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.

Sincerely,
~R

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:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. 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.

(via The Outhousers)