Thursday, March 4, 2010

Copyrights, Fan-Art, and You

Ok, so I might be opening a giant can of worms (read that: passionate discussion) but I thought I'd take a chance on it just being an interesting topic.

As most of us know, if we make a variation of something that someone else has made, then it's considered a derivative work (or fan-art). It therefore wouldn't violate US Copyright laws.

I was recently pointed to a blog on which I was featured (by the author). She said how much she liked my finger puppets & one in particular. She then said, that because she liked it so much, she felt she must own it and therefore put it on her to-do list to make it for herself.

Now instantly I thought, but..but...it's mine! I made it! You can buy it, but I made it! You can't make it! It's mine! (you can see that my instant thoughts are much like that of an advanced 2-year-old)

I encouraged her to make her own designs (or buy the kits Craft: sells). She meant no malice whatsoever, and seems to be a very nice person. There's no sense in meanly saying, "yeah but dude, copyright." to very nice people. Of course I'd prefer for her to buy the puppet flat out, but I don't know her situation, so I can't expect or push for that. And really, it boils down to the fact that I am very thankful that people like my work, especially enough to write about it...

Well, now that I'm far, far away from the situation (a week is far, far away, right?), I'm left to think about fan-art. There is nothing to keep her from making this puppet for herself. No one would really know if she did. But legally, if she wanted to, she could make all of my puppets with mustaches, as long as she doesn't distribute or profit from them in any way.

I guess I'd just never before thought about fan art based on my own work. I know I'm not the first to experience this, and I certainly won't be the last, so I'm curious to hear about others' opinions on the matter.

Alright then: Opinion away!

15 comments:

Kristen said...

I had written a big ol' response. and because the response was so big (and ol') I clicked the "preview" button and lost it all. So now you get the summary-- perhaps that's even better.

I understand not buying something I can make myself -- I do this myself most of the time, even if I never eventually make the item.

Copying can be a good learning tool. It's true.

Does it matter who she's copying? If a woman saw a dress she liked at Target and decided to make herself one just like it-- would we hold that against her?

How would you feel if she decided to make her own Kermit the Frog puppet?

It comes down to her own creative integrity and that is her personal choice. ::shrug:: kinda sucks. One would hope she would *want* to make her own design-- and that still might happen as she's copying inspiration may strike.

But what crafty/artistic person hasn't done, or thought of doing, the same thing. Be honest now ;)

I agree that it is bad manners to post on your blog "look how cute-- it's available for sale for a reasonable price-- I'm stealing it!" ... it would be different if it was from a how-to website or blog. Or if you had posted a tutorial. Did she at least plug your shop and/or blog?

I'm interested in what others have to say on this topic.

Sharona R - שרונה ראובני said...

In short, I think it is okay as long as she doesn't sell it, especially is she mentioned you as her inspiration right next to the photo. Once she puts it up for sale, it's copying.

Now, you are entitled to the rights and you can (and if you feel you should, must) tell her, no matter how nice she may be, that this makes you feel very uncomfortable.

Many artists have problems with the marketing/sales/legal side of their business. You must not feel guilty or "not nice" when protecting your rights.

becca.elpy said...

I saw your tweets about this and didn't know what to say. I completely understand you being miffed. I would be too. Kristen brings up an interesting point...about copying a dress at Target. For some reason I feel that this is different, but probably because I'm biased, in favor of my crafty pals.

Ultimately, as long as fan-art isn't resold I could be okay with it...after I was a little miffed that they copied me.

staceyrebecca said...

Kristen, I'm so with you on the not buying thing. which is why I genuinely don't expect anyone to buy things I make, and am completely baffled when puppet builders buy something I've made.

She didn't plug my shop or blog, but she did point people to see my flickr page. But I really am not upset by it. I was taken aback by it in the first hour or so, but I quickly realized that she was genuinely coming from a place of kindness & admiration. And she's been nothing but encouraging.

Sharona & LP, I also think it's okay. I guess I had just never considered myself to make art that someone would want to copy to just own for themselves. (I have, however, had photos stolen for profit, but I can easily put my foot down for that type of thing.)

So yeah,maybe I didn't get across in the initial post that I'm really okay with it. While I'd like people to buy the originals, I understand that not everyone can afford that type of thing. Heck, I can't afford it & I make them.

Initially this whole selling on etsy was "I just want my work to be seen & appreciated." I haven't lost sight of that. Would I rather her buy the one I made? Sure. Am I glad that I've inspired someone else to dive into a tiny bit of puppetry? Absolutely!

Andrew said...

Great post Stacey! I really agree with your philosophy about this, although a couple of things you mention are copyright myths.

For example, a "derivative work" actually does violate copyright law. Copyright laws were originally intended to help promote the creation of original work by provided an economic incentive to creators and discourage derivative works. A derivative work is a work that violates someone’s copyright by definition.

Also, strictly speaking, if you copy something that is copyrighted whether or not you profit from it or distribute it usually doesn't matter. If I buy a CD and keep it for personal use it's still copyright infringement. Well, actually, I can do that here in Canada legally `cause that's the way we roll north of the 49th parallel and there are some special (limited) exemptions in the U.S. for personal copying of Cds…so bad example.

Generally though, a derivative work is a derivative work. Whether someone charges for something can affect the damages awarded in court, but that's it. It's still copyright infringement even if you give something away. For example, most fan art is copyright infringement. If I make 10 or more copies of something and they’re worth over $2500 in the U.S. I’m committing a felony (seriously!). I don’t have to sell any of it, just making it is enough to get in trouble.

