by Mike Masnick
Wed, Apr 11th 2012 12:05am
by Glyn Moody
Wed, Apr 4th 2012 12:14am
from the paradise-lost dept
Last year Techdirt wrote about Leah Day, who was trying to introduce a free model to quilting -- apparently a bold thing to do. Sadly, it seems that the ownership mentality is nonetheless spreading in her field, as she reports in this really excellent new blog post entitled "Copyright Terrorism":
Copyright issues seem to be cropping up with increasing frequency in the quilting world and I for one would like to try to stem this flow, or at least open your eyes, to the very real threat looming for our craft.
She then goes on to describe a recent case that perfectly summarizes the growing insanity beginning to infect the world of quilting:
What is this threat? Where is it coming from?
It is coming from within our own ranks. Quilters with a certain penchant for copyright and legal wrangling are turning our open, creative craft into a mine field of rules, regulations, licensing, attribution, and copyright lockdown that it's enough to make anyone set down their rotary cutter and sell their sewing machine.
The basic story goes like this: Emily Cier wrote a book called Scrap Republic for C&T Publishing. Moda, a fabric manufacturer sent her lots of fabric for free to create the quilts in this book.
So far, so good. But things got more complicated when somebody tried to build on that work -- which is precisely how art has always proceeded:
C&T Publishing randomly flipped through the book and picked a photo of one of the quilts, enlarged the image and printed it on the front of an eco tote bag.
Day then points out just what a mess this is if people try to think in terms of ownership:
Keep in mind, the fabric used in the quilts were obvious. The pieces they were cut into were large, making it very clear which line of fabric each quilt is created from.
The quilt used for the eco tote just happened to have been created using Kate Spain's Fandango fabric. Kate saw the bags and decided they violated her copyright of her fabric line.
Kate Spain then initiated a lawsuit against C&T Publishing and Emily Cier and demanded both the eco totes AND the books be destroyed.
Now things get murky because on her blog, Kate Spain denies starting a lawsuit, but it's obvious on both C&T's and Emily Cier's blog that a real, big, scary lawsuit was initiated. C&T Publishing ended up taking the blame and came to some accord with Kate Spain.
Let's work backwards: the tote bag was printed with a PHOTOGRAPH which was taken by a photographer for the book. Whoever that person was, they aren't credited in the book.
She contrasts this mentality with the fashion industry, where there is no copyright (despite the continuing attempts to bring it in.) There, creativity is not only blossoming in a way that is hard to match elsewhere, it has created a huge, profitable industry many times larger than all the copyright companies put together, as the well-known TED talk on the subject emphasized.
The QUILT was designed and created by Emily Cier.
The FABRIC used in the quilt was designed by Kate Spain.
Who really own the copyright?
She points out where the current obsession with ownership is taking her field:
If we lock up this industry, we will lose something powerful, something essential, something that brought me to quilting in the first place: freedom.
Finally, she offers her own vision of how things could be:
Freedom to play with fabric. Freedom to experiment with different shapes and layouts. Freedom to play with new techniques and materials. We can lose the freedom to create.
Because if you have to check with 5 different fabric designers and the quilt pattern designer AND the free motion quilting designer in order to make your quilt, how likely are you to do it? Even the idea of asking, even words like "licensing," are enough to send many people packing. Off to find another hobby the lawyers haven't ruined yet.
If you post something: an idea, a technique, a pretty picture, whatever, man up and give it away for free.
Several times in her commentary, Day raises another key issue: that of attribution. As she points out, artists need their work to be attributed, so that people can give them credit, and maybe contact them to buy or commission more work. It's the absence of attribution, not the absence of copyright, that can be problematic -- and not just for quilters, but also for the photographers that take pictures of their work, and the designers of fabrics that might be used as raw materials.
REALLY free. As in copyright free - as in anyone can use whatever you post for ANY reason.
What's the worst that can happen? Someone might teach your technique or idea. More people will learn it and enjoy it than you could ever reach alone. Is that such a terrible thing?
