The Cartoonist Has No Idea How Fair Use Works

from the wanna-try-that-again? dept

On Friday, we had a post about some political comic strips that were posted to the Tumblr blog A Good Cartoon. Whoever is behind that blog (on the blog the name used is “rorus raz,” and the post asks people to credit rorus raz, but on Twitter it’s “Alan Smithee” which is a popular pseudonym) first posted a bunch of political cartoons by syndicated political cartoonists that demonstrated a near total lack of understanding about net neutrality, and then posted a followup post that took many of those political cartoons and replaced the bubble text with the simple statement “the cartoonist has no idea how net neutrality works.” Well-known TV, book, podcast and internet personality John Hodgman then reblogged it on his site.

I first saw it on Hodgman’s site and set it aside to write about it. When I got around to it late on Friday afternoon, I noticed, oddly, that the original on A Good Cartoon was now gone. There was no note or anything. It was just gone. However, Hodgman’s version was still up, so I wrote about it and posted some (but not all) of the comics and added some additional commentary.

Over the weekend, however, the version on Hodgman’s site also disappeared, and Twitter user Michael at BU alerted me to the news that over at A Good Cartoon a DMCA takedown notice had been posted. It appears that the copyright holder representing the cartoonist Chip Bok sent Tumblr a takedown. What’s posted to the blog is what Tumblr sent to A Good Cartoon, and not the original takedown notice — so it’s not clear if it was sent via Bok himself or Creators Syndicate, which syndicates Bok’s strips. Bizarrely, the notice that’s posted to A Good Cartoon is not text and not a single image, but rather each word is a separate image. I have no idea why, but here’s the transcribed note:

Hi,

We’ve received a notification of alleged copyright infringement on one of your blogs. Here are the details of the content in question:

Copyright holder: Katie Ransom

Post URL(s): http://agoodcartoon.tumblr.com/post/112519623990/the-cartoonist-has-no-idea-how-net-neutrality

Description: The work is a copyrighted cartoon by artist Chip Bok. The caption of the cartoon was altered, but the copyright and signature remain, making it look like this work is by the artist, when it is not. You can find an original copy of the cartoon here: http://www.creators.com/editorialcartoons/chip-bok/31500.html

The content has since been removed, in accordance with U.S. law and Tumblr’s own copyright policies.

It’s important for all creators that our users respect copyright, and so we ask that you take greater care when posting other people’s creations to your Tumblr blog. You can review Tumblr’s Terms of Service (https://www.tumblr.com/policy/terms-of-service) and Community Guidelines (https://www.tumblr.com/policy/community) for more information on our copyright policies.

At Tumblr, we implement a strict three-strike policy against copyright infringers. The notice we received counts as one strike against your account. If you receive three uncontested strikes within 18 months, your account will be terminated. You can contest this notification by following the instructions for a DMCA Counter-Notification found here: https://www.tumblr.com/policy/terms-of-service#dmca. A successful counter-notification will remove the strike against your account.

Please note that if your account is terminated for repeat copyright infringement, any new accounts you create will also be terminated.

This is a good opportunity to learn more about U.S. copyright law (never a bad idea) and to make sure that none of your other posts are infringing on someone’s copyright. Here are a few free resources you might want to look over:
http://fairuse.stanford.edu/internet-resources/
http://www.teachingcopyright.org/
http://copyright.gov/

Please let us know if you have any questions or concerns.

Best,
Tumblr Trust & Safety

It would appear that the cartoonist has no idea how fair use works (and the same may be true of Tumblr’s “Trust & Safety” staff). Yes, fair use is often a judgment call, but it’s difficult to see how this is not classic fair use. It was transformed (as the Tumblr letter even admits), and the transformation was done for the purpose of commentary and criticism of the original — classic parody, which the courts have recognized as quintessential fair use. Finally, it was not done for commercial reasons and the impact on the market for the original is clearly none (other than the fact that it might make Chip Bok look foolish — but the courts have been clear that it needs to be the copying, not the commentary that harms the market, and that’s clearly not the case here — i.e., the question is whether or not the copied work might substitute for the original in the market).

