So a few weeks ago, my blog post about Copyright, and Salt Lake Comic Con’s use of my image to promote ticket sales, got a little attention. After being posted to Reddit, it certainly got the attention of both of the owners of Salt Lake Comic Con. Over the following weekend, I was the brief target of a campaign to effectively discredit me, and have since been publicly and privately accused of slander and libel.
Let’s start with why copyright is important, because it affects almost everything about our culture. It’s the reason someone can paint a picture, write a book, or do both and make a comic book, an iconic product of American culture. The notion that you can create a work as art, for example, Mickey Mouse, or Spider-man, and take it to market as a profit venture, without having the guy next to you look over your shoulder, duplicate your work, and try to profit from it himself. In business, this concept often bleeds into trademarks, as well, the unique things about your business that people recognize as being yours, and not the knock off. If you want to get into the legalese of copyright, here’s the law.
As a photographer, from the moment I click the shutter release, the image created by my camera is mine. Copyright is the very much the same as a property right. It is my possession to do with as I please, with a couple of specific exceptions. I own the photograph, for all intents and purposes. Even if I post them online, with or without my watermark, I still own them, and I control how they may be used. The definition is relatively simple: Copyright is the exclusive legal right, given to an originator/creator (or an assignee, someone to whom those rights are transferred or extended) to print, publish, perform, film, distribute or record literary, artistic, or musical material, and to authorize others to do the same.”
Take a moment and let that sink in.
Now, let’s talk about exceptions. First, there’s ‘public domain’, where any given work is considered public property, to be used in any way. Here in the U.S. we enjoy a fairly lengthy copyright period, thanks largely to the folks over at Disney, in their efforts to maintain control of their signature work, Mickey Mouse. Copyright terms last for the duration of my life, plus an additional 50 years, which gives any kids I might have accidentally fathered the right to enjoy a nice life based on my efforts. If I were a corporation, like Disney, that term extends to 75 years. I’m clearly not a corporation, since I can vote and be drafted, which explains why I have less rights. Another very relevant character that’s benefitted from this: Superman.
Things that are in the public domain? The Mona Lisa. All the written works of Shakespeare. Everything Mark Twain ever did. The great works of H.G. Wells, like the original versions of ‘War of the Worlds’ and ‘The Time Machine.’ ‘The Great Gatsby’ will become public domain in 2021. Barring an act of Disney, Mickey Mouse may enter the public domain in 2023.
Another notable exception is ‘fair use’. The legalese: “the fair use of a copyrighted work, including for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Fair use is the model that usually covers news outlets, when discussing content or showing movie clips, for example. Teachers showing a movie in class for the purpose of education and discussion is another. Quoting a text in an article, or sharing examples of content directly relevant to commentary or criticism is a prime invocation of fair use.
All of this said, let’s talk about my photo, at the root of this little argument. Here we have Andy and Tony, cosplayers from the Comicare non-profit. They dress up in costume, visit, and deliver comics to kids in hospitals, an endeavor I find to be highly worthy. I snapped this photo at Chase Field, in Phoenix, during their ‘Superhero Day’ event. We borrowed Thor’s Hammer (one of us was worthy), staged the shot, and voila: hilarity. Now, even though I own the photo, there are things I can’t do with it. Primarily, I can’t use it to promote or endorse a product, because I don’t have a model release from the two (or more) individuals that are easily identifiable in the image, to use their likeness to do so. I can print it on canvas, or a poster, and sell it as a unique piece of art. I can share it online so others may enjoy it, as I have done. But until I knuckle down and do the paperwork, I can’t use it to sell something else. And that means no one else can either. I couldn’t authorize it if I wanted to.
So my primary complaint: When Salt Lake Comic Con posts my image on their social media accounts, and includes a clear encouragement for viewers to purchase tickets to their event, that qualifies as an activity that isn’t permitted by me, the copyright holder and owner of the image, because even *I* can’t perform it. I can sell prints as original art, but I can’t license it for advertising/product endorsement. Full stop.
