The weekend has come and gone. We’re still not recovered from San Diego Comic-Con, and Otakon is coming up this weekend! While you start off the week, here’s some news and reviews from around the web you might have missed.
Filmed at NYU School of Law on September 23, this panel asks whether copyright has lost one of its principle functions: to protect authors and original ideas. In the digital age, does copyright have a purpose beyond protecting corporations from illegal copying and file sharing? The panel featured:
In 2011 I stood against the the Stop Online Piracy Act (SOPA) and its sister legislation the Protect Intellectual Property Act (PIPA) partially because the legislation was poorly thought out, partially because the current Digital Millennium Copyright Act (DMCA) system is flawed and broken, and partially because the legislation would be used to stifle criticism. The site Escher Girls is currently a prime example of how DMCA/copyright claims, can be used in a negative way.
The DMCA was signed into legislation in 1998 by then President Clinton, the legislation was flawed then, and remains so. One of the most glaring is the lack of real penalties for making false claims (though there is threat of perjury). Part of the legislation lays out the process by which take down notices take place. Websites/web services/web platforms are given protection from prosecution if they remove material that is claimed to be offending and violating copyright. This is why Google doesn’t get in trouble, but takes down material when asked. In this situation, the web platform involved is Tumblr. Google also releases handy information on how many, and by whom and for what, requests are made.
Randy Queen is the artist of Darkchylde, one of the many characters and series to spring from Image Comics in the 1990s. The character generally was depicted in the unrealistic/distorted poses, a style some like, and others not so much. Enter Escher Girls, a blog dedicated to showing this off and critiquing the art. That critiquing part is important. According to a post on the Escher Girls website, they received a DMCA take down notice to remove their posts critical of Queen’s work. Escher Girls has also been contacted by other sites that had the same thing done. They later updated their post that Queen had also allegedly requested a DMCA take down of the article about Queen’s use of DMCA take downs. Tumblr didn’t give in to that request. Other websites that are more positive about Queen have images still up.
Here’s a screen cap of the notification from Tumblr.
Queen then went so far as to send an email to the site threatening legal action if they “didn’t put a stop to all of this,” and claiming the site was defaming him by saying “he was using the DMCA to stamp out criticism of his artwork.”
Here’s the text of that email:
Dear Eschergirls and Kim,
I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer.
Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today.
At this point, I will ask you to please move along, as no good will come of this.
Additionally, instead of taking shots at art someone did 18 years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time and energy on creating your own characters and comics which you can make your own personal sacrifices to bring to the world.
A search for #darkchylde on Tumblr shows two things. The first is, there’s still numerous positive posts about his art still up on the web platform. The second is, that the action has backfired on him, quickly catching first leading to massive criticism about his action.
Here’s where Queen’s actions really fail. Escher Girls was criticizing his work under Fair Use. Fair Use is “is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship”
This is the actual language from the Copyright Act of 1976:
17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Escher Girls used a snippet of the work, and was used as criticism. Pretty clearly falling into Fair Use. As TechDirt points out Queen needs to familiarize himself more with copyirght law. In his email he states:
…publicly challenges my right to protect the perception of my IP.
Unfortunately there is no right to protect perception of your IP. Perception is how an individual views your IP. Even if the initial take down didn’t fall under Fair Use, the then discussion of the art, or the follow up emails have nothing to do with DMCA. That’d fall into thought police, and we as individuals are afforded the right to free speech (though that is limited in some extreme cases).
We’ve had some DMCA issues in the past as a site. Scribd currently employs a flawed system that catches previews sent to us by publishers. We had the lawyers of a major company send a DMCA take down for a video their publicist sent us to post, and had it taken down on YouTube. We’ve seen another blog make a claim for a video they didn’t own also sent out by a publicist. The current system is broken, and this is just another example that reform needs to happen.
The last time there was a mention of Queen on this website was 2011, and that was for a solicit for Darkchylde trade. All Randy Queen has done with all of this is up his profile… in a negative way.
Update: Queen has since issued a statement apologizing for his actions. You can read it below.
Just wanted to clear up a few things that happened this past week. I have been having a very hard time in my personal life with the loss of my mother and my marriage having fallen apart and found myself in a very vulnerable and fragile state of mind. There were posts on the web criticizing my artwork that were brought to my attention and added to my stress. I reacted without thinking it through, but have now stopped, realizing my response was the wrong one to take. I am doing my best, each day, to get myself back on my feet and getting my life in a better place and realize now that I have just try to move on and get back to my art, the thing I find the most joy in these days. I want to thank those professionals, friends and family who have been giving me their support, understanding and love.
We wish Queen the best and that things get better for him.
