In my previous post, Copyright and Fractal Art: What the law really says, I quoted from the US Copyright Office what their definitions of copyright privileges and fair use exemptions were. Fair use is something that is always a matter of argument and degree, but some scenarios make for extremely simple arguments –against fair use.
The examples I am going to mention, fortunately, have all disappeared. I can’t link to them or post screen shots because they’ve either gone offline or literally, changed their address. A few are still online but I don’t want to link to them because it’s not really necessary and besides, they are real examples of copyright infringement. As a result, the contents of this posting will have to take on a rather anecdotal style. The actual facts of the infringement aren’t that important anyway as they merely serve as examples of realistic, online situations involving copyright in the fractal art world.
The Case of the Cell Phone Wallpaper Salesman
If you’ve hung out on Deviant Art for any length of time you will have heard about this one and maybe know more about it than I do. A well known fractal artist discovered some of his fractal images on a website being sold as part of a collection of images to be used as wallpaper for cellphones. He noticed the work of other fractal artists and posted his discovery which is how I came to know about it.
Is is fair use? Of course not, but let’s go through the four factors that the US Copyright Office gives for determining fair use and is the format which Columbia University’s analysis of (attempted) fair use examples also follows. The four factors are: Purpose; Nature; Amount; and Effect. (For an official explanation of the four factors, see 107. Limitations on exclusive rights: Fair use from the US Copyright Office website.)
- Purpose: to make money selling the artist’s work. This weighs heavily against fair use because the purpose is purely commercial as opposed to educational, informative or commentary and review.
- Nature: the copyrighted works were creative in nature and taken from a site where they were also available for sale, although not as cell phone wallpaper. Factual works, like photos of natural scenery or say, illustrations of mathematical formulas, are more likely to be fairly used because they have obvious educational and informational applications. Works that are entirely the product of a person’s creative expression need a stronger argument to be fairly used.
- Amount: although there would have been some reduction in resolution and resulting image quality to display it on the cell phone screen, the images as sold for download were identical to the originals taken from the author’s website.
- Effect: the copyright holder’s original images are used partly to solicit sales for high resolution prints and are already available for anyone to use as a cell phone wallpaper if they have the technical knowledge. Lack of attribution for the artist however, would prevent people from buying high resolution prints and frustrate one of the artist’s purposes for freely posting the images.
Is there anyone who would not say that this is a clear case of copyright infringement? I think the main factor is that the use is purely commercial and has absolutely no criticism, comment, news reporting, teaching , scholarship, or research aspect at all. There doesn’t appear to be any commercial harm to the work though if you really look at it, and, in fact, the infringer is only offering a use for the original images that is already available without restriction, although that use (saving the image to your cell phone as a wallpaper) would also be copyright infringement as well, strictly speaking.
The Case of the World’s Greatest Artist
This one is actually pretty recent, but from what I’ve heard it’s something that’s been cropping up every so often for quite some time. A new user appears on Deviant Art or Renderosity and is suddenly in possession of a “personal” gallery of what is nothing more than the greatest hits of Deviant Art’s fractal art section. A few prowling Deviant Artists soon discover the gallery, are immediately outraged, break the safety glass and pull the nearby Copyright Alarm. The moderators have day jobs, however, and they also have to go through a lengthy checklist before removing the offending user’s account, but before all that they need to check it out because there’s some disbelief in their own minds because “why on earth would anyone do that?”
- Purpose: Social prank. (Apparently) non-commercial.
- Nature: The copyrighted works are creative artwork.
- Amount: Entire images at the same resolution (image size) as the originals –identical copies of digital files.
- Effect: Artists would not have profited from any sales of images bought through this bogus gallery and possibly suffered some damage to their reputation from buyers who might have received low quality prints (the bogus artist would not posses the necessary high resolution files to make proper prints). Furthermore, the true authorship of an artwork is confused when it’s displayed without the artist’s name and especially in this case, when it’s displayed with another artist’s name.
Artists have a legal right to attribution even if they sell their copyrights to an image (see 106a). It’s easy to laugh this one off because it’s pretty hard to put up a bogus gallery on a place like Deviant Art without a huge and immediate public outcry (or do anything else). But the possibility really does exist of selling prints and therefore the commercial exploitation of the copyrighted works and their potential customers also exists which could result in damage to the real artists’ online reputations.
