistic work such as a photograph, it is “deemed to have been published if, but only if, reproductions of the … work … have been supplied (whether for sale or otherwise) to the public.” This means that when you upload a photograph to RB and make it available for public view (ie you do not “Hide” it), you are deemed to have published it. For this purpose, it does not matter if you have made the photograph available for sale or not! In addition, you are deemed to have published it in Australia.

Secondly, if you are an RB member but not an Australian citizen or resident, you are only protected by Australia’s copyright laws if you did not previously publish your artwork overseas before uploading it to RB. This is the effect of s 32 of the Copyright Act 1968. So, for example, if you are a USA resident and published your artwork in the US before uploading it to RB, you are protected by the US’s copyright laws and not Australia’s. However, both Australia and the US are signatories to all the same Copyright Treaties, and so, in very general terms, Australia may be obliged to give effect to any US court decision on your copyright.

10. Do I need to register my copyright?

I saw this comment recently in a forum:

You need to register your artwork before it can have copyright.

Wrong. Unlike in Australia, in the US you can register your artistic work with the US Copyright Office (USCO), but registration is not a prerequisite for copyright to exist.

For US residents, registration of copyright is required in order to commence legal proceedings in the US for an infringement occurring in the US.

For non-US residents, registration is necessary in order to be awarded statutory damages, but not necessary to take legal action and be entitled to the protection afforded by US law, providing you are resident in a country which is a signatory to an international copyright treaty as well as the US. (Note that Australia and the US are both signatories to all the same treaties.)

US courts will treat registration of copyright as prima facie evidence of copyright ownership. Rebutting that acceptance is then up to the alleged infringer to prove.

You cannot register a copyright after the infringement. You have 3 months after the first publication of the photograph to register your copyright in it.

You do NOT need to register your copyright in order to assert © Joe Blow 2011. (I discuss the making of this statement further under the heading 13. Do I need to write © and my name in my Descriptions?.

11. What is the Public Domain and where is it?

The commonly-held and espoused view is that if an artwork is “in” the Public Domain anybody can exploit it in any way they want to, and without having to worry about any copyright issues, as copyright does not apply to such works. This is actually true.

But, the internet is NOT the Public Domain, ok? Let me be clear about that. RB is an “open to the public” site, meaning that any Tom, Dick or Houweida can enter its pages and look at the artwork. But making one of your artworks available to the public’s view does not mean you have placed that artwork “in the Public Domain”. The editor of a certain on-line cookery site notoriously and belatedly discovered this basic fact late last year, some of you may remember.

The Public Domain is NOT a place, it is a status. It is a status that can only be conferred by one or two ways: by operation of law or by declaration by you, the copyright owner.

The law operates to place artwork “in the Public Domain” simply through passage of time. It does this by imposing a limit on the length of time that copyright attaches to an artwork. Thus, for example, in Australia, copyright in my photographs exists until the day I die plus another 70 years plus the rest of that year. (The exact same duration of copyright would apply if I was a USA resident, as explained by the US Copyright Office here.) This means that my copyright vests in my deceased estate when I die. So, if you think there’s any possibility you’ll be “discovered” as a master of 21st century photographic art after you’ve carked it, make provision for the management and exploitation of your copyright in your will.

As noted, a person can otherwise declare that an original artwork is “in the Public Domain”. This actually means that the person has irrevocably given up all copyrights attaching to the particular work. This is relatively rare. To be effective, the person must make a public declaration that the work is in the Public Domain.

12. Do I need to assert that my artwork is not in the Public Domain?

The short answer is … no. Stating in your RB profile or in your Descriptions that “My images do not belong in the Public Domain” is all well and good, but it has the same legal and practical effect as stating that you are a human being and that you breathe air. Which means you are only catering to the random numbskull idiot contemplating stealing your artwork because it’s on the interweb and therefore it is “in the Public Domain”. Personally, I see no need to make the statement.

13. Do I need to write © and my name in my Descriptions?

The short answer is … no, but there are reasons for doing so. Way back in deepest darkest 1980s you needed to insert a copyright notice IF your work was first published in the US, otherwise it was deemed to be in the Public Domain. But for any work first published on or after 1 March 1989, that law, now repealed, doesn’t exist.