To better understand this, we’ll post both versions here (which again is fair use, should Bok or his syndicate suddenly wish to try to play this stupid game on us as well). Here’s the original:

The line in the bubble doesn’t make any sense at all in the context of net neutrality, nor does the message on the TV itself. As we stated in our post on Friday, we already know that the big broadband providers have been the ones who have been deliberately slowing down access to Netflix, resulting in images like the following appearing on people’s screens without net neutrality:
And, of course, once Netflix agreed to pay up, suddenly the big ISPs magically figured out how to plug in a few more connections and the speeds went back up:
Part of the point of the FCC’s new rules is to prevent this sort of gaming by the big broadband players so that you won’t have to see any delay messages at all when downloading a film. So, given all that, it’s rather easy to conclude that Chip Bok has no idea how net neutrality works. And, given that, a fairly good way to parody Bok’s ignorance is to post the following cartoon:
A Good Cartoon’s response to the DMCA takedown is to note, “i’m astonished that chip bok believes people could confuse something he made with something that’s actually funny and intelligent.” Of course, being embarrassed about a parody does not make it infringing. It’s still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.

Update: Over at his own site Bok is insisting this is not fair use and tossing out all sorts of nonsense about how he’s older than everyone and thus understands these things better:

Really, you people should stop hacking my cartoons to make a point. It?s not ?fair use?. It?s illegal. Think the FCC will help me out here? You?re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.

This is especially funny since Bok’s own site is called “Bokbluster” a clear play on the name of “Blockbuster.” And, of course, that’s a perfectly legitimate way to make use of something someone else created. But, Bok is so hypocritical that apparently he thinks that only he is allowed to build on another’s work. Even worse, it appears he’s racist, calling someone “Chinese” for criticizing him. That’s incredible. And, on the copyright question, Bok is wrong. It is absolutely fair use, as described above. And his “intellectual property” is not being “destroyed” just because someone created a parody. That’s not how it works. At all. His further comments show a complete lack of understanding about net neutrality as well. He mis-states the law in question, he mis-states what the FCC has done. Someone really ought to take him aside as suggest he just stop digging.

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Comments on “The Cartoonist Has No Idea How Fair Use Works”

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97 Comments
That One Guy (profile) says:

No incentives to do so

It’s still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.

Demanding someone take something down, even if it might be clearly fair use, has no legal negative consequences 99% of the time.

Refusing to take something down, believing that it’s fair use, opens you up to a lawsuit, and hefty legal costs, and even if your use is rules to be fair use, it is still incredibly expensive to fight the matter, with no chance of recouping spent costs.

The law is incredibly one-sided, so of course most companies and individuals have no idea what constitutes fair use, or even care to learn, because they have no reason to.

Anonymous Coward says:

Re: Re: No incentives to do so

Oh, they consider fair use…

They consider it to be an unimportant detail that they don’t need to be bothered with since there there effectively are no incentives to do so and no real consequences for not doing so – which was his point entirely.

The threat of opening up to 512(f) is milder that the threat of being subjected to a French taunting a second time.

That One Guy (profile) says:

Re: Re: No incentives to do so

Find me a case where someone was given anything more than a light slap on the wrist for not doing so, because as far as I know there hasn’t been one.

‘Consider’ doesn’t mean that they have to accept that it exists, all they have to do is say ‘Yes we considered it, and decided fair use didn’t apply’, and they’re good, no matter how clearly something would fall under fair use.

Blackfiredragon13 (profile) says:

Re: Re: Re: No incentives to do so

I remember a post somewhere on here about a defamation(I think case against someone and the plaintiff had to pay for defendant’s legal costs at the end.
Just remembered something else about case just before posting, was a patent case, guy pledged $1 million to go to in fighting it, based purely on principle.

Anonymous Coward says:

Destroying his work...

See the only way that could happen is if someone hacked his page, hacked his computer and hacked the rest of the internet in order to destroy ALL the originals and backups while posting this as the real thing…
And this guy who uses a drawing style that is so bland that there is probably 2000 artists on the internet that you wouldn’t be able to separate from his, an agenda he seemingly took directly from big broadband and a mood he copied from an angry pitbull with a sore tooth, should not state that people can’t come up with anything on their own.

JP Jones (profile) says:

Re: Not to defend Chip Bok...

The irony in this is that, historically, the United States has been one of the biggest violators of intellectual property rights in the world. Throughout most of the 19th century foreign patents and copyrights were simply ignored. Much of our technology and industry was based on British and German intellectual property that was nowhere near authorized.

The Chinese did (and are still doing) the same thing, but now that it’s our IP being taken, we get all upset about it. It’s like watching a kid cry about how the toy he stole from his sister was taken by bullies.

Boo hoo.

Anonymous Coward says:

Re: Re: Not to defend Chip Bok...

Perhaps you should consider that patents and copyrights are national in scope. A patent from the UK, for example, is of no force and effect within the U.S. (and vice versa).

WRT to China, what are largely being ignored are patents issued within China to foreign nationals. The converse is not true within the U.S.