Most examples of this sort of thing are just pranks, but in a similar way, today’s real-life threat of computer viruses started off years ago also primarily as pranks; the criminal potential of bogus galleries is something that could give this type of copyright infringement a much more serious outcome if the artwork has significant commercial value. Printing your name on your images is perhaps something artists ought to consider if they see their work as having commercial value and they engage in business on the internet. Just like having a burglar alarm sticker on the front door of your home, it might just be enough of an annoyance to dissuade anyone who has criminal intentions.
In case you’re still wondering, I think it’s safe to say this is a case of copyright infringement.
The Case of the Really Bad Musical Slide Show
An adoring fan has visited your fractal gallery. He just loves your stuff. He loves music too. He plays cultural match-maker and weds your wonderful fractals to Mozart. He then uploads the resulting video to YouTube. He’s got your name in the video so people know you made the artwork, but there’s no link to your site or anything else that might direct fresh fans to the original source. Somehow or other you find out, but not before some time has elapsed. You email the fan because he’s got a contact address posted…
- Purpose: To (attempt) to create a beautiful thing just for fun and without commercial intentions.
- Nature: The images used are creative works.
- Amount: He used the whole image, and several of them are ones considered to be your best but they’re so small and YouTube’s compression has smudged them so much they’re hardly a substitute for the originals and would probably send interested viewers to your site if there was a link. The main feature of the video is your work, the music (albeit Mozart) is commonplace and merely a background.
- Effect: Not likely to have much effect on the commercial sales of your artwork although, possibly, some interested viewers might google your name and find your website while others write you off entirely as the “Painter of Sludge™”.
This is not fair use because the purpose is merely to exploit the aesthetics of the artwork. The use is not “transformative” as it doesn’t use the artwork in a way which is different, and therefore, non-competing, with the the original. You can’t simply take copyrighted work and display it because you’ve got a “great” way of doing it. For that you need to either own the copyright or get permission.
Furthermore, the work is displayed as a poor quality reproduction, although perhaps not intentionally (YouTube’s compression can really produce bad results sometimes), and this can present a poor impression of the artist’s work and subsequent reputation which is also a violation of copyright law (see 106a again). Fans like this aren’t doing you any favors.
The Case of the Caring, Sharing Customer
I don’t know if this has ever happened, but I suggest it, hypothetically, because it could well become “the end of the world as we know it” with respect to copyright and make all the other crimes look like petty annoyances.
You put together a really nice DVD of high resolution artwork (but not print grade) and even spend a little money to give it some professional features. One of your customers buys a copy, transfers the entire disk to his hard drive and then uploads it to Pirate Bay because they think it’s great and want to share it –with the whole world.
People who consider your $20 price tag to be “ridiculous” and who are accustomed to ripping off big, money-stuffed media companies while they sleep, download your DVD and highly recommend it –on Pirate Bay– not at your online store. After a year or two, sales have never really taken off for your nice DVD project although you’re always selling a few, but it’s just your first and you’re half way through making the second one which you know will be much more impressive. But the business angle doesn’t look so clear anymore because online “file sharing” has a better price tag and faster delivery and how can you possibly compete with that?
- Purpose: To make it possible for people to get your DVD for free.
- Nature: The works are creative.
- Amount: An exact duplicate of the entire work.
- Effect: It makes buying the original from the copyright holder unnecessary and thus potentially destroys the commercial value of the original.
I just put those four factors up for the sake of consistency. This one loses the fair use test for every single factor but that’s not surprising because the sole motive for this kind of activity is to sidestep copyright altogether so consumers don’t have to pay the copyright holder for a copy. That’s precisely the sort of thing copyright was made to oppose. The only redeeming quality here is that the pirates aren’t trying to sell the “shared” files. But then, even if they did, I guess someone would post them somewhere else and destroy their (illegal) business.
File sharing is a crime. It’s a complete renunciation of copyright law. Some people get philosophical about it and play up the pleasant feeling associated with “sharing” and it’s kumbaya qualities, but what they’re really saying is they don’t believe in the legitimacy of copyright at all. It’s obvious how copyright law views such things: the two are arch-enemies. It’s not so obvious however, which one will win in the long run.
Well, there’s the fractal art copyright crimes of the century. The way things go on the internet though, the next decade could be a whole new century.