Vagabundus

Join Date 07/2006

A Call for Leadership: The copyright issue

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I am new to this forum, although not at all new to issues of images and copyright. From what I read in the rules of the site it seems that images from film and television are not supposed to be used without permission. 

Copyright could be an important issue, especially if this site (and others like it) becomes more popular with all the Vista stuff on people's computers. 

Far from agreement, however, different parties here seem to hold very clear--and opposing--ideas of just whether something used in a windows customization is or is not protected by copyright. 

There does seem to be a smoke wafting o'er the "individually-drawn fields-of-grass" Vista customization community each time a popular image ends up posted here. Lots of smoke, and yet very little light. A quick look shows that such discussions often jump immediately from step 1 "we all mature people who hold different opinions in this forum" to somewhere about step 24 "you are a (insert favorite here) and a loser".
 

Few would say that copyright law is easy to understand. I guess if it were easy there would be a bunch of copyright lawyers looking for work. From the few copyright attorneys I have run into keeping them off the street is probably a good public service.
 

It is true that the published literature does speak in complicated terms. Both the good news and the bad news about copyright law is that we have a fairly large body of administrative rulings and court cases constituting copyright law.
 

*Good news because we have a large collection of cases to look at to search for a scenario similar to ours.

 
*Bad news because we have little but a collection of cases, and it is hard work trying to figure out why case A was tried one way and case B another even though both cases look a lot like our situation.

 

NOT ALLOWED

 
There isn't much that most people can know for sure about copyrights, though I have picked up a few gems here and there:

 
(a) Cartoon derivations of published cartoons are *not* allowed in not-for-profit newsletters and other public displays,
 

(

protected images (which is just about anything distributed so that someone other than the user sees it) may not be used in business presentations, even if there is no money paid to the creator of the derivative or to the presenter who uses it, and
 

(c) not-for-profit organizations don't receive any special treatment when it comes to copyright. If a use is not allowed in a for-profit setting, it is not allowed in a similar not-for-profit setting.

 
(d) the media in which unlawfully derived material is distributed is also responsible for the unlawful use, if there is one. Simply stating "we are not responsible" does not remove responsibility. If a medium (newspaper, cable TV, video, book, magazine, web site etc.) makes a genuine and responsible effort to avoid the unlawful publishing of copyrighted material they may be able to demonstrate they are not to be held partially responsible. This "due diligence" must be evident to any one who could potentially post anything that would infringe on a copyright.
 

e) it doesn't matter whether anyone *makes* money on the unauthorized image, it is sufficient that the copyrighted material's market potential is reduced by improper use of an image. In other words, just because I don't make any money for putting Mickey Mouse drinking a beer on a few T-shirts, Walt Disney studios (these guys have no sense of humor. . .at all) will aggressively hunt down and prosecute anyone they find using Mickey Mouse in such a way.

 
FINANCIAL HARM 

The attorneys representing owners of the copyrighted material further argue that 
(i) even though no money was earned by the person appropriating the image, 
(ii) and even though the image was clearly not official (i.e., their is no attempt to gain popularity by stealing the image), and 
(iii) even if Walt Disney Studios or their (even future) licensees have no plans to use the image themselves in the market in which the derivation of the protected image was displayed, Walt Disney Studios can be harmed by its use by someone else. 

This harm comes in exposure. The studios have shown that they have a specific time table showing which images can be released in which markets, before the image becomes so often seen it loses its commercial value to a licensee (e.g., McDonalds' toys). 

To support this claim they have proved that their release of their own movies is done on a schedule so that the re-release will have the most effective impact for their licensees (read: $$$). From there it is relatively straightforward to show that should they need to delay a re-release because an image has been widely "pirated" they will suffer real economic harm. That is usually enough to sustain their "loss of revenue" claim. 

They claim that their income from licensing Mickey Mouse suffers when the images--including the black market uses--become too prevalent on the street. It is therefore incredibly, maybe even "impossibly" difficult to prove that an unauthorized use caused economic losses. It is not an accident that the burden of proof ends up on the shoulders of the party with the derivative, rather than the original work. 