That said, let’s move on to the second element of my complaint with Salt Lake Comic Con: The basic act of taking someone else’s original, copyrighted work, and using it to promote or solicit sales of goods or services, without their express permission (written or otherwise) is copyright infringement. I know that sounds like my original complaint, but I’m not talking about my content anymore. I’m talking about pretty much every posting of static content that SLCC makes to social media.
As a seeming matter of standard procedure, SLCC’s media team will post any interesting, industry-relevant content from around the web, new or old, to their Facebook page (which is often simultaneously shared to Google+, Tumblr, and others), and far more often than not, include a link and hash tag to promote their online ticket sales. In many cases, static images, like various popular memes, are uploaded instead of shared from the source. This is a problem, and it’s related to the core of my argument: Every photo or piece of art on the Internet created since 1983 is copyrighted, whether it is marked with a copyright, watermark, or not.
Facebook’s Terms of Service have an interesting piece of text in them:
“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”
When SLCC uploaded a copy of my photo, instead of sharing it, say, from my artist page, they were effectively asserting to Facebook that they owned the rights to the content, as the uploader, and attempted to convey to Facebook distribution rights they didn’t possess. It’s why Facebook, like many other social media platforms, has a process for reporting infringement, vis a vis the Digital Millennium Copyright Act. The DMCA contains provisions to protect service providers, in this case Facebook, from the actions of their customers.
I sell my art. It has value. If someone steals something from your yard sale, and sells it themselves, thereby profiting from their theft of your possessions, it’s not much different than profiting from the use of someone else’s copyrighted material to promote your product without their permission. The Internet makes it incredibly easy to violate copyright, and many people do it over the course of the day because it seems like a victimless crime. We went through this famously with Napster, when it was mp3’s. We’re going through it today, with movies and TPB. We grouse about the FBI warnings on DVDs that we can’t fast forward through, but as a culture, we seem tend to ignore the basic premise because if it’s making us happy right now, it can’t be hurting someone else, right?
On the heels of the Reddit traffic, I then had this to deal with: A co-founder of Salt Lake Comic Con, Bryan Brandenburg, spending his weekend on Facebook, declaring that I’m guilty of libel and slander.
After I told him multiple times to consult his counsel before continuing his posts, he blocked me and carried on. The end result was a number of messages to me from various people, letting me know what was being said. Not how I wanted to spend my weekend. I think it’s great that they owned up and donated to Comicare, as I intended to do when they paid my invoice. But, since it’s tax deductible, it’s not much of a penalty, is it? In my opinion, it’s backhanded, at best. Bryan attempted to cite Facebook’s AUP about distribution of images, and the fact that there’s an unwatermarked version of the image that started this hoopla in my Facebook galleries. He’d be correct, if SLCC had shared the image from my gallery, which they did not. Even so, SLCC would still be in violation of my copyright for using my work to promote their ticket sales, without my permission.
One commenter came to SLCC’s defense, and had this kernel of knowledge to share: “You know what I’m hearing someone with the small ego crying that their picture was shared get over it move on with your life or you can choose to dwell in the past its your choice to make”
I’m not crying that my photo was shared, I share my work on a regular basis. I want people to see the things I shoot. What I don’t want is someone else profiting from it, when I’m shelling out the cash for my equipment, travel, and time. What right does SLCC have to use the work of others to promote their convention, when it translates directly to money in SLCC’s pockets? I don’t know about you, but in my opinion, that’s theft. You can try to defend that if you want, but consider what kind of person that makes you.
Fast forward to yesterday. This particular image, meme text notwithstanding, is the work of Daniel Picard, a fantastic photographer in Ottawa, Canada, who has a hilarious and well done book of images created with superhero action figures. It took me perhaps five minutes to track the image to its owner. He has no prior agreement with SLCC, and had given no permission for the commercial use of his image. I know this because I emailed him to discuss this usage. It took almost no effort on my part to identify and reach out to him, and he responded almost instantly. Having already profited from this work, his stance was notably softer than mine, and he reached out to SLCC to ask them to edit the posting to at least credit him.
At least SLCC didn’t add their watermark this time.