When I click on any image in my public profile, the large view of the artwork is accompanied by a standard RB template stating: © Copyright Peter Hill 2011. All rights reserved. This is done to assert copyright that already exists. The statement is not required to give effect to copyright. By asserting copyright in this manner, you are telling the world that it is you who holds the rights to be licensed and thus it is you the world must come to in order to obtain permission to use those rights.

I have a few issues with the RB standard copyright statement on our behalves. First, the symbol © means “Copyright” so stating © Copyright is repeating ourselves. It also makes us look like amateurs. (Yes, I know most of us are indeed amateurs but RB is a commercial website and we don’t need to look like amateurs!) Second, the statement only appears with the larger view of an image, whereas it should instead be appearing on the public view page of the image. But what RB have gotten right is the phrase “All rights reserved” and I discuss why below.

One good reason for asserting copyright in your Description is that under US law (section 1202 of the US Copyright Act), it that forms part of your “Copyright Management Information” (CMI) and it is an offence to remove someone’s CMI. Damages can be awarded for such an act, and to be eligible to be awarded damages in this instance you do not need to have your copyright registered. And guess what? All that technical detail you provide about the image also forms part of your CMI for US legal purposes.

Note that CMI does not have to be ON the photograph. You can put it in the image’s metadata for starter’s and in the Description.

Bottom line though on this particular issue is that if you wish to assert your copyright on the public view page (in the Description field) in the absence of RB changing its template, I recommend you state © [your name] 2011. All rights reserved.

14. Can I assert copyright with my RB username?

Yes, it is okay to use your RB username in copyright notices, for example © peterh111 2011.

As advised by the Australian Copyright Council, “there is no legal problem under Australian law” in using a pseudonym or nom de plume in a copyright notice on RB.

However, and as the Council also warns, if you don’t use your real name it will be harder for anyone outside RB to track down the real you in order to seek your permission to do something with one of your artworks. We all like our privacy, but it does come at a cost. In this instance, RB is prevented by Australian privacy law from releasing your personal details to an outsider.

If you are using your RB username as your public persona, the solution is to clearly state on your Profile page something akin to © [your username] 2011. All rights reserved. All queries regarding the content of my gallery can be sent to [your email address].

15. Do I need to state that use of my images in any way is not permitted?

This is a common warning I see in RB members’ profiles:

The use in any way, including reproduction, modification, publication, transmission, transfer, or exploitation of any of the content, for personal or commercial use, whether in whole or in part, of photographs in this portfolio without written permission is prohibited by law.

I am always disappointed to see a Public Profile tainted with a negative tone, especially as several aspects of the statement don’t add meaning to the message. Not only do you not need to include the words “prohibited by law” in your Public Profile, by stating it you are asserting a falsity as fact, and that is bad. An analogy, also aggressive and wrong but a bit OTT, would be placing a sign at the front of your residential property proclaiming that “I HAF THE RITE TO SHOOT DED ANYONE STEPING ON THIS PROPARTY WITHOUT MY PERMMISHUN – WHICH WONT BE GIVEN.” In both cases, the warning is based on a law that doesn’t work that way.

Copyright vests in you by way of statute. The same statute which also provides exceptions to your rights. This means that if someone copies one of your artworks on RB for a specified excepted use, the law allows them to do so and there is not a single thing you can do about it. In these circumstances, your permission for that use is not required and not only is the use not against the law, it is sanctioned by the law. In this situation, your rights start and finish with moral copyright only, eg ensuring you are appropriately acknowledged and that the integrity has not been threatened by the use.

Thus, your copyright is not some sword from a God empowering you to slay all who approach your artwork with envious eyes. Yet time after time I see this myth perpetuated on RB as actual fact and people believe it and act upon it.

If you want to assert your copyright in either or both your RB Public Profile or your Descriptions, the simple statement that RB already uses on your behalf – All rights reserved – will suffice. It acknowledges you have rights pertaining to your copyright claim, and it is a clear, succinct, and polite warning that you retain all decisions pertaining to those rights. It is a universally-accepted term and it does not come across as anything but prudence on your part.

The bottom line on this particular issue is that stating All rights reserved says it all and nothing more needs to be said.

16. What is a DMCA notice?

In 1998, the US enacted the Digital Millenium Copyright Act (great title!) or DMCA for short. One of its functions is to remove liability from ISPs for publishing infringements IF they promptly remove an infringing item from a user’s website on receipt of proper notice.

