This is not an easy subject and everyone has an opinion and draws their own lines on what is allowed and what it too far. There are also SO many different ways these acts are committed. Sometimes art is used and is unchanged, sometimes art is used unchanged with a new persons name attributed to it, sometimes the art is modified to some degree, sometimes the art is recreated so that the heart and soul of the original is still there but the details are changes, and sometimes the ideas or creations of two or more things are just shoved together to make a 'new' thing. To me, these are all interchangeable.
An article popped up on my Facebook feed and I was a little curious. The article centered around a fan made set of Star Wars themed Magic the Gathering cards. I figured all of the art had to be swiped since the lead in graphic was obviously from another Star Wars project. I poked around the article and the cards a little and quickly found not only my art being used but many other pieces that I recognized as friend's work or work used on projects I had worked on or knew of.
Article in question. Not going to link to it, but I am sure you can find it.
Okay, let's get some things out of the way... "They are not making any money from it, how are they hurting anyone?" "This is the highest compliment!" "They are just fans making something for themselves and fans." "They are making something NEW and are not at fault." Nope, nope, nope, and nope. At worst they are thieves and at the least they are severally taking advantage of MANY people and the COUNTLESS hours of time and effort that went into creating the original artwork. And not just the hours of time of the artist, but all those involved in the production of the original. The art directors, writers, game designers, etc are all tied into these types of actions.
Looking at this through the lens of just me and my two pieces that are involved with this, let's break this all down. First, something that is RARELY, if at all, done was that I and the rest of the artists were credited. This in and of itself is an miracle, and I wonder if the original MtG cards had not always included the artist names if the names would have ever been included. So, one good thing, I guess. Now for the rest...
My Salacious B. Crumb painting that I originally created for the Fantasy Flight Games release of the Star Wars Card Game now is being used on a custom made and distributed Star Wars themed Magic the Gathering Card. I am 100% sure that no one that owns that art was contacted about this usage.
My art seen here was created for the Fantasy Flight Games release of the Star Wars Card Game. FFG / LFL / Disney own the art and all usage rights. I am allowed to use it for promotional purposes and that is the beginning and end of it. DONE. This person has taken card art I did for a company and used it unchanged, save for cropping off my watermarks, copyright info, and most of my signature and is now using it as a card illustration. There is no evolution here, there is no transformation, the art is being used in the way it was originally intended.
As far as the 'not making any money' argument, when someone illegally downloads music to listen to, they are not making any money from it. They are enjoying it for what it is and doing so without the creator or owner being rightfully compensated. Once that person has that illegally obtained music they can pass it around, for free, harming the creator even more. No money is being made, but there is still a victim. We are fooling ourselves if we want to draw distinctions between a song and a piece of art. If it is taken and used without the creator / owner being compensated for their time and effort then it is equally wrong.
My Arcona Rumor Monger, also created for the FFG Star Wars Card Game. Again seen here unchanged except for the removal of watermarks, copyright, and signature.
Obviously time and effort went into writing and working out the cards and their mechanics. That goes to whomever put this all together, they made that. They did not make the art and I am 100% confident that the time they devoted to making the stats for the cards is a drop in the bucket compared to the time and energy of the artists. Not to mention that the card template, icons, etc are all trademarked or copyrighted by Wizards of the Coast. Just because someone worked really hard to make something new and then used the property of someone else, in no way justifies it.
'This is made by a fan for fans' ... and your point is? Why do we make excuses for something that is wrong? If the art is so important to the finished product then you REALLY need to be an adult / professional / thoughtful person and either do what has to be done to make / buy / license the artwork or you go without. Or in the least, NO NOT POST IT ONLINE FOR ALL TO SEE.
I know we live in a time where Google offers up images without limits and that we share things online. BUT the rules have never changed, it is just so much easier to take without penalty and share without consequences. I am sure these people would feel a lot differently if they were the victim, but maybe they wouldn't. Maybe they don't value their time and effort, maybe they think they have done right by everyone, maybe they would never imagine that they have done anything wrong. I have dealt with plenty in the past that feel justified to take whatever they want and attack any that question them. I really feel sorry for them, but it does not grant them immunity or justification.