It's really a wonderfully rich post, which touches on many aspects of copyright and creativity, and I urge you to read it -- along with the forthright comments (already there are 142 of them.) It provides another example, alongside the fashion industry, of a field that is currently flourishing without copyright, but that is under threat from those who have bought into the story that assigning ownership to something as insubstantial as ideas somehow promotes creativity, when in fact all it does is to shut it down through a creeping, paralyzing fear of infringement, as Day so vividly describes.
by Mike Masnick
Thu, Mar 29th 2012 2:51pm
from the when-will-they-learn dept
JJ sent over a ridiculous story from Philadelphia where a Temple student was arrested for photographing the police, which he actually did as part of his photojournalism class, where he had a "night-photography" assignment. When he saw the police pull someone over near where he lived, he went over with his camera and started taking pictures. What happened next seems positively ridiculous:
As Van Kuyk tells it, he grabbed his camera and began taking photos of the occurrence. After being told to move away from the scene, Van Kuyk distanced himself but continued to take photos, he said. However, an officer soon after demanded Van Kuyk to stop taking photos, he said.The National Press Photographers Association sent a letter to the police commissioner decrying this behavior, noting that just a few months ago, the commissioner, Charles Ramsey, had actually sent out a memo to police officers, reminding them that they can be "photographed, videotaped or audibly recorded" when in public.
“He was pushing me, and I kept taking pictures and he didn’t like it, and he…got real aggressive and threw me to the ground,” Van Kuyk said.
When his girlfriend, Meghan Feighan, tried to pick up the camera, she was arrested and held for nearly 18 hours, he said. Van Kuyk was arrested and held for nearly 24 hours.
Unfortunately, that hasn't stopped the prosecution of these two individuals from moving forward. The girlfriend agreed to "settle" her case, paying $200 and agreeing to 12 hours of community service, for daring to pick up her boyfriend's camera after he'd been shoved to the ground. However, Van Kuyk is still facing charges -- including one potential felony charge for "hindering apprehension." One hopes that the court here agrees with the appeals court in Boston. Either that, or the prosecutors in Philly learn about the $170,000 Boston just had to pay out...
by Mike Masnick
Tue, Feb 7th 2012 2:51am
from the judge-didn't-understand-copyright-law? dept
the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositionsThroughout the ruling, the judge eviscerates Gordon's arguments, calling her claims "infirm." You might think that Gordon would get the hint. Instead, she's appealing the ruling and insisting that it's the judge who doesn't understand copyright law. As ArtInfo quotes and summarizes from the appeal:
"The District Court improperly dismissed my law suit because it did not apply the copyright law correctly," it reads, adding that the previous decision "exhibited a lack of intrinsic comprehension of art, and its expression or intended expression." Gordon claims that the court ignored the copyrightable elements of her work and that its judgement rested on the content rather than the stylistic decisions of her photographs: "the District Court’s focus on the similarity in subject matter, which was only part of my artistic choice, was a great error."Of course, if you read the original court ruling, nothing could be further from the truth. The ruling talks about the "artistic choice" argument too, and found it lacking. Hopefully, the appeals court makes quick work of this as well. As Artinfo notes, McGinley's lawyers certainly don't seem particularly worried.
by Glyn Moody
Tue, Dec 20th 2011 10:38am
from the why-can't-everyone-be-this-sensible? dept
Trey Ratcliff is an extremely successful photographer, who specializes in HDR photography. His blog Stuck in Customs is the top travel photography blog on the internet, with over a million views each week.
Naively, then, you might expect him to be a typical artistic fat-cat who regards every act of piracy of his photos as a personal insult that in a just world would be avenged by amputation of limbs and life incarceration at the minimum. Actually, he uses Creative Commons licensing for all his work, and has just written a wonderful post with the self-explanatory title "Five Reasons Why I Don't Care if My Stuff is Pirated - A New Way of Thinking", pointed out to us by Paul Newport, where he states:
All of my stuff is pirated. Everything from my HDR Video Tutorial to eBooks to Apps. Fine. It's all there on PirateBay and MegaUpload and all that stuff. Here are the reasons why I don't mind
He then goes to list five reasons that show a deep understanding of why piracy happens, and why it isn't necessarily so bad for those whose works are pirated. For example, Ratcliff points out:
Theft of bits are like the Tic Tacs that get stolen from the 7-11. It's the cost of doing business on the Internet.