FAIR USE 
There are "Fair use" protections, to be sure. Most fair use claims fall under a couple of categories. The first is "critical use". By this they don't mean use somehow critical of the original use, but rather use that is for the purpose of commenting on the original use. Mostly this covers reviewers and academicians (though not necessarily the students in college classrooms, go figure!). 

The second broad "fair use" category includes the "incidental" or "personal" uses. This is designed to keep the nasty lawyers away from little 3-year-old Judy (or her 34-year-old aunt) because she drew a surreal depiction of Mickey Mouse with two additional heads where his ears should be. The law covers ordinary people talking about (or drawing, for personal use) otherwise restricted images as long as their use is "personal". 

Parodies of work are protected, although the intent must be clearly to make a statement about the original work, not to make another statement. In short, Monty Python can't be successfully sued for using names or themes drawn from "knights and damsels" pieces. No reasonable person watches "Holy Grail" for fresh new intellectual statements. (and copyright on L'Morte expired several hundred years ago. . .) 

Several other parts of the Fair Use defense have grown and increased, or decreased as the decades went by. Anyone who has even seen the law books about Fair Use in copyright law knows just how senseless it is to draw up a "3 points covering all of Fair use in copyright law". 

Fair use generally means that only an insignificant/incidental portion of the entire work will be used. While there are some rules of thumb, you should be careful to rest too much of your weight on them. The portion constituting a fair use of a multi-volume "History of the World" will be much different from that of a song lyric. 

Many in the higher education community (especially colleges and universities in the United States) used to believe that "Fair Use" covered just about anything done in the classroom. A few strategically placed raids on professors' filing cabinets made it quite clear that a professor could not expect Fair Use to cover the mass distribution of articles and books used in classes. (There was a bright flash and thousands of small copy shops went out of business). 

Likewise, a few mega-churches had their offices upended over photocopying songs for use in services. Many thought "surely Fair Use will protect churches!" Many were wrong. Now most churches subscribe to a service that collects fees and distributes them back to the owners of the copyrighted works used in services. 

The copyright owners' attorneys have not gotten everything they wished for, and there are some issues still to be resolved. But generally speaking, it would be a mistake to assume that somehow our community is immune from copyright concerns. 

This is why I'm not sure we fit in comfortably under Fair Use. 

A quick read of the agreements shows that Stardock quite clearly disavows any responsibility for (and thus any liability for) any unlawful use of copyrighted material on their various sites. 

Should Walt Disney's army of cold and calculating attorneys come slithering (kinda gives you the creeps, huh?) around the Stardock sites I am sure the powers that be will whip out their rules which govern the use of potentially protected images in an impression of the famous Casablanca scene with Stardock in the role of the Inspector saying "use of protected images on our site? I'm shocked! Just shocked!" 

It would be easier to ensure our use was covered under fair use if our products weren't available to the public. Especially in that it sort of ruins the whole idea of providing exposure of creative works to the community if our products aren't available to the community. My best guess (and I'm not an attorney) is that if image owners dropped by the site to check things out, they would be very interested in the thousands of downloads listed on each wallpaper, icon or screenshot, and the "millions of users" touted by the company information pages.
 

What we say about ourselves is important. If we say lots of people visit our forums and download our works it will be tough to change that to "we're small and completely inconsequential--there is no way anyone could think we are doing anything but putting this disputed material in a few hands. It wouldn't be hard to gather some rather clear evidence about what we told our potential advertisers they were buying with their banner ads. I would guess it is not "there's about 48 people who look at one another's work--that's all. . ."
 

I would think it would be hard to convince a judge somewhere (a) that we, the Stardock users community, didn't know our work with protected images was being used outside of our immediate close community and that (

having their protected images on the computer screens of said thousands of users is fundamentally different from using said surreal picture in a PSA or advertisement on a local cable television station.

 
But the attorneys at/for Stardock really should make some sort of statement about it since the rules seem to say one thing (no, no, no, don't do it! If you do do it, it's on your head! we wash our hands of the entire affair!) and the current practice says another (way cool! another Warner Brothers screen for our community's collection! Have you done anything with that funny Martian guy who kept shooting the duck?). It is not just what we say. The courts are usually smart enough when it comes to distinguishing between "the disclaimer" and the real policy, vis-a-vis the message we frequently tell each other.

 
FAN ART EXCLUSION?
 

Specifically I have not run into "fan art" as a protected use in Copyright law. My study has certainly not been exhaustive, being restricted to a handful of specific issues/domains. 

Has there been a recent ruling that allows otherwise protected images to be used within a "fan" site? I haven't seen anything so far but it would not be at all unlikely that it had been done years ago--seems no one at the Department of Justice thinks it important to consult me before they make administrative rulings! 

I am familiar with some sweeps through some big Cons identifying pirated goods (including t-shirts, posters and especially re-imaged posters. It strikes me as stretch to be able to produce a derivative image of protected work and claim the use is covered under fair use because the author is a fan. This would make it easy to protect any derivative work. All those attorneys would be out of business! 
 
Here is part of what Wikipedia says about fan art: 
=============================== 
 
"Generally, the right to reproduce and display pieces of artwork is controlled by the author or artist. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful."
("Fan art." Wikipedia, The Free Encyclopedia. 22 Jan 2007, 14:55 UTC. Wikimedia Foundation, Inc. 23 Jan 2007 . 

To be fair, it does go on to say that the law isn't yet settled so users have no firm basis on which to stand. Given this state of the law, however, it is unlikely that Stardock would be looking to be one of the sacrificial lambs slain in the run up and down the courts on this issue. There are a lot of stories out there of companies who were right all along but who went bankrupt before their case was decided in their favor. Sometimes life stinks. 
===========================
 
This is from the "Otakon" web site: 
 
===================== 
No Fanart Without License. 
Otakon has announced via their forum (registration required) that the sale of fan art based on properties that the artist does not own the copyright for or have a license to produce will not be permitted at the Otakon artists' alley this year. 
 
The full text of the statement reads: 
 
Otakon's Artists Alley will be actively disallowing the sale of unlicensed copyrighted materials. If you own it, you can sell it. If you have license to it, you can sell it. But if it has material (images, sounds, etc.), in whole or in part, to which you DO NOT have permission to sell, then that material will not be allowed in the Artists Alley. Anyone found in violation of this rule loses their retail space in Artists Alley for the remainder of the convention.
5b. Policy for the DISPLAY of unlicensed copyrighted material - provided it is NOT FOR SALE - is currently under review. 
 
Works of parody, for which the U.S. legal code permits fair use exemptions to copyright, may be permitted. These will be reviewed on a case by case basis. 

(The above statement will be officially/legally worded and posted on the site during February, after our lawyer and Otakorp President have approved it.) 

("Otakon Enforces Copyright at Artists' Alley." Anime News Network. 22 Jan 2007, 15:45 UTC. http://www.animenewsnetwork.com/news/2006-01-28/otakon-enforces-copyright-at-artists-alley)
 
==============

 On the site, Fanart Central the administrators explicitly disallow any images that "are not 100% original," thus excluding all material including recolors, montages, collages, etc.
 
 
This Policy in a Nutshell:
 
* ALL submissions to your FAC gallery must be YOUR own artistic work and may NOT violate copyrights held by ANY other artist or studio. 
=============
 
I found it particularly interesting their categories included: 
 
========================== 
Desktop Screenshots 
Images taken with the PrintScreen key or other screen-capturing feature, typically displaying a wallpaper background, desktop icons, the Start Menu and Taskbar (or equivalents). This is because many wallpaper backgrounds incorporate copyrighted material and therefore cannot be allowed anyway. This clause does not extend to the general uploading of original artwork in standard desktop dimensions (e.g., 800x600 or 1024x768), even though it could potentially be downloaded and used as a desktop background itself.
 
("Fanart Central Submissions policy." Fanart Central. 22 Jan 2007, 16:30 UTC.http://www.fanart-central.net/register.php) 

========================= 
 
So we, as an online community, ought to take these situations seriously. I have seen the heavy sledgehammer of the justice system at work (and it ain't purty!) I really do enjoy seeing the creations of others, and do want this to continue for at least decades. 

WE NEED LEADERSHIP 
 
Please don't shoot the messenger. I'm not an attorney. It may well be that Stardock has already researched the issue and that I am misreading their rules for the site. 
I am also not trying to pretend to be one. I can not be credited with even a single line in the volumes of United States and International copyright laws and treaties (don't forget that many of our submissions are from outside of the US--the People's Republic won the "country with most entries" award in the latest GUI awards. The work going into and out of these countries will be bound by International treaty). I am quite sure there aren't two people in the International Copyright Treaty community who care what I think!
 
I don't even play an attorney on TV. . . 
 
The purpose of this article is to put out a warning flag, to say "I've heard there are mines in the sand up ahead--better slow down and make sure you know if they are there, what sort of mines they are, and where they are buried." It might be best to put up some accident site tape around part of the road ahead if there are too many placed too close together there, or to mark off nice scenic areas where people should not leave the road, no matter how pretty the scenery.
 
This is not a primer on copyright law. I haven't even touched on the new wrinkles on the copyright scenario as the most populous nation in the world is seeing a 30% increase in internet use *each year*! What happens to copyright when easy internet access comes to an area of the world which has been known for lax enforcement of copyright law?
 
I have instead tried here to provide a few examples showing how other sites have dealt with the issue. I believe (in the absence of unconfirming evidence so far) there is no generic "fan art" reservation in copyright law, that the materials downloaded onto a public site certainly do fall under the general limitations of copyright law, and that there are ways of dealing with the issue in a relatively pain-free way.
 
It may be that the "never blinking eye" of the legal departments of major studios will continue to pass over the computer user customization community and will never drag anyone into court over the issue. Even if we didn't change a thing it is possible that no one would ever say a thing, call us bad names, or stop liking us.
 
Yet it would be such a shame if we had this opportunity to clean things up and didn't bother. It certainly is the case that any attorneys taking up the case against us would start by asking for an injunction against posting anything new until the case was resolved--which could take years.
 
It is hard to envision a pleasant outcome if they succeeded in shutting down this site for a few years--even if we eventually triumphed in the end. As the old joke goes "the operation was a success; the patient died."
 
This is too important an issue to leave it for others to figure out. We ought to take the time to come up with a good solid, clear policy that can be effectively used to decide "this wallpaper in, that bootscreen out."
 
This is where we need some strong leadership fairly soon in the customizing community. We really don't want the folks on the other side of the issue to write the rules for us. It would be much better if we took the initiative.

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OK...step one....format text.

One single lump paragraph is not conducive to efficient/successful communication...

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I gave up about 20% in...as any semblance of continuity was lost.

To cut to the chase, Stardock, as the owners of Wincustomize.com have a determination of what is or is not allowed/accepted here, as it ultimately becomes thir responsibility in any 'legal' sense, and it is the responsibility of the site's Admins/Moderators to adhere to this.

With the advent of WC2K7, plans are afoot to redefine these 'rules' for the site admins and the community at large to follow...

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Skinhit

Join Date 11/2004

+516

very insightful and very true...anxious to see what comes of this

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This is like reading e.e. cummings...and I've misplaced my glasses! I'll give it another go.

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it would be a mistake to assume that somehow our community is immune from copyright concerns.

This is too important an issue to leave it for others to figure out. We ought to take the time to come up with a good solid, clear policy

There are a lot of stories out there of companies who were right all along but who went bankrupt before their case was decided in their favor. Sometimes life stinks.