Anonymous Coward says:

Re: Google image Chip Bok

Not to derail things too much, but concern about “punching up” or “punching down” is often misleading.

I don’t know if I care as much about the targets of Chip Bok’s opinions than about how well-informed those opinions are. Ignorant junk is ignorant junk no matter what the subject, and we seem to have plenty of ignorant junk in this case.

CrushU (profile) says:

Re: Re: Chinese

To be pedantic, he’s technically being a nationalist.

Assuming he’s not referring to all people of Chinese descent, but instead to people that are citizens of China.

It’s not racism when you’re directing it at a national stereotype, instead of an ethnic stereotype. By the literal definition of racism, anyway.

Anonymous Coward says:

” Whoever is behind that blog (on the blog the name used is “rorus raz,” and the post asks people to credit rorus raz, but on Twitter it’s “Alan Smithee” which is a popular pseudonym”

The original edits were posted by user Rorus Raz to the Something Awful Political Cartoons thread:

http://forums.somethingawful.com/showthread.php?threadid=3691509&pagenumber=269&perpage=40#post442165505

(If you can’t view the content without registering at the moment… that’s unfortunate, but that too shall pass)

Everything else is a repost.

Mitch Berger says:

Chip Bok

As a lawyer and as the consulting editor on NPR’s Double Take Toons, while I disagree with Chip Bok’s view of Net Neutrality, but I do support him on his understanding of fair use. His statement “come up with something on your own,” is what resonates with me the most.

Chip has the right to have the words he speaks and the images he draws to be presented as he intended them. In fact, he has an internationally recognized legal and moral right to protect the integrity of his work. Replacing his words with someone else’s isn’t just criticism, it supplants and therefore silences his speech. And because of the way the internet works, it is quite possible that some might mistake the parody of his work, as his work.

If you want to parody his cartoons, then at least take as much time and skill as he did. Cutting and pasting your own words on top of his, is not clever or creative. It used to be done with crayons and lots of exclamation points – every cartoonist I know has stacks of them. One proudly exhibited a photo of a re-captioned cartoon done in excrement, which took at least some original output.

Keroberos (profile) says:

Re: Chip Bok

Chip has the right to have the words he speaks and the images he draws to be presented as he intended them.

No, he does not, especially if he’s going to lie about the facts that he’s speaking and drawing about.

In fact, he has an internationally recognized legal and moral right to protect the integrity of his work.

Again… No, he does not. In the US this is legally protected fair use, and only a few countries recognize any moral right in their copyright law (the US is not one of them).

If you want to parody his cartoons, then at least take as much time and skill as he did. Cutting and pasting your own words on top of his, is not clever or creative.

Your opinion does not matter in this. It is protected fair use in the US with large quantities of case law confirming this.

art guerrilla (profile) says:

Re: Re: Chip Bok

exactly…
this guy is an ‘expert’ ? ? ?

AND he is some kind of adviser to a (whatever else you might think of it, and i generally think of sat night live parodies) mainstream, prominent, major media outlet ? ? ?

we are fucked…
if orgs that have the resources and public profile to have competent legal advice are relying on the likes of this parasite, er, lawyer who espouses both wrongheaded ‘legal advice’, AND evinces an innate bias towards copy maximalism, what chance does your average joe have against such an onslaught of ignorance and FUD ? ? ?

cpt kangarooski says:

Re: Chip Bok

Chip has the right to have the words he speaks and the images he draws to be presented as he intended them. In fact, he has an internationally recognized legal and moral right to protect the integrity of his work.

He almost certainly does not have any moral rights in this situation, in the US, and even if he did, such rights would still be subject to fair use.

Replacing his words with someone else’s isn’t just criticism, it supplants and therefore silences his speech.

Not at all. The original cartoons are unaffected. He is speaking at least as much as he would have had no parodies of his cartoons been made at all.

If you want to parody his cartoons, then at least take as much time and skill as he did. Cutting and pasting your own words on top of his, is not clever or creative.

This is not obligatory of course. And to be honest, I find it to be a rather lame request. Am I unqualified to say that a movie is bad and to support my review with excerpts thanks to fair use, if I am nevertheless not as skilled a filmmaker as the person I’m criticizing? Of course not. Fair use doesn’t have to be clever or creative. Parody doesn’t have to be particularly funny or well executed. And copyright even protects bad artists. Subjective judgements based on artistic skill or merit have no place in the law.

monkoii (profile) says:

Re: Chip Bok

US Copyright Law, Section 107 would seem to disagree with your assessment of fair use.

besides, the context of this redirection of his work is in the larger scope of the whole debate. the work done is not the graphical/textual overdub but is the background research (something Mr Bok quite clearly failed in) and the expression of intelligence behind the clean and simple subversion of the original meaning.

not using the original image would defeat the point. the source of the parody was perhaps not a cartoonist. should that have stopped them from being able to skewer the aggressive misunderstanding of the original in an intelligent, topical and biting fashion?

there is no denying Mr Bk’s profile has no doubt been raised by all this. he’s now a more famous twit than he was before. he should be happy.