That is, the actual loss is trivial (bits are practically free), and you learn to live with it because of the counterbalancing benefits. He also has a belief in the innate goodness of people:
Many people that pirate stuff now from me just don't have any money. But, they like me and want my stuff.
After all, that's why they pirate it. And if/when they eventually get their finances sorted out, they'll remember Ratcliff's generosity in allowing them to download his stuff for free without conducting a witchhunt as a result, and pay it back by buying from him. As he says:
Pirates are not cretins riddled with immoral behavior in every part of their life. These are all generally good people who would gladly support me, their friendly local neighborhood artist, if they could easily afford it. They can't now, but they will be able to some day...
He mentions another very practical reason not to dismiss pirates as the enemy:
Pirates have friends that have money. It's still word-of-mouth, the most effective friend-to-friend marketing in the world. If pirates like what you do, they'll tell their friends.
That's an important point: even if the pirates don't buy stuff now, they may well spread free publicity that drives sales elsewhere. If you vilify pirates, you are spurning an important part of your unofficial marketing department.
Finally, Ratcliff gives one central reason why he's not really that worried about piracy:
Last, and most important, as soon as I opened everything up, our business has grown and grown.
But he also notes:
piracy is not the reason that revenues are increasing, but they are not hurting revenues
The curious thing is, the same is true of the music and film industries, which continue to thrive despite all the online piracy, as Techdirt has pointed out in the past.
In other words, everything that Ratcliff says in his extremely wise post about photography also applies to music and films. But whereas he accepts the need for "A New Way of Thinking" as he puts it, and can even see that piracy is beneficial to him in many ways, the copyright industries cling to their traditional perspectives, and insist on fighting this "scourge" with ever-greater ferocity in the face of their continuing failure to expunge it – with huge collateral damage to the rest of us, as SOPA and PIPA make clear.
by Mike Masnick
Fri, Oct 7th 2011 12:07pm
from the the-public-domain-is-dead dept
SMLLC is claiming copyright on the photograph of the painting, arguing that while it may not hold the copyright on the painting itself, it can still hold the copyright on the photograph. Of course, that's only true if significant artistic decisions were made in making the photograph... and then the copyright would only cover those pieces. Either way, someone got ahold of the photo and posted it to her own website. SMLLC claimed that this was infringing. The woman, Laura Sotka, tried to explain US copyright law the lawyers, who responded by suing.
The case is now ongoing... and the court's first big move is to issue a preliminary injunction, blocking the dissemination of the copyrighted photographs. Of course, that seems a bit extreme, especially if she's later found to be doing everything legally. Of course, it's not entirely clear what SMLLC thinks it's doing here either. Hiding the painting away doesn't contribute to culture and it certainly doesn't help make people any more interested in checking it out. And without more details it's difficult to say if SMLLC really has a legitimate copyright claim, but I find it unlikely. It is worth pointing out that under Bridgeman v. Corel, a photograph of a public domain image can not be protected by copyright. So unless there's something amazingly creative that the photographer did, SMLLC probably does not have a legitimate claim here. What's unfortunate is that the courts have been dragging such a silly case on for so long -- and, in the meantime, the woman being sued still has to live with such a bogus claim hanging over her head.
by Michael Ho
Mon, Oct 3rd 2011 5:00pm
from the urls-we-dig-up dept
- If you want the subjects of your photos to look really small, take a picture of them next to a really big coin. Remember: it's not counterfeiting if you make coins the size of a coffee table... [url]
- Tilt-shift photographic effects can be created in a few different ways -- to fabricate images of a crowd of people, looking like ants. Someday this is what The Sims will look like. [url]
- If you think photography is easy, get ready to be mocked. If you like seeing photos with really bad composition and cheesy photoshop effects, youarenotaphotographer is the blog for you. [url]
- Who knew that photos of pregnant women could become an internet meme like planking? Thankfully, there don't seem to be any photos of pregnant women planking. [url]
- To discover more interesting photography-related content, check out what's currently floating around the StumbleUpon universe. [url] By the way, StumbleUpon can recommend some good Techdirt articles, too.
