Swiping. Ripping off. Stealing.
Call it what you want, but the creation of unauthorized and uncredited derivative works is a problem that the entire creative class has been grappling with since the invention of the printing press (in western societies, at least).
Although alternatives to copyright law have risen in popularity, most people still rely on maintaining some sense of ownership over their original works in order to extract value from them.
As an individual or a studio, what can you do to protect your original works? To what extent does copyright law offer protection? And what can you do if your work has been ripped off?
These are some of the questions we asked attorney and negotiation coach Katie Lane. Like her website, Work Made for Hire, her responses to our questions are a gold mine of information that all creatives working in the 21st century should read and re-read on a regular basis.
Q&A with Katie Lane of Work Made for Hire
Do you see a general rise in swiping across creative industries? And if so, do you think social media has played a part?
I agree that there’s an increase in people misusing other artist’s work, and that social media plays some role in that increase.
Sharing art and things we find humorous or interesting has always been part of how we communicate with one another. I think the role that social media plays is that it makes it a lot easier to communicate with visual art. Because we can communicate faster and draw from a variety of visual sources in one conversation on social media, people are more comfortable, and more fluent, using visual media as a staple of how they communicate.
I don’t think that every use of visual art on social media is a misuse, though, at least not in terms of copyright law. But because of the way social media has enhanced our ability to communicate visually, when we start creating art, we’re doing so with those social media skills as part of our vocabulary.
And because on social media we use art, it’s understandable that some of us use art when we create. For me “using” is different from “referencing.” When we “use” art, we keep it largely intact; details might change, but the art is still recognizable in what we create. When we “reference” art, the art influences and informs how we create; a transformation takes place so that the original and our work are different.
I think how we communicate on social media is part of why you see the rise in swiping, but I don’t think it’s the cause.
There’s also the fact that the currency of social media places a high value on visual communication. Visuals are an easy way of getting liked or faved or tumbled or whatever. If I can use your thing to get what I want, why would I create something of my own?
So I think how we communicate on social media is part of why you see the rise in swiping, but I don’t think it’s the cause. The cause, in my opinion, is not being mindful of what we’re doing and how we’re doing it.
Sometimes that means we don’t realize we’re using someone else’s art and sometimes that means we don’t realize we can’t use someone else’s art the way we are.
Is there some sort of litmus test that people can apply to understand if a work is indeed a rip-off?
First, it’s important to know what copyright law protects.
Copyright protects the expression of ideas, captured in a “tangible medium of expression.” It does not protect the ideas themselves though, and that’s super important to remember. Copyright protection means that only the owner of the copyright can use the work, and that protection lasts a long, long, long time.
If having a copyright meant you had exclusive control over the ideas in a work, we’d run out of art real quick. Imagine if I was the first person to take a photo of a sunset and that meant that no one else was allowed to use sunsets in their art until my copyright expired. That’d be dumb.
So first off: if the piece is riffing off of an idea that’s in your work, but doesn’t mimic how you expressed that idea, there’s not a copyright issue.
If the piece is riffing off of an idea that’s in your work, but doesn’t mimic how you expressed that idea, there’s not a copyright issue.
In visual media, I think it’s easier to understand the separation between ideas and expression. An idea might be a character who’s a 96-year old lady ninja. The expression is how that character looks, her design.
If the swiping is of the expression in the original, the expression was unique to the creator of the original, and the owner of the original didn’t give permission, the law is pretty straight-forward: it’s an infringement.
Unless it’s not.
“Unless it’s not” is Fair Use, which is the part of the Copyright Act that says sometimes it’s OK to use someone else’s copyrighted work without their permission. There is no clear litmus test for figuring out if a use is fair or not, because there are four factors that we have to “balance” against one another:
- What is the purpose and character of the use? Are you using the swipe to make money? Probably not fair. Are you using the swipe to criticize or comment on the original? Probably fair.
- What is the nature of the original work? Is it something that was likely to be used by others, such as a reference book? Then using it is probably fair.
- How much was used? The less of the original you use, the more likely your use is fair. Unless you’re using so much of the original that you pretty much just copied all the best bits. (BTW, all that guidance that says using X seconds of film/music/whatever is “always” fair use is bogus.)
- How has the use effected the market for the original work? Will someone buy the piece that uses the original instead of buying the original? Is the use something that’s usually licensed and that the owner of the original has licensed? If so, you’ve denied the owner income, and that’s probably not fair.