The proper notice is a DMCA “take-down” notice given to the ISP by the owner of the copyright (or their lawyer!). For non-lawyer types it is a relatively easy means of utilising legal means to scare the shit out of an ISP and have the offending image removed. And it works. You’ll find that all the major ISPs have systems in place specifically to receive and act upon DMCAs, such as Wordpress.

As I stated elsewhere, non-US residents can avail themselves of this option by virtue of treaty membership and I have myself succeeded in using the process. I explained how to do it, along with providing the wording I used in the notice to give it legal effect, here.

17. Derivative works? Transformative works? Why should I care?

I have read elsewhere that you need permission from a copyright owner before undertaking a derivative work. Such a statement is misleading if not erroneous.

Let’s be clear about this – a derivative work is one which is derived from another work and is thus treated as a version of that other work. Importantly, copyright does not subsist in a derivative work. It subsists in the original work it is based on.

As an individual, you do not need a copyright owner’s permission to create a derivative work but you will be in breach of that copyright if your use of it falls outside the parameters of fair use/fair dealing.

For example, you love a copyrighted portrait of the late Princess Diana so much you want to use it as the basis for a pencil drawing done by you. So you do, by tracing over the original. Fine, no problem. You like your drawing so much you frame it and hang it in your toilet. Fine, no problem. One day another RB member uses your toilet, sees the portrait and after finishing their “business”, urges you to upload it and make it available for public view. You do. Not fine. Breach of copyright. Regardless of whether or not you make your version available for sale, by uploading it and making it available for public view you have published it and there lies the problem.

If, however, you uploaded your version of the lovely Di, hid it from public view, bought a framed copy of it from yourself, and hung it in your toilet – fine, no problem.

There is no clear delineation of derivative versus transformative as a general concept. Factors peculiar to a specific artwork are at play. But what I will say is that it is very easy to spot a drawing based on a copyrighted photograph and it is very easy to determine a derivative work in that grouping.

Does adding textures to a photograph and not much else constitute a derivative work? Probably yes, in most cases. Which is why if you feel like doing it, you’d be better off using an image in the Public Domain or seeking the photographer’s permission.

Anyhting beyond that straightforward situation is more risky to call. As I said, it depends on what is being done to the photograph and how much of the person’s own creativity is going into the transformation.

If you want to see and read about a recent court case involving the issue of derivative versus transformative, go here. In that case the artist basing his work (which sold for millions) on a photographer’s work was held to have only created derivative works and thus had infringed the photographer’s copyright. Damages are yet to be determined, but they will be substantial! The artist had the temerity to argue in defense that the photographs did not have copyright susbsisting in them, because “the photos are mere compilations of facts…arranged with minimum creativity.” Fortunatley the Judge in the case told the artist where to stick that defense: ““Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection.” Duh! [Thanks to Glennis for spotting the article.]

Certainly it can be said though, that creators of T-shirts need to be just as cautious of the difference between derivative works and transformative works as everyone else.

18. Collaborations on RB – cool or a copyright conundrum?

Collaborations on RB can be a fun way of fostering our spirit of community, but they can also be a copyright nightmare. Recently I saw a forum post by a concerned member who had given permission to another RB member to use one of her images as the basis for an artwork by that other member. The end result was duly uploaded by that other member, who then “walked away” from involvement in RB, leaving the collaborative work sitting in her gallery. A year down the track, and the original member was finding it impossible for the work to be removed.

The above is an example of the copyright owner granting a licence to another RB member to use their copyright, without perhaps realising it. If you are approached for permission and you value your original artwork, it is recommended you protect yourself by spelling out the terms of the licence you are granting, and that you do this by bmail so that a permanent record of those terms resides with RB for future reference.

For example, and again this is for those works you value, as opposed to agreeing to a collaboration for purpose of fun only, you may wish to stipulate that the collaborative outcome be shown to you for approval before it is displayed on RB and that you retain the right to refuse its publication. You may also wish to stipulate that the outcome only be published on RB and nowhere else, that you reserve the right to also display the result in your gallery, that the image be removed after a certain period, and that your artwork be only used for the proposed purpose.

If you do take the time to create such conditions of the licence you are granting, then you have something to point RB to if there is a problem down the track, such as the one I recounted above. Don’t forget, that other member has already warranted to RB when joining that they have permission to use your content and that he or she has the right to display the collaborative outcome (see the terms of agreement I quoted under 8. Signing up with Redbubble.) So, if he or she breaches one of your licence terms, and you can demonstrate that fact by pointing to your bmailed conditions of the licence, this should be sufficient for RB to remove the work at your request.