These are my two cents, for what they are worth.
*EDIT* I have had some additional thoughts after this post originally went up:
These pieces were work for hire, the client hired me to make the work, payment for services rendered. They own it and have the copyright. It is their fight if this would ever escalate to a legal matter. They would have to send the cease and desist, they would have get their lawyers involved, it is their dog in the race. For better or for worse, this did not involve a piece of my own art. I can not act on this unapproved usage of my these painting.
That said, I have still been harmed. They stole my time and a part of my life. I spent a part of my life to make these paintings. While I was compensated for the work, the payment in no way actually comes close to compensating me for the time and effort that I spent on these paintings. I do some of these pieces because I want to, because they mean something to me, as a way to better my skill set at the same time I get a little money and a published piece, etc. By these pieces getting used without compensation to me they are taking advantage of that time I invested in making them. I could have used that time to do any number of things and I chose to make a painting for a client and this person(s) has come along and taken that from me. A part of my life that I will never get back. I think this get to the heart of what angers me so much about these types of behavior. These people leech off my time and effort, and the effort, time, and money of the client, without any consideration or compensation.
Say you are waiting in a restaurant for your meal. You are very hungry. As the waiter brings you your food some other person comes by and eats it all before it get to you. You of course will not have to pay for that meal and another will be made for you, but you have been wronged all the same. This might not be the best analogy, but I think it gets the point across. The major victim is the restaurant, but you needed that food and now you lost the time that had already passed to make it. NO ONE would be okay with being the hungry person in the scenario. Yet music, art, games, and more is constantly being stolen without thought or concern.
Okay... I think I am done now.
That is all for another exciting Wednesday on the blog, see you have here on Friday! Until then...
For more samples of my work or to contact me regarding my availability head over to my website: www.christopherburdett.com
My thought is that while I would be upset about this when I see my work, I would be far less bothered by it if it were just a "fan project" for fun. The issues really come when someone decides to use my (or anyone's) work for profit. So, as long as they don't SELL the cards or any form of them, such as larger prints, I would take it as a compliment to my work by fans.
ReplyDeleteWhy is it any different? A fan illegally downloading music or movies is just as bad as a person who then sells the music or movie. They are still taking advantage of all the time, work, and money that went into making the original art. There is a lot of gray areas when it comes to this stuff, but if you are going to put in all the work to make card stats and post it online and make a big thing of it then you need to get your own art or not use any. If I make a video of myself working I have to get public domain music, I can't just go grab some Beatles and put it over my video. I am not selling anything, but I still can't do it.
DeleteTheft is a poor excuse for a compliment.
The point is, they CAN do this under the fair use clause. They aren't making money off it, are they? And they credit your work as well. If they didn't do those two things, you would be justified. But fair use is fair use.
DeleteIf only there was a copyright attorney that could way in on this and settle it once and for all... oh wait! I know an attorney and he did...
Deletehttp://www.sethpolanskylaw.com/2016/06/10/intellectual-property-the-wrath-of-cons/
"I regularly hear uneducated arguments, often citing “fair use”, but in 99.9% of the situations I’ve encountered these arguments are utterly inappropriate."
"Question: Do you own the IP in question?
A1: Yes.
Then you may do as you wish with the IP.
A2: No.
You have no right to profit from work featuring the IP, and almost no rights to create infringing work not for profit either."
Another thing you need to take into account, which may not apply here, but if they posted that art / magic cards on their website and then got a lot of traffic because of it. And say they had some ads on that website. They just used everyone else's art and attracted a large amount of traffic netting them a tidy profit on ads. Thus making a profit off someone else's work. I agree with Chris here, this is blatant theft.
ReplyDeleteYes, thank up. This was brought up in a discussion on Facebook. The site posting a link to everything has ads all over it and this post most definitely generated traffic. ...which is why I am not linking to it in this article. Money is being made, maybe not by the person(s) that made the fake cards, but by those that are posting it.