Notice that everything is “probably”? That’s because no single answer to these questions will determine if a use is fair or not. You have to look at all of them, together, on balance. Which is why there is no easy, “always right” guidance on fair use.
For folks looking for helpful guidance through the fair use murky waters, I recommend my friend Thomas Crowell’s book, The Pocket Lawyer for Filmmakers. Thomas is an attorney with a background in film and television, so he understands the conundrums creators face better than most.
Is there anything people can do to proactively protect themselves from being ripped off?
Make it easy for someone to know the work is yours and how they can contact you.
When doing work for a client, it can be valuable to negotiate a language that says they’ll credit you as the creator when sharing the work online, with a link back to your professional website. Even if the client will own the copyright to the work, it’s helpful to have the work connected to you online.
For my illustration and comics clients, I often recommend having a “how to license my work” resource on their website that’s easy to find and provides info on contacting them for licensing inquiries. Making it clear that you’re open to licensing your work, or that you’ll at least consider inquiries, and how someone can go about doing that makes it harder for folks to claim they “didn’t know” they couldn’t just swipe it.
For work you own the copyright to (so, not a work for hire and not a situation where you’re assigning the copyright to the client), it can be helpful to register your copyright. You own the copyright in your work as soon as it’s created (unless it’s a work for hire), but registration clarifies the legal relationship between you and your work.
If you register within three months of publishing, you’ll have access to certain damage fees and the ability to recoup attorneys’ fees if there’s ever a lawsuit. The process is pretty simple, costs between $35 and $55 for most registrations, and is DIYable from the Copyright Office’s website, copyright.gov.
If someone has been ripped off, how do you recommend they respond to the situation?
If you own the copyright, and the expression in the work, not its ideas, are being ripped off online, the Digital Millennium Copyright Act (DMCA) can be a helpful tool. But you shouldn’t use it lightly.
The DMCA says that web service providers (like Twitter, Facebook and Tumblr) can’t be held responsible for infringement on their sites by users if they take down the infringing material when they’re notified. So if you report infringement using the DMCA, the material will usually be taken down immediately.
Which is why you shouldn’t do it willy-nilly. The DMCA can be misused to silence speech or intimidate, and that is Very Much Not Cool. A recent court case determined that if you file a DMCA take down without considering whether a fair use claim might apply, you could be liable for damages the defendant suffers.
If you’d like to learn more about using the DMCA, I’ve written about it on my blog.
When is legal action the right thing to do?
That’s a tough question. Bringing a lawsuit against someone can cost a lot of money — often more than the amount you’ve lost from the infringement.
To address that problem, Congress is currently considering proposals for a small claims process that the Copyright Office could administer where damages are less than $30,000. My friend and fellow attorney Kiffanie Stahle has a great overview of the proposal on her site. I recommend reading up on it and contacting your representatives to let them know how the proposal could impact your work.
If you’re considering a lawsuit to address copyright infringement, I recommend talking to an attorney who specializes in litigating copyright claims. They’ll be able to help you understand the benefits and risks of bringing a lawsuit and what you should expect from the process.
How do people find legal help?
Many states have a Volunteer Lawyers for the Arts program, with California and New York having the largest. It’s a great place to start, because these programs offer pro bono services and typically they have a database of attorneys in the state who are offering services to artists. Even if you don’t qualify for the program’s pro bono services, they can often put you in touch with lawyers who can help.
Copyright law is a particular beast, so while it’s OK to ask your dad’s friend who’s an estate attorney what you should do, don’t stop there. Ask peers for recommendations and use your Google (or Bing) Fu to locate lawyers who specialize in your industry and in copyright. There are a lot of us out there these days!
If you’ve worked with an attorney who’s been particularly helpful, share that person’s name and contact info with your community. So much of being able to deal with an issue is having access to the right resources; if you know of a good resource, share it!
About Katie Lane
Katie Lane is an attorney and negotiation coach who works with artists and freelancers to help them protect their rights and get paid fairly for the work they do.
Based in Portland, Oregon, she helps her clients successfully handle all sorts of sticky conflicts and shares negotiation and legal info for creative professionals on her blog, Work Made For Hire. Her favorite thing is teaching people who are intimidated by negotiation how to get what they want with confidence and calm.
You can follow her on Twitter @_katie_lane.