by Mike Masnick
Fri, Aug 19th 2011 5:30pm
Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
from the nicely-done dept
In this case, the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley. Although the Court declines to conduct an exhaustive inventory of the 150 allegedly infringing images, a representative sample illustrates and confirms this result.From there, the judge picks a few of the images, and notes just how different they are. For example, he compares these two images:
But there the similarity ends. The Gordon Image is black and white and vertical, while the McGinley Image is in full color and horizontal. The Gordon figure is clothed in a short-sleeve T-shirt, dark pants, and tennis shoes; his hair is closely shorn. The McGinley figure is clothed in a longsleeve shirt and shorts and is barefoot; his hair is medium-length. Plaintiff attempts to obscure these “peripheral” differences by cropping and rotating the Gordon Image and converting the McGinley image to black and white. (Pl.’s Opp’n 18.) But not even these alterations can reconcile the “total concept and overall feel” of the two images. The Gordon figure is muscular and taut, with not one but both arms splayed in a gesture of virile triumph. The look on his face is intent, perhaps even defiant. The McGinley figure is slender and his posture relaxed, with both legs floating apart rather than clenched together. His head drapes to one shoulder and a dreamy look inhabits his face as he falls through the frame. Thus, the overall feel of the McGinley Image is that of a passive figure simply surrendering to gravity, while the overall feel of the Gordon Image derives from a dynamic figure jumping into the frame. No dissection of the images is required to discern the “utter lack of similarity” between the two.Later, the judge notes that Gordon repeatedly "alters" images to try to make her infringement case stronger, and also notes that she has a "penchant for strained image descriptions."
The judge also berates Gordon for relying on a battery of "experts" who even admit they don't know much about copyright law:
Moreover, the substance of the expert affidavits simply underscores the infirmity of Plaintiff’s infringement claim. Several experts profess a belief that Plaintiff should prevail in this action while disavowing any familiarity with copyright law. (See Pl.’s Opp’n, Ex. B, Aff. of Dan Cameron, June 27, 2011, ¶ 4 (“I do not pretend to understand all the legal complexities of Ms. Gordon’s case”); id., Ex. F, Aff. of Volker Diehl, June 29, 2011, ¶ 9 (“I am unfamiliar with laws surrounding this issue, in particular the laws of the United States as it pertains to such causes of action”).) Another opines on the contours of “fine art ethics” (id., Ex. D, Aff. of Heather Holden, June 24, 2011, ¶ 12) and acknowledges that art expertise “may be needed” to discern the relationship between the images at issue (id., Ex. D., Holden Aff., ¶ 11). What is clear from the foregoing expert testimony is not that Plaintiff should prevail in this action, but that the remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court.Finally, after repeating, once again, that "good eyes and common sense" say there's no infringement, the court also points out that "not all copying results in copyright infringement" and that:
Plaintiff's apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression.Additionally, the court is somewhat shocked that an artist would make such claims, and finds it even more ridiculous that her lawyers agreed to go forward with it:
One might have hoped that Plaintiff - an artist - would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.It's a nice clean ruling. It's just too bad the court had to waste time with it at all.
by Mike Masnick
Mon, Jun 27th 2011 11:08am
from the artistic-copying dept
In the time I spend talking about copyright issues, it's always seemed that it was a certain group of photographers who get much more worked up about these things than anyone else. I very much understand why this is. In many cases, photographers are self-employed, and they've come to believe that copyright is their sole way of making a living (I believe they're wrong on this, but they believe it strongly). So anything that takes away from copyright protections -- including such legally enshrined issues as fair use -- are seen as being serious threats. Again, I think this is somewhat short-sighted and wrong, but I understand where the feelings come from.
We recently wrote about Andy Baio's legal fight with Jay Maisel over Baio's use of a pixelated version of Maisel's photograph of Miles Davis that became the iconic album cover for Kind of Blue.