Another issue you may want to think about before agreeing to such a collaboration is whether what the other member is proposing to do will result in a derivative work or a transformative work. As I discussed earlier, you retain copyright in a derivative work based on your original artwork, whereas copyright subsists in the other member if the outcome is transformative. Got you thinking have I?

Don’t forget you may wish to also consider your moral copyright in the collaborative outcome, even if it is a transformative work. This includes ensuring a stated acknowledgement of your original copyright in the appropriate way and that what the other member is proposing will not impinge on the integrity of your artwork.

The other type of collaboration on RB is when two or more members agree to create an original artwork together. Once again, if this rocks your Fun Boat and not much else, then copyright will not be an issue for you. On the other hand, the concept of joint copyright is real, so you may wish to participate in the fun by spelling out some conditions.

Bottom line is that many members doing collaborative works need to stop and think about the possible issues with ownership, use and copyright down the track, and thus act beforehand to protect their interests.

19. How to legally use someone else’s artwork without their permission

This is the fun bit. This is the bit where you get to learn what your rights are in relation to using someone’s copyright. In this discussion I am focusing on Australian law. Here are the more common exceptions to copyright.

Research or study

A fair dealing with an artwork for the purpose of research or study does not constitute an infringement of copyright (section 40). Note there are factors to be considered in determining whether fair dealing has occurred.

Criticism or review

I can use a photograph on RB for the purpose of writing a critique or review, either of that photograph or of something else, without obtaining permission, provided I make sufficient acknowledgment of the artwork (section 41). However, it is against RB protocol to do so – The Play Nice Policy.

Parody or satire

A fair dealing in artwork does not constitute an infringement of copyright in the work if it is for the purpose of parody or satire (section 41A). As I discussed earlier, however, creators of parodies and satires have to be mindful that this exclusion does not apply to moral copyright. It would be a very brave person to argue on the one hand their work is a parody but on the other hand argue their parody has not damaged the integrity of the original creator. That’s a fine line I have not been able to discern. As the parody and satire fair dealing exclusion has only been legal for a few years, the courts have not been challenged yet to draw that line.

As well, and again, the use has to constitute fair dealing. This is something Pauline Pantsdown found can be easily breached.

News reporting

An RB member uploads a photograph of a natural disaster. A news organisation publishes a low res copy. Tough titties.

Sculpures and buildings

In Australia you cannot be in breach of copyright in a building by photographing it. The same applies to sculptures and other installations. There are also no restrictions against publishing your photograph of a building.

However, ……

20. Permission to shoot – don’t confuse it with copyright!

Astute readers getting this far into this Journal will have noticed I have not discussed the limitations placed on photographers in taking photographs. It is important to distinguish between the two.

For example, as I noted above, in Australia you are not taken to have breached copyright subsisting in a building by taking a photograph of the building. But, you can be prosecuted for trespass if you step onto private property to take the photograph, or you could be sued by the owner of that property for breaching a condition of entry to the property that stipulates that photography is not permitted.

By all means snap away from the public footpath, and be comfortable that you are not breaching anyone’s copyright at the same time. Note also that under Australian copyright law, if you are taken not to have infringed copyright by photographing a building, you are also not taken to infringe copyright if you then publish the image on RB. The same applies to sculptures in public places.

The thing to be wary of though, is that you may think you are standing on public property and thus free to shoot anything from that position, when you may in fact be standing on land the usage of which is covered by statute. For people in Sydney, the most notorious land subject to such laws is that controlled by the Sydney Harbour Foreshore Authority, for example Darling Harbour and Circular Quay. In those instances, you will find restrictions against photography for commercial purposes. (If all you do is upload your images onto RB and make them available for sale, this falls short of constituting a commercial purpose. Some members of RB do not agree with that, but I am asserting this as fact given my many years experience with exactly that concept.)

For Australian RB members, I think the best and most comprehensive guide to photographers’ rights is here. The author, Andrew Nemeth, writes that copyright still subsists in “unauthorised” photographs, and I concur.

Another resource for Australians, in terms of street photographers’ rights, has been published by the Arts Law Centre of Australia here.

Street photographer’s rights in the UK are discussed here.