DeleteThe fact of the matter is, you own these paintings as much as the carpenter who built your house owns your house. Complaining about art theft of a "work for hire" piece is akin to that carpenter complaining about someone shooting a movie without permission inside a house that they once built.
ReplyDeleteWhat's being done here is making you feel bad and is a crime, but it wasn't a crime perpetrated against you.
You, unfortunately, are very wrong. I am very much a victim here, in many ways more so directly then the client I produced the work for. You are making excuses for theft and for some reason trivializing this crime. When I can come into your house and take whatever I want, then it will be okay to steal art. If you an hourly paid job and I can come to your job and make you volunteer more hours on the clock to something I want done, then it will be okay to steal art.
DeleteThe point that the poster is making is not that it isn't a crime, but rater that it's not a crime against you. If you painted an oil painting, and someone bought it, and then it was stolen, the vicim is the owner of the painting, not you, the artist.
DeleteNope. This is no different then pirating music or a movie. They got these images either off this very blog or my website. They came to me and took my work. Yes, legally other companies have direct say on any action, but every time a piece of my work is taken and used for something else, often without my name or URL tied to it I loose the opportunity to sell an original, a print, connect with a new client, and on and on and on. My work is my connection to clients and is a revenue source. To say I am not hurt by someone going off and making something new with my work and getting all the attention while I repeat nothing is very naive.
DeleteI'm not saying that it doesn't have a negative effect, could be emotionally hurtful, or that it's right, but _legally_ the word theft has a specific meaning. When someone pirates movies, steals artwork, etc, they do so from the owner of the copyright. In this case, unless I'm misunderstanding things, the poster who started this thread pointed out that this is not you. It sucks, I'm sorry it happened, but honestly, if they aren't making money off of it, maybe the best thing is to just get in touch and tell them not to use your work. I doubt it was done with malicious intent.
ReplyDeleteC. You are dead on. This stuff is theft and illegal. I'm an IP attorney. I know. We should chat about it some time.
ReplyDeleteRight on. Yeah, having a better knowledge of the ins and outs would be great. Thanks!
DeleteI couldn't agree more. Someone doesn't need to make money to make it wrong. They just have to use it. Unlike music, art available to view online is "consumed" for enjoyment instantaneously. However, to use the art, for fun or for profit, is definitively crossing the line when done without compensation and permission.
ReplyDeleteThere is an argument for Fair-Use here I believe. Though without the creator taking it to a judge you won't know for certain.
ReplyDeleteTo quote the IP attorney two comments up, "This stuff is theft and illegal."
DeleteThe thing is, Fair Use is a nebulous area that's ultimately determined by a judge. A lawyer's opinion is just that: An opinion. If one party is claiming it's Fair Use and the copyright holder is saying it isn't, then the legality of the situation is left in limbo until a lawsuit forces the courts to decide.
DeleteThat's the whole point of a lawsuit. If the guy who made the custom cards says "I claim this is Fair Use, therefore I can use it no matter how angry that makes you feel" you can't just go and say "Nuh-uh." You need to sue him - or in this case, you need to ask the client who holds the right to sue.
I don´t think the comparison with movie and music pirating is appropriate here, otherwise the music and movie industry would have been bankrupt years ago. But this is clearly not the case and after years of slapping paying customers the slogan into the face that piracy is a crime (you remember the first thing you saw when you played a dvd from 2009?) It does not happen anymore. Why? Because corporations have learned that these so called "criminals" are their best and most paying customers...ooops.
ReplyDeleteActually it is not OK what happens here, but shit happens and as a professional, I would go on and would have better things to do then ranting over things that I can´t even change.
Wait, what? Ranting? Who is ranting? I have been posting three times a week on this blog since 2009 about the ups and downs of being a working artist. This is just my post for Wednesday of this week. This is also only the second time I have touched on this subject in all these years. This type of thing is a reality of working in the digital age, so I am talking about it on my blog. Hoping to get people talking about thinking about this.