Simply stating "we are not responsible" does not remove responsibility

A very real possibility. "Legal" and "moral" are two separate and vast concepts, intertwined, however, in such a byzantine fashion as to make rulings and judgements in either venue a monumental task. With the many free-lance "experts" out there looking for a cause and a buck, it would seem it's only a matter of time 'til there's a "knock on the door". It may be wise to pay attention here and be prepared. Maybe it's already been addressed and taken care of by the upper echelon. Maybe it ain't my job. I can be paranoid and not leave the house. I can be a pollyanna and not worry. Or I can choose to do the footwork and deal with it. Thinking about this feels like walking barefoot on gravel! I'd have to agree, there's mines.

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ZubaZ

Join Date 11/2001

+917

You are a better man than I seldomseen; I couldn't get through it.

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Do you write agreements for internet and software usage? Just wondering. The lack of paragraph structure turned me off even though I am interested in the topic.

Skinhit and Seldom, I agree with Zubaz. You are better than me.

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kenwas

Join Date 04/2003

+124

This is too important an issue to leave it for others to figure out. We ought to take the time to come up with a good solid, clear policy

Rule #1., never, never play lawyer. That is Stardock's job as Jafo pointed out and it is our job to follow the rules.

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Wanted to read it, couldn't. Blech.

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Fuzzy Logic

Join Date 05/2002

+493

Same here, too much of an eyefull...

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...ocular malfunction...ocular malfunction...ocular malfunction...gaak! even eyedrops don't help...why did I do that...[bangs shins on coffeetable, toilet rim, car door sill...]

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well i read the whole thing. he has a good arguement, and a good warning. i love this site. i have been downloading stuff from here for the past 2 years. i tell everyone and anyone i can about this site when i see they are trying to customize thier desktop. i wouldnt want to see this site taken down because of copyright laws. i agree we should do something.

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ZubaZ

Join Date 11/2001

+917

Holmes, I'll send good thoughts at you if you'll boil the arguments down to something readable.

I'll send good thoughts to your family too if you then compare the arguments to every other copyright post in WC and do a analysis.

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Lantec

Join Date 07/2003

+346

Sooo, that's where Fuzzy got his name..........

Whoops......wrong thread.

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I.R. Brainiac

Join Date 05/2003

+281

I gave up about 10 lines in.

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BigDogBigFeet

Join Date 12/2005

+461

A good read. Oops looks like once again people are gonna say huh?

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Sorry, people.

It was formatted when I started.

(with subheads and everything)

Maybe I am missing a critical piece...?

Do you need to insert html code?

I am truly sorry. Didn't mean to create headaches!

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I give up!

When I opened it to edit, the breaks and blank lines were all there. Only after I logged out and returned did the text show up as one big uninterrupted mass (in a previous life, I used to call it "sea of gray).

So I hand entered after every paragraph.

Then when I saved the text, the s all showed up as text!

So now I will log off, log back on, and see if the edits stayed. If so, I will go in and remove the s that I just inserted. . .

I hope this will fix the readability problem.

(PS, it has taken a while for me to get back here. I am permanently disabled and have more days incommunicado in bed than out. This to explain the delay in my fixing this problem. Am I the only idiot around? or at least, the only idiot of this flavor. . . Has this strange formatting thing bit others? Maybe the computers really don't like me.)

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I think it's after each paragraph Vagabundus. I'm not sure.
Ughh. Even your name sounds like something out of a Lawyer's Bible.
Habeas Corpus Vagabundus.

Anyway, I don't know anything about legal stuff, but I have surfed the web enough that I've gotten to the end of it.
These guys have been around for, I would guess 6 years, I'm sure they probably know what they're doing. I've been to sites so badly messed up with Copyright Infringement, you'd think Lawyers would be on them like zombies to brains. The most I've ever seen was just the company who owned the Copyrighted item, ask the website to have such item removed, before legal actions would be taken. I think even in the extreme case here, the same would apply. These guys nor anyone else for that matter can keep an eye on every single item uploaded on here, in the respect of tracking the skin down on the entire internet to see if it really is someone elses.
Okay, there's my 2 cents, the rest is gonna cost ya.

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Z71

Join Date 08/2001

+76

Copyright.
The most blantantly abused (issue) on the internet.
I need to stop now or I'll start ranting. Then I'll pi$$ everybody off......

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