21. What to do when someone wants to use your artwork

It’s nice when it happens, particularly when someone from outside RB has something in mind for your artwork. Unfortunately, I’ve grown to be a bit cynical about such approaches as 9 times out 10 nothing actually eventuates.

One thing I’ve noticed is people expecting me to state my terms of use before they’ve told me what exactly it is they want to do with my artwork. Being an unsolicited approach, it is actually up to the person wanting to use your artwork to offer proposed terms. Doing otherwise is a trap designed to get your artwork for as little cost as possible.

So my first recommendation is to simply ensure that any approach is accompanied by an actual offer. If it isn’t simply ask eg Thanks for your request. In order to consider it can you please send me details of your proposed use and terms. That’s when I’ve sorted the fakes from the bona fides.

Be clear about what it is you are being asked to give up. Is the person seeking an assignment of your copyright or a licence to use it? The two are vastly different. A assignment of copyright should command a greater sum to be paid because you are giving up a bundle of rights for the period of assignment, whereas a licence should be permitted use for a specified purpose in a specified jurisdiction without impacting your copyright.

Check the background and the business of the person who has made the approach. Ask for links or google them. In particular, if the desired use of your artwork is for a commercial purpose, start getting serious. If it sounds suss, then put it out to the RB community for input (see below).

Think about the integrity and value of your artwork. Will either be diminished by your artwork appearing on a coffee mug? What else is going to happen to your artwork? For example, you may be happy to see coffee mugs sold with your artwork on them, but what if the mugs are also going to have the words “Hitler was hip” on them. Are you being told this? Find out.

These are normal questions to ask, and you are not being “difficult” or even anal in asking them. But what you are doing is demonstrating to the person who approached you that you are neither a fool nor or a sucker.

22. Where can I get help about copyright?

There is a Group on RB called the Copyright Protection Group. It was specifically created to provide assistance and information to RB members about copyright and trademark violations. Members posting queries in its forums will derive the benefit of several responses. Unfortunately, the hosts of that group do not allow Journals, so this little piece can’t be found there.

Members of RB will also often post copyright questions in the General Discussion Forum, and you’ll always get answers of sorts there, although at times you need to sift through the opinions to reach some facts, and the comments can go off track and leave the actual question behind, unanswered.

If a member of RB identifies the work of another RB member that appears to be in breach of someone’s copyright, I would encourage you to report it. The more self-policing we do, the better job we do of protecting the integrity of the whole site and thus our own work as well.

Reporting a suspect artwork involves clicking on the Report Concern link which appears immediately underneath the public display page of every non-hidden artwork on RB. This is initially an automated system and it is always anonymous. When you click on the link another page opens, being a pre-filled email. Provide as much relevant information you can as to why you suspect the artwork, including providing the link to the original artwork if possible. Once you submit the email, it is sent to the member who uploaded the suspect artwork. You are not identified at any stage. If the member does not respond within 4 days, the image is automatically removed.

If the member does respond to the email, you are sent the response. If you are not satisfied with the response, you can state why and request the concern be escalated to a real person at RB, who will then decide whether to remove the artwork and/or the member. Both have happened. This system works.

Just the other day I initiated the removal of the entire RB portfolio of a WGASA member who had blithely uploaded for sale reproductions of material owned by Nickelodeon. It was pretty blatant. This is the sort of behaviour we need to keep out of RB.

RB has a general information page here, but note that half the links to other information do not work.

The information pages of the US Copyright Office, particularly its “FAQ” page, are quite useful, as are the information sheets provided by the Australian Copyright Council that I reference below.