John Fenderson (profile) says:

Re: Chip Bok

“Chip has the right to have the words he speaks and the images he draws to be presented as he intended them.”

Correct me if I’m wrong, but I believe that he does indeed get his words and pictures presented as he intended them, so this right is not being infringed.

“Replacing his words with someone else’s isn’t just criticism, it supplants and therefore silences his speech.”

Really? So the creation of a parody work somehow causes the work that he originally produced and published to cease to exist? I had no idea that parody was quite that powerful.

“Cutting and pasting your own words on top of his, is not clever or creative.”

You’re stating a personal preference, and I’m not going to say that anyone’s personal preference is incorrect. However, from a legal standpoint, neither cleverness nor creativity are required in order for a work to be parody.

JP Jones (profile) says:

Re: Chip Bok

As a lawyer and as the consulting editor on NPR’s Double Take Toons, while I disagree with Chip Bok’s view of Net Neutrality, but I do support him on his understanding of fair use.

You must be a terrible lawyer.

Chip has the right to have the words he speaks and the images he draws to be presented as he intended them.

Nope. If I buy a painting, and then draw beards on all the women and put it upside down on my wall, I am not using or presenting it as the artist intended…and there isn’t a shred of legal protection that prevents me from doing so.

In fact, he has an internationally recognized legal and moral right to protect the integrity of his work.

Nope. Copyright is not a moral right, and there is no right protecting the integrity of a work. He only has the right to be the sole distributor of his original work and derivatives thereof, if the derivatives are not covered under fair use. He has zero rights to this clear parody.

Replacing his words with someone else’s isn’t just criticism, it supplants and therefore silences his speech.

Not even close. His original work is still available and we can all laugh at his ignorance together. Honestly, if it did somehow silence his speech, it would probably be better…at least he wouldn’t have his idiocy broadcasted for the world to see. Alas, his speech is still available, and we can all ridicule it to our heart’s content.

And because of the way the internet works, it is quite possible that some might mistake the parody of his work, as his work.

Someone would mistake “The cartoonist has no idea how net neutrality works” as his own work? I’m sure people make cartoons that refer to themselves in third person and insult themselves, while not commenting on the actual image shown, all the time.

Nothing you mentioned is covered by law, and would not even be entertained by a court, let alone successfully prosecuted. If you’re his lawyer and/or consultant no wonder he has no idea how copyright law works.

Please, go for your lawsuit, let as all know how it works out. We need some more laughs around here!

Anonymous Coward says:

“Really, you people should stop hacking my cartoons to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.”

After reading this, I’m convinced net neutrality and fair use aren’t the only things the artist doesn’t understand.

Coyne Tibbets (profile) says:

Transformation? Not. Parody? Insufficient.

If I were to make such a change to a cartoon, I would expect to run afoul of copyright. There’s simply not enough transformation in this work, especially since the “parody” is buried within the larger artwork.

So my position is that this was theft of artwork to support an almost invisible parody; and that’s not enough to avoid infringement.

It would have been quite easy to transform it sufficiently. The simplest concept that occurred to me was showing a TV on the wall containing the comic to be parodied, and having a different pair of watchers comment on the cartoon on the TV. That would have been as effective and, I think, would have avoided any copyright conflict.

Chronno S. Trigger (profile) says:

Re: Transformation? Not. Parody? Insufficient.

You might be closing one eye and squinting with the other, but anyone who’s actually looking can easily see the commentary. It’s quite clearly stating that the original comic is wrong and ignorant. (And to others) Just because it’s calling the comic writer wrong and ignorant as well doesn’t lessen the message against the comic itself.

Commentary is covered under fair use and does not require any transformation of the original work.

monkoii (profile) says:

Re: Transformation? Not. Parody? Insufficient.

“It would have been quite easy to transform it sufficiently. The simplest concept that occurred to me..”

there’s something in that; I was thinking the same. but what if the subverter is not a cartoonish/artist and could not do this sufficiently well as to be acceptable?

the graphical transformation of the images is not the work. the ability and will to transform the originals in the context of the debate is what is being done. the originals were presented as a “wtf?” and the lampooning images appeared pretty much alongside; that’s the work/transformation.

