A few weeks ago, Taylor Swift (yes, her again) filed for trademark protection (again) for various catchphrases related to her latest album, 1989, such as “This Sick Beat” and “Swiftmas.” Even though musicians do this all the time for merchandising purposes, for some reason it’s particularly newsworthy when Swift does it. But what grabbed my attention this time wasn’t the inexplicable backlash she got (if Ed Sheeran had done it, would people have been so quick to judge?), but the factually inaccurate headlines that went along with it.Read more
Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.
But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:
I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.
This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.
Advice From Attorney > Info From Internet > Nothing
So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.
I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!
A client asked me to review a contract given to her by a potential employer. It was a fair contract, offering her a good salary and a very generous profit-sharing arrangement if any of her projects generated income. Despite the beneficence of the employer, I told her not to sign the contract unless a small, but important provision, was removed. In fact, my exact words to her were, "Run. Run like hell." It was a single sentence near the end of the agreement that caused all the trouble:
Employee waives all moral rights to her work, including, but not limited to [list of potential projects] and will hold Employer harmless for any and all uses of her work.
"Moral rights," such as they exist in this country, are a gift, and asking an artist to waive them is a slap in the face. Here's why. Under Section 106A of the U.S. Copyright Act, artists are granted two very specific protections.
- The Right of Attribution. An artist has the right to take credit for her work regardless of who actually profits from the use of that work. It even applies if the artist sells off the copyright. For example, if you design a logo for a company and sell the copyright to the company, you still have the right to be named as the author and even display the logo in your portfolio
- The Right of Integrity. An artist has the right to prevent anyone from distorting, mutilating, or otherwise modifying her work in such a way that could harm her reputation. For example, if you create a logo for a client who later wants to alter that logo to include an obscene gesture, you can prevent them from doing that since it could negatively affect your reputation as the creator of that art.
Moral rights in the U.S. are notoriously limited, applying only to artists who create visual works such as paintings, graphic design, sculptures, and still photographs. If you're a musician or a filmmaker, well then you're out of luck. In those situations, it will be incumbent upon you to specify in writing that you retain the right of attribution and integrity since our current laws aren't interested in providing that protection (there's a movement in Hollywood to extend moral rights to film, but I don't see that happening anytime soon). As a rule, moral rights are a foreign concept in the U.S. - economic rights take precedence here - and really only exist because the Congress of 1990 didn't want to look like a bunch of barbaric assholes in front of the Europeans, whose moral rights laws are far more robust (the Congress of today is burdened by no such concern).
But as limited as they are here, they're still a gift. And by asking my client to waive her moral rights, the employer was asking her to NOT TAKE CREDIT FOR HER OWN WORK. I don't know about you, but that seems really problematic to me. The law does permit you to waive your moral rights, but why would you want to? If someone asks you not to take credit for your work, shouldn't they have a damn good reason to make that request? As an artist, accreditation is the backbone of your business. It's how you sell yourself. I've known hundreds of artists in my career and I can't think of a single situation where they would have benefitted from waiving their moral rights. If you can, then you're smarter than I.
Luckily for my client, the employer agreed to remove that sentence and restore her moral rights. But my advice to you is the same as that I gave to her. If a potential employer/client/partner asks you waive your moral rights, ask them to reconsider. And if they won't, run. Run like hell.
UPDATE: I just want to clarify something here. While the U.S. Copyright Act only gives moral rights protections to visual artists, ALL artists have the right to take credit for their work and display that work in a portfolio unless that right is waived by contract. The main difference between the moral rights protections under the Copyright Act and these other moral rights is that visual artists can use the Copyright Act to recover statutory damages - as much as $150,000 for each infringed work. If you're an artist who's not covered under the Copyright Act, you probably wouldn't be able to recover very much if your right of display or credit was violated.
Q. I recently discovered that someone was selling T-shirts featuring my illustrations. They've credited me as the artist on their website, but I've received no financial restitution and they didn't ask my permission. I want them to either pay me or stop selling the T-shirts altogether. What are my options for getting them to stop?
A. Let's be honest, you don't want to sue anybody. You don't have the time and you probably don't have the money, and even if you did, the effort and emotional toll it takes is astronomical. So before you go down that road, there are some things you can do to save time and money, and hopefully avoid court.
- Send the infringing party a “cease and desist” letter. You'd be surprised how often people don’t even realized they're infringing someone else's work. Oftentimes, they think the work is in the public domain simply because it's available online. And even when people do infringe your work on purpose, an officious sounding letter is usually enough to make them stop. While you can always draft a cease and desist yourself, it has more teeth if it comes from a lawyer.
- Negotiate! If you reasonably feel that the infringer isn't acting with malicious intent, give them a call and see if they're willing to talk turkey. You want to get royalties for all T-shirts already sold, and you definitely want to get a fee for all future sales. If this works, it's a classic win-win. They stay in business and you get a financial benefit. At the very least, you'll get a sense of their motives.
- Use social media to rally people around your cause. This can be a surprisingly effective way to get public support and put pressure on the infringer to do the right thing. You may have heard this story about a graphic designer who wasn't paid for poster designs he made for Spike Lee's newest film, Oldboy. The designer sent an open letter to Lee recounting his abuses. This was a smart choice on the part of the designer. Even though Lee, like most directors, has no role in the marketing of his films (marketing is almost exclusively the domain of the studio), by going right to the top, the designer started creating groundswell. And if he can get Lee to go to bat for him, the pressure placed on the studio could be overwhelming.
- Lastly, BE NICE, no matter how much of a jerk the other party is. That old saying about catching more flies with honey than with vinegar - it's absolutely true. I can't tell you how many times I've seen victims of infringement get swatted by a judge because they acted like unrepentant assholes. If you look worse than the guy who actually stole from you, you're going to lose, plain and simple. In general, when interacting with a potential legal adversary, you should follow my patented Famous Three Step Rule For Dealing With Infringers: First time be nice. Second time, be nice. Third time, be nice. You can always be direct, but politeness really can make the difference in your outcome.
If you do all of these and the infringer still won't pay you back or cut you in, it's time to sue. Call a lawyer and get that ball rolling ASAP (you have three years from the discovery of the infringement to bring a lawsuit). And if you have anymore questions, don't hesitate to Ask Greg.
As far as the law is concerned, copying is copying, no matter how noble your intentions.
I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.
Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.
But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet." That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.
Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.
The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.
Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.