DeleteI make custom magic cards for fun, Wizards of the Coast seems to generally not care about people using their assets making custom fan cards as long as you don't start trying to put them out there to compete or anything. I'll admit that they have the right to demand those assets no longer be used though.
ReplyDeleteI specifically avoid using any copyrighted art on anything I make though, instead opting for public domain works. I see the majority of the small fan community wantonly taking art from anyone or anywhere they feel like though. I think it is just a small symptom of the online age, where people generally treat everything as though it was freely given if it is online
The work is transformative plus they gave you credit, they weren't claiming the art as theirs, hell they aren't making any money either.
ReplyDeleteThis is hardly transformative. Taking card art and using it as card art with the same name... yeah, very transformed. I did point out the saving grace of the artists, for once, being credited. They may not directly be making money, but all the site sharing them with ads are totally making money. Also, this post used these pieces as a larger issue, they are just the most recent. This is all stated in my post.
DeletePeople are going to do what they are going to do. But they should really consider the many many people that are effected by what they do and who have spent loads of time, energy, and money to create the things they are just taking.
And this is why copyright laws need to be changed for the modern world.
ReplyDeleteDo you think Shakespeare has been fairly compensated for his work? How about Davinci? Mozart? All these artists (and many others) created their works and they are still being "stolen" left, right, and center all over the world.
What would be a fair price for someone to use your art in a fan endeavor, one where they plan on making zero dollars for it? If they had contacted you (and others) ahead of time, would you have allowed your art to be used free of charge?
And this is why copyright laws need to be changed for the modern world.
ReplyDeleteDo you think Shakespeare has been fairly compensated for his work? How about Davinci? Mozart? All these artists (and many others) created their works and they are still being "stolen" left, right, and center all over the world.
What would be a fair price for someone to use your art in a fan endeavor, one where they plan on making zero dollars for it? If they had contacted you (and others) ahead of time, would you have allowed your art to be used free of charge?
A heads up that someone was intending to use my art would be nice. For pieces I do not own copyright to, just having the professional courtesy of letting me know would go a long way. With these pieces I can not allow of deny usage, but they are still my art and if people are going to take them to use in their own project, do me the favor and let me know you are coming to me sites and taking the clean higher rez version of the image that I put up as a promotional piece. For pieces I own, unless there is some sort of compensation or agreement up front I do not allow usage. It is mine and I have that right. I can not go into their house and take things to use, they can not come to me and take my art to use.
DeleteAs far as Shakespeare, da Vinci, and Mozart... they are dead. Copyright and ownership are completely different if the creator is dead.
Why not make pay the people who you selled your work for the damages on your person. They had your work in digital storage and not protected your work. Today there is lot of tools to protect digital works. If they fail in that they should pay for that.. At least is a thing..
DeleteYou make it sound like whomever used your art has literally stolen the original painting when in actuality they have merely taken a low resolution copy of it. All existing instances of the art are not lost or have not lost any value. In fact, I believe people would be inclined to learn more about the artist if they liked a piece of art they would not have seen otherwise, which in turn could create a small amount of business for the artist, or at the least not affect the artist in any negative financial way.
ReplyDelete*YAWN* this argument is so old and used up. Theft is THEFT. Can I come into your house and take your TV and car keys and then drive your car to my house to watch your TV and after a few hours bring it back? That would be cool right? The creation of my art took time and effort. I used up part of my life to make it and someone is just coming along and taking it from me without compensation. My paintings take about 40 hours to make. So I assume I can go to your job and expect you to just give me the product of 40 hours of you time, for free?
DeleteOh, yeah, and when people take my art and use it most of the time there is no credit and most of the time they go out of their way to remove my watermarks, name, and urls on the work. 95% of the time I am cut off from any connect to the art so there is no way for any additional financial benefit.
The 'nothing was really stolen' argument is just a way to make people feel okay about stealing.