Now I am not suggesting anybody sue anybody. I think copyright law - especially in the U.S. - is a little draconian, but this is the way it’s written. We need better law makers. Seriously.

staceyrebecca said...

Hey Andrew,

Thanks for pointing that out. I did some reading (because it keeps me on the internets and out of doing work on the house) & I found out that we're both wrong. :)

Derivative works actually can be copyrighted, if they contain enough original material. An example would be a biography of a poet that contains writings of the poet. Or a musical arrangement based on another song.

So if she made my puppet, but changed it enough so that it has sufficient differences, then she can claim it as her own, copyrightable work.

If she were to make it & turn it into a plush toy, or even if she were to buy it & turn it into something (keychain, plush toy, etc.) she would be liable for infringement.

There are other ways to get around it. She could make a parody of it and claim it under fair use. (Maybe that's where the mustaches could come into play) ;)

All of that being said, she seems to be a very sweet person & I don't think she would maliciously steal my design. In fact, I'd bet you a nickel that she's probably already purchased the kit from Craft:.

Andrew said...

Oh interesting. My understanding was that once a work reaches the threshold of "original" it's not longer considered "derivative" but I guess that is just semantics.

Fair use is a really murky concept that is very poorly defined in law. The rule of thumb a lawyer explained to me is that intent usually maters. Legitimate parody is OK, but the courts take a dim view of someone using Fair Use to skirt copyright law and usually see right through anyone's attempt to do that.

I just read a really interesting book about Mattel that discussed the lawsuits they've fought over Barbie. They win a lot of what I would consider "nuisance suits' that don't really infringe on Barbie, but they sue anyway. I guess the really tricky thing about stuff like this is that nobody, not even a lawyer can definatively say where the line between original and derivative lies...just offer an opinion and then it gets sorted out in court.

Ugh.

The world is a much better, happier place when everyone is just original and creative!

kelvinkao said...

Did you say "a giant can of worms"? That actually sounds like a finger puppet you would make.

As for derivative work, my understanding is that quoting a writer's poems in a biography is considered fair use, and since the main work is still the biography, it can be copyrighted. But then again, "fair use" is sort of a way of saying "let's all have our interpretations of what's fair until we have lawyers fight it out in front of a judge".

As for why I would want to buy a puppet from you, when I can build one myself:
1. There are still some subtleties that's just uniquely you. I simply can't duplicate that unique charm.
2. I am a fan of your work and want to own a piece for myself.
3. I like to support friends on their creative quest.
4. I am curious to see the techniques you use and how they come together. Yes, of course I will be looking at details like how the eyes and mouth board are attached and so on.

staceyrebecca said...

Hey Kelvin,

Fair Use covers things like parodies, use of copyrighted material in reports, whether they be for school or the news, critiques, etc. The derivative works comes in when it's not a review, but rather a new authored work that contains part of an old work. Here are a couple of links I found helpful.
For Derivative Works:
http://www.copyright.gov/circs/circ14.pdf
For Fair Use:
http://www.copyright.gov/fls/fl102.html

But yeah, it's all semantics.

As for how I attach things, seriously, I'll tell you :) Hot glue. It's my best friend. Also E6000--which will cause cancer in the state of California.

robayre said...

This same thing has happened to me a bunch of times. The thing that irks me about it is that the person publicly posted that she was going to remake your piece. It's one thing to do it and another to tell everyone, thus inspiring or prompting other people to recreate your work as well. She meant well by plugging your shop, but then undercut you when she decided not to support your shop, taking your design for her own.
Is it acceptable? Well, you've discussed the legal ramifications, but is it a "nice" thing to do? No. Was it intentionally mean spirited, no. Was the person naive? Yes.

Dain Q. Gore said...

I remember you recently recounted this experience to me.

I was just reading your blog at nearly the same time I had found this intriguing article on Warhol fakes:

http://www.nybooks.com/articles/23680?email

Kristen said...

I have a question: Don't you have to file paperwork to copyright something? or is it automatic?

for the record I'm glad I bought your finger puppets-- and not made my own rip-off of your too-cute-awesomeness. They make me smile and I like to support my friends when I can afford to do so.

staceyrebecca said...

The moment you create an original work, you hold the copyright to that work.

puppetplanet said...

Stacy Said... :Also E6000--which will cause cancer in the state of California."

Thank goodness I don't live in California! =P

As for the copyright thing, I know it's unsettling. I've only had one incident where I contacted the person about copying because the lady was selling duplicates of a style of puppet I made. She basically stole the design and just made different characters from them. Not really much I could do, and couldn't afford to do anything about it if I wanted to, but I did let her know my oppinion..... I'm awful about sharing my unwanted oppinions. lol

It's been quite a while since I started making puppets and I sort of got over the whole copying thing, or at least confronting people about it. I think it would probably still bother me sometimes, but I've got so many other things to worry about that stressing over what someone else does just seem insignificant in life. You do great work stacy, no one can copy the LIFE you put into your creations. Hugs! -Michele

Louise said...

Fanart to me is not a direct copy of a piece of work. Fanart shows appreciation, but is still creating something new. Something individual in tribute. Art feeds into other art. We appropriate what we see until we find our own expression. I've tried to copy things that I've seen, but never completely. What's the fun of doing something that's already been done? Intent is key. If I take someone's idea to profit from it, then my intent is flawed. If I take someone's idea to learn from it and adapt, then I think it's okay. Copyright should protect art but it needs to be flexible enough to share. And if we appreciate someone we should always acknowledge them.

Btw, My name's Louise, and I've had this entry open for AGES meaning to reply. I think you do fabulous teeny puppets.