23. Further reading/references

  1. Australian Copyright Council – Information resources
  1. Australian Copyright Council, “An Introduction to Copyright in Australia”, Information Sheet G010v16, March 2007
  1. Australian Copyright Council, “Fair Dealing”, Information Sheet G079v05, June 2008
  1. Australian Copyright Council, “Protecting Your Copyright”, Information Sheet G084v03, February 2011
  1. Australian Copyright Council, “Infringement: what can I do?”, Information Sheet G052v08, December 2005
  1. Australian Copyright Council, “Ownership of copyright”, Information Sheet G58, February 2006
  1. Australian Copyright Council, “When Do I Need Permission?”, Information Sheet G103v03, February 2011
  1. Australian Copyright Council, “How To Get Permission”, Information Sheet G051v011, July 2006
  1. Blanchfield, Martha, “Top 10 Misconceptions about Photography and the Law: A Conversation with Attorney Carolyn E. Wright”, circa November 2010, available here
  1. Brennan, David, “Copyright and Parody in Australia: Some Thoughts on Suntrust Bank v Houghton Mifflin Company” (2002) 13 AIPJ 161
  1. Commonwealth of Australia, Copyright Act 1968, available here (be warned – its 700 pages long)
  1. Sainsbury, Maree, “Parody, satire, honour and reputation: The interplay between economic and moral rights” (2007) 18 AIPJ 149
  1. Seekamp, Michelle, “5 Things Photographers Can Do To Protect Their Images Online”, 1 September 2010, available here
  1. Seekamp, Michelle, “US Copyright Tips For International Photographers”, 13 September 2010, available here
  1. Stanford University, “Copyright and Fair Use”, circa 2007, available here
  1. US Copyright Office, “Copyright Registration for Derivative Works”, Circular 14, reviewed May 2010
  1. US Copyright Office, “Fair Use”, Document No.FL-102, reviewed November 2009
  1. US Copyright Office, “Reproduction of Copyrighted Works by Educators and Librarians” Circular 21, reviewed November 2009
  1. World Intellectual Property Organisation, Berne Convention for the Protection of Literary and Artistic Works_, available herewo001.html
  1. Wright, Carolyn E, “Copyright Infringement for Substantially Similar Works”, 13 July 2010, available here

24. Copyright and me

In terms of education, I have a Masters Degree, awarded by the Law School of UNSW, and am currently undertaking a PhD also with UNSW. My specialty is not intellectual property. For the past 15 years I have been Managing Writer for the Australian subsidiary of a global publisher servicing the needs of lawyers and accountants around the world. I lead a team of 10 similarly-qualified professionals creating original content. In that capacity I have written a number of books and hundreds of articles and papers. I am also the Technical Editor for several publications, and I sit on the company’s Publishing Board and also the Editorial Board of one of Australia’s peak professional Journals.

The industry I work in can be a war zone of competitiveness. I have had a doppelganger making defamatory comments on a competitor’s blog, been the recipient of an emailed death threat, been personally defamed by a newspaper article planted by someone whose submitted article I rejected for publication, and been named in committal proceedings against that same person for fraud (he’s still in jail.)

In matters pertaining to copyright, I am directly involved in identifying and initiating legal action against people stealing our content. I also hold responsibility for ensuring my team and commissioned authors do not do likewise. This includes rejecting manuscript that has either not correctly acknowledged permitted use of copyright or that has breached copyright.

Over the years in liaison with our in-house legal counsel I have negotiated settlements in all cases involving theft of our material. This has included nailing some of Australia’s largest law firms, largest accounting firms and the major professional bodies for this offence. I kid you not. The problem is not systemic. It rests at the individual level. What tends to happen is that some stupid lazy employee at one of those large organisations commits the offence, and because their work isn’t checked before being published their employer immediately becomes liable. I know of at least 2 people who have been fired for stealing our content.

These morons stealing our content think that changing a word here and a word there out of several hundred or even thousands will either render their theft unnoticeable or take it outside the realm of copyright breach. In instances where the thief has been careful not to use a substantial part of the content, we warn the offender we are monitoring their publications. I recall one instance where the thief had neglected to correct a typographical error made in our content before republishing it. You can imagine trying to convince us the odds of that being co-incidental were within a reasonable range. Epic fail.

Even my own content has been stolen. One of the Federal Government’s bureaucracies has one of the largest websites in Australia in terms of content. I once wrote an article focusing on the quality of some of its Q&A content, and criticised it for one particular Answer which was a simple “No”. My article gave an alternate and much-expanded answer. A few weeks later I noticed the “No” answer had been replaced with a much-expanded answer. Mine. All of it. Word-for-word. And of course, at the bottom of the relevant webpage, there was the Commonwealth of Australia asserting copyright. I was flattered.

I was flattered and amused when marking some undergraduate assignment papers for UNSW as a favour for a sick lecturer when I recognised my own words staring back at me from one of the papers. Plagiarism is one step beyond copyright breach, so that student got a nasty surprise rather than a mark. (Nowadays many universities only accept electronic copies of papers so that they can be scanned by software designed to search for copied work of others, before being accepted.)