Coyne Tibbets (profile) says:

Re: Re: Transformation? Not. Parody? Insufficient.

The parody is clear to me, but not so obvious–I had to look twice to see that it was actually a different comic. It is a small part, perhaps 5% of the overall work.

Imagine I took the original comic and changed one pixel to black, then claimed all the other pixels were mine. Should that be considered “transformation”? If I change one word of a 10,000 word book in “parody”, shall I then be able to call the rest of the 9,999 words mine?

It’s not a matter of whether transformation or parody occurred, but how much as a proportion of the work. If I were the judge in this case, I would rule it was not enough; therefore that infringement occurred.

That One Guy (profile) says:

Re: Re: Re: Transformation? Not. Parody? Insufficient.

The visual change to the works may be minor, simply switching out the words being said, but the change of what is being said is pretty big I’d say, going from ignorant or misguided attacks against something, to pointing out that the original artist has no idea what he’s talking about.

GEMont (profile) says:

Re: Re: Re:2 Transformation? Not. Parody? Insufficient.

Without the captions, there is no message in either the originals or the remakes.

The captions thus represents a far greater portion of the works than do the actual cartoon images, and in fact, in both cases – before and after – defines and explains the images.

Without the captions, the images have no meanings at all.

No infringement was perpetrated here.

One version says:
“FCC is bad! Will hurt you. Beware!”

The other says:
“Artist is a moron. Ignore his message.”

The change in the caption alters the entire meaning of the image, almost diametrically.

That is transformational enough to be parody and commentary and thus is fair use.

In my opinion anyways. 🙂

John Fenderson (profile) says:

Re: Re: Re: Transformation? Not. Parody? Insufficient.

“Imagine I took the original comic and changed one pixel to black, then claimed all the other pixels were mine. Should that be considered “transformation”?”

Of course not, and nobody would. But I don’t see how this question relates to the subject at hand. We aren’t talking about whether the use was “transformative” (although it is), but whether it is parody.

That said, there is no objective amount of change required to count as a “transformative”. It might be possible to contrive of an example where changing a single pixel would count, but it seems unlikely.

“If I change one word of a 10,000 word book in “parody”, shall I then be able to call the rest of the 9,999 words mine?”

Again, while it’s hard to come up with how this could possibly happen, if you do manage to actually develop a parody of a 10,000 word work by changing a single word, then I’d answer yes. Remember, a work isn’t parody just because the author says it is. “Parody” has a specific meaning.

“It’s not a matter of whether transformation or parody occurred, but how much as a proportion of the work.”

The law doesn’t agree with this. While the amount of change can (and often is) part of the consideration of the parody or transformative status of the derivative work, it’s a relatively small consideration. There is no “minimum change” requirement.

JP Jones (profile) says:

Re: Re: Re: Transformation? Not. Parody? Insufficient.

TV shows like the Daily Show, Colbert Report, and Last Week Tonight often take clips and images directly from news organizations with little to no modification. There’s no permission needed because they are commenting on the work. Sometimes they play a clip directly with no commentary, although it’s obvious to the viewers that commentary is happening (usually because the clip highlights something really stupid).

This is all protected under fair use and parody. And it’s vitally important that this right is protected, as being unable to comment on the speech of others (in whatever form that speech takes) not only violates the First Amendment but is a sign of living in a oppressed state.

runbei says:

Fair use? Piffle

“Fair use,” from the article and comments, would seem to mean “free beer.”

If you make it, you’re morally obligated to share it for free.

If that’s what’s meant, it’s complete bilge. Creators of art have a right to be fairly reimbursed for the use of their creations – exactly as house builders have a lawful and moral right to be paid for their work. “You built it. It’s there. I can use it.” It’s an infantile argument.

J_D (profile) says:

Re: Fair use? Piffle

You misconstrue what it means to “use” art. Creators have a right to be reimbursed for the use of their art as art. Using a house someone else built would be akin to printing out his cartoon, hanging it in a museum, and asking people to pay me to see it. This would be wrong.

If you build a shitty house, however, I have every right to criticize it, using pictures, diagrams, or any other representations of the house to make my point. That is what parody is. It isn’t “using” the actual art for its original intended purpose, it is using the art as a representation of itself to comment upon it.

Sheogorath (profile) says:

Mike’s statement: Even worse, it appears he’s racist, calling someone “Chinese” for criticizing him.
Bok’s rant: Are you Chinese? Come up with something on your own.
Personally, I don’t believe what Bok said was racist, I think it’s based on the fact that China has a reputation for producing the most counterfeit goods in the world. I formed this opinion after carefully reading the above line from the rant in context.

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