We previously brought you the story of creator Skottie Young who took to Twitter to vent about his art being sold without his permission on clothing and other items through the website RedBubble. We reached out to RedBubble and received a response over the weekend. Through email, we learned about 20,000 works per month are removed. Some of this is in direct response to DMCA notices and some will be as a result of the pro-active polices, cited below, that the company takes.
RedBubble CEO Martin Hosking wrote us with the below info, which is similar to what we discussed years ago when we talked to them about the same subject:
First thing is once we were aware of the Skottie issue this morning we immediately took action. We do this under our normal processes. They may be more extensive than people realise and go beyond the strict requirements of the DMCA. I highlight this below.
You know this, but so it is in one place: Redbubble is a community built on respect, recognition and appreciation of original artists. We take matters of intellectual property extremely seriously. We value originality and creativity, and we strongly oppose infringement of copyright, trademark, publicity rights, or any other intellectual property rights.
I’d like to clarify that Redbubble does not itself manufacture, sell or distribute the products on its Web site. Rather, Redbubble is the host of an online marketplace. Regardless, it is absolutely Redbubble’s policy and practice to respect intellectual property rights of others and to provide reasonable assistance to rights holders in this regards.
As you have written on in the past, in an effort to strike a balance between the rights of rights owners to prevent infringing uses of their intellectual property and the rights of visual artists to make non-infringing, and/or fair uses of related content, Redbubble has implemented a fairly extensive set of copyright, trademark and DMCA procedures, which are set forth at : http://support.redbubble.com/kb/top20/copyright-trademark-and-dmca.
Central to these procedures is our Notice and Takedown process, modeled after the one set out in the Digital Millennium Copyright Act (DMCA). Submitting a takedown notice is a fairly straightforward process, and once we receive the information required under the DMCA, we act expeditiously (typically within 24 hours) to remove any listing that a bona fide rights owner or licensee identifies as infringing. This takedown is always subject to our counter notification process, which gives sellers affected by takedowns the opportunity to establish their right to sell the material at issue. More detail about the take down and counter notice process can be found at the following URL: http://support.redbubble.com/kb/top20/redbubble-ippublicity-rights-policy#report
Although we’re not required by law, we take further proactive efforts on many occasions and work closely with numerous content owners, brands and individual artists to minimize instances of third party infringement of intellectual property rights via the Redbubble marketplace. We also immediately remove any user who is identified as a repeat infringer, per our policies.
Again, I want to emphasize, Redbubble takes matters of alleged IP infringement very seriously and we do not take lightly any suggestion (not that you have made this) that we have any other stance on this issue.
It’s good to see RedBubble take this issue seriously. This is an issue that’s beyond them, and one of the nature of the internet itself. With everybody able to quickly share, re-use, and re-post, this debate has raged for years, and I expect to continue for years to come.
Something that’s intrigued me was how a platform like this handles copyright claims. Luckily I got a chance to discuss it with their team, inquiring how copyright claims and the DMCA affected them. Talking to staff, they said the system works as is and they rely on their community to raise flags and also abide by requests made by copyright holders or their agents. They immediately abide by the request and then contact the artist, facilitating the legal exchange. The community is key, not just when it comes to copyright, but also the quality of the product itself.
In this case, either the community doesn’t know, or doesn’t care. Young provided examples of numerous individuals doing this, though it’s unclear if he’s reached out to RedBubble directly to make them aware of the situation, other than on Twitter. The company’s feed has been posting items since he first tweeted, but they haven’t responded publicly.
Redbubble respects Copyright and Trademark laws and will remove any work found to infringe Copyright or Trademark protection. If you believe your copyright or other intellectual property rights are being infringed, you are able to make a formal complaint by using the processes described in our policy – http://support.redbubble.com/kb/top20/copyright-trademark-and-dmca
In fact, if you go to the items directly, there’s a handy link to turn them in.
While we don’t condone individuals who do this, there’s a mechanism to turn folks in and get content taken down. This is a similar method as exists at YouTube and Google, and more, and laid out by laws such as the Digital Millennium Copyright Act (DMCA).
There’s absolutely more that can be done on the RedBubble’s end. Google’s search by image didn’t exist when the website launched. Using that to find if there’s hits for items uploaded can create a moderation system to prevent this.
The use of images on the internet has become a blurred area too. While things like this are clearly wrong, and illegal, so is the use of GIFs (no it is not Fair Use), and possibly even posting images that we don’t own. How different creators, and companies, handle these situations varies too. Some have no problem with these situations, others come down like a hammer. But, there are laws, and tools in place for creators or companies to reach out and get content pulled.