Conclusion

I said at the outset that I wanted to dispel some of the common myths and misconceptions about copyright, and I hope I’ve been able to do that. It wasn’t my purpose to cover the whole gamut of copyright issues for RB members, as I’ve tried to keep it narrowed to artworks and photography.

Thanks for reading. For a complete list of and access to all my photographic Journals and tutorials, go here

Cheers
Peter

History

  1. 13/03/11 – Journal originally published.
  2. 23/03/11 – Link to article inserted about a US District Court decision on derivative v transformative, including discussion of same.

Comments

  • Garth Smith
    Garth Smithover 3 years ago

    Thank you very much for this Peter.
    I am sure it will help many people. Me included.

  • No worries mate. It was meant to be short and sharp but turned into a monster

    – Peter Hill

  • Johan  Nijenhuis
    Johan Nijenhuisover 3 years ago

    CLIP AND CLEAR THANKS FOR THIS

  • My pleasure

    – Peter Hill

  • Annie Lemay  Photography
    Annie Lemay P...over 3 years ago

    Keep writing, this is all good!

  • Yes ma’m

    – Peter Hill

  • Peter Evans
    Peter Evansover 3 years ago

    Very impressive Peter.
    Thanks very much for the time and obvious huge amount of work that you have done to compile this advise.

  • No worries, thanks

    – Peter Hill

  • Wendi Donaldson
    Wendi Donaldsonover 3 years ago

    You did it!! Awesome. Thanks for such an amazing amount of research and detail, Peter. Most helpful – entertaining too!

  • Bit worried about a Journal with no pretty pictures!

    – Peter Hill

  • Mieke Boynton
    Mieke Boyntonover 3 years ago

    Thanks for all of this terrific information, Peter. I did a diploma in Information and Knowledge Management in 2009, and found the entire issue of copyright to be an absolute minefield… Your research and attention to detail here is wonderful.

    Having said that, I will continue to leave the words
    “Copyrighted material. The images published here do not belong to the public domain. Copying, altering, or redistributing any of these images without permission is prohibited.”
    on my overview page as even if the ‘nitty-gritty’ of it is wrong, the broad idea of it is right, and it alerts people to the fact that copyright matters to me. Unfortunately, that’ll have to be a thorn in your side until people start to understand that stealing others’ artwork is against the law.

    Having been a school teacher for a number of years, and knowing that students begin ‘stealing’ images without recognition at about Grade 3 and often never stop, I don’t trust peole to understand what “ALL RIGHTS RESERVED” actually means. Spell it out, I say!!!

    Also, I would like to use this opportunity to highlight the fact that photography of Aboriginal Rock Art and uploading it as ‘your own artwork’ is not okay … In many places, Aboriginal Australians continue to ‘freshen up’ Rock Art as their traditions dictate them to do, and I am not entirely sure of the exact details, but I would assume that copyright of Art that falls into this category belongs to the Aboriginal group who are its custodians.

    Regardless, photographing someone else’s Artwork (even if it was painted a long time ago) and claiming credit for it without acknowledgement is certainly in breach of some aspect of copyright law!!!

    Thanks again, Peter. This has been an EXCELLENT read!!!

  • You raise some interesting points, Mieke. In relation to your personal version of the copyright warning on your profile, my personal preference is not to publish an unenforceable warning. The sample one I quoted uses the term “prohibited by law” and that is the falsity I am mostly concerned with.

    I understand your point about wanting to make sure the morons see your warning that copyright matters to you, but I tend to believe they aren’t going to take much notice of it, however expressed. And when the morons are only a fraction of those who do read my profile, I defer to the sensibilities of the general public. My preference is simply to reserve my rights rather than a blanket no no no no statement. Anyone unable to understand that warning isn’t likely to understand the full whole hog version, I feel. Just a thought.

    – Peter Hill

  • patjila
    patjilaover 3 years ago

    Thank you Peter so much for the information you shared about the copyright issues it’s a very useful article!

  • No worries, thanks

    – Peter Hill

  • Craig Hender
    Craig Henderover 3 years ago

    Nice one mate very good reading as usual, and i just love your wit. Hopefully this passes through the right eyes and ears!

  • In one ear and out the other I suspect!

    Thanks Craig!

    – Peter Hill

  • Jen Waltmon
    Jen Waltmonover 3 years ago

    Thanks Peter. Now I’ve got somewhere to come when I’m up for some light reading ;)

  • Michael John
    Michael Johnover 3 years ago

    Thanks Pete.