However, there is one argument I've seen in numerous places by photographers that strikes me as either incredibly self-unaware, or just downright hypocritical. There were a few such comments on our post about it, such as this one that insisted that since you could still recognize the photo, Andy "didn't turn it into something different." Similarly, a photographer by the name of William Beem (and I really don't mean to single out Mr. Beem, but to use his comments as a sample of the general argument) commented a few times on a post by Mathew Ingram about this whole affair, again arguing vehemently that there's no fair use here and that Andy "stole" the image. For example, Beem states the following:
Andy took something that wasn’t his and he didn’t have any license or right to take it. Digital or physical, that’s theft. Your argument that Jay Maisel still has the original is true, so Andy stole a copy. It’s still not his. The image is recognizable as the original. All rights to that image belong with the copyright holder, whether original or duplicated.It's this form of argument that I find incredibly hypocritical. The whole "took something that wasn't his." What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way. It's the same thing any photographer does. Part of the very process of photographing is, literally, making a copy, often without a "license" from whatever it is you're making a copy of. Again, that doesn't make it any less art. In fact, the reason that photographs are considered eligible for copyright protection at all (and some have questioned this) is because of the artistic choices in making a photograph: how it was framed, lighting, etc. Yet, in the pixelated image, again, there are similar artistic choices made: how to pixelate the image. How to still make it look good, but within the limitations of the pixelated artform, etc.
Saying that all art is derivative in some way is very nebulous.
Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used. This is false. You can see, pretty obviously, just from looking at the tie, that the guy who made the pixelated image didn't just Photoshop it, but found a way to recreate the general feel of the original image, but within the artform of pixelated images. You could just as easily argue that Maisel found a way to recreate the general feel of Miles Davis performing, but within the artform of photography. If you don't understand this, you can see if you look at an actual attempt to run a Photoshop filter on Maisel's original, the result is quite different. Furthermore, as David Liu pointed out, a scaled down version of an image is quite different than a hand-pixelated image, and in the case of Kind of Bloop, the image was hand-pixelated, using all sorts of artistic choices by the artist.
What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there -- something they did not create -- and then turned it into an artform. In Maisel's case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph. In Baio's case, it was taking the Maisel photo, and turning it into an 8-bit image in homage to the original.
Photography, by its very nature, starts with simply copying what's on the other side of the lens. Yes, there is more to it on top of that. There are all sorts of artistic choices to be made about how to copy. How to frame, how to focus, how to light, how to shade, how to dodge, how to print, etc. That's what makes it an artform. But it's incredibly hypocritical to then decry others similarly making a copy, with similar artistic choices, by somehow claiming that that version of copying is "theft." So, photographers, please don't be so quick to decry other artforms that also start with copying, but which also then apply additional artistic choices. If Jay Maisel's photograph of Miles Davis is unique and original artwork (and I believe it is), then so is the cover of Andy Baio's album.
by Mike Masnick
Tue, Apr 26th 2011 11:14pm
Professional Photographers Find Massively Successful New Careers Helping Amateurs Be Better Photographers
from the don't-sit-and-whine dept
At first glance, David Hobby looks like just another casualty of the decline of print media: A longtime staff photographer for the Baltimore Sun, he was one of many employees who accepted a buyout in 2008 as part of broad staff reductions at the distressed newspaper.Those two photographers totally have the right attitude. Rather than looking at the changing market and crying about how they can't make money the way they used to, they both see these changes as an opportunity, which is allowing them to do quite well, from the sound of things. The attitude that McNally has is really perfect:
Yet last month he embarked on a sold-out, cross-country tour that will visit 29 cities. Approximately $1 million in tickets have been sold for the privilege of hearing Hobby and famed magazine photographer Joe McNally speak about their craft. Hobby's blog, Strobist, on which he teaches amateurs the lighting techniques used by professionals, welcomed 2 million unique visitors last year.
McNally doesn't see anything demeaning in sharing his insights with thousands of amateurs; rather, he says he's come to enjoy teaching. "If you encounter passion, you have to counter it with your own passion," he says. "Even if, at the end of the day, you feel they're not going to go out the next day and climb the Empire State Building."Those two paragraphs could certainly apply to almost all of the various industries we talk about here. You can fight change, or you can realize how change often opens up a much larger market, and you can take the same passion you have directly into that new market.
That sentiment is alien to the old guard in the professional photography world, where, Hobby says, "there's a lot of information-hoarding, and [a sense that] if I teach this person how to do this, he'll become my competition." Once the dust settles from all the change he's helped bring about, Hobby thinks there will still be legitimate careers for professional photographers. "You'll have fewer rock stars, and a much larger middle class," he says, a group of photographers who will find ways to distinguish themselves from the rest of the pack.