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Copyright Infringement Dispute Highlights Issues of Plagiarism on Social Media

Posted by Rebecca Blake on December 29, 2015

Illustrator Ally Burguieres discovered this past Fall that one of her illustrations was posted to Taylor Swift’s social media accounts. The work was a copy of an illustration Burguieres sells as a print, and the fan who copied the work signed her own name rather than including Burguieres’ credit line. Swift apparently posted a snapshot of the fan’s post to her Twitter, Tumblr, and Instagram accounts to promote her 1989 tour. After a year of negotiating with Swift’s representatives, Burguieres posted on Facebook that while her infringing work was immediately removed from Swift’s account, she was offered a four-figure compensation with the stipulation that she donate the amount to an animal charity. She refused the offer since it did not include her primary request: that her work be credited to her. (Swift’s representatives dispute this account.)

In light of Swift’s outspoken support of artists’ rights, the dispute received a lot of attention. Burguieres declined to pursue the matter any further. In an interview in Hyperallergic, Burguieres stated that she was satisfied with the attention the dispute brought to the issue of plagiarism. She put her finger on the issue artists have with the culture of sharing: “I know it’s a sharing culture now, and I have no problem with sharing artwork and having a collaborative culture as long as it’s credited.” 

The dispute casts a spotlight on the tangled issues created by the prevalence of fan art, a poor understanding of copyright, and the confusion created by the terms of use on social media sites. News reports of Burguieres’ dispute with Taylor describe the pirated illustration as fan art, but the term is not accurate. Fan art is typically artwork created by fans of popular visual media – comics, movies, TV shows, video games – and uses trademarked or copyrighted images. Numerous sources caution that the creation of fan art constitutes copyright infringement. (Read Plagiarism Today’s “The Messy World of Fan Art and Copyright” for a decent review.) A further complication is the misunderstanding of the terms of use issued by social media sites. For example, a widely-held myth is that anything posted to social media is “public domain” and free for reposting and downloading.

For individual illustrators, copies of their work made by fans creates a situation complicated by the illustrators’ reliance on licensing income to support their livelihood. On one hand, the adulation of a true fan is affirming and copies of the illustrator’s work can, if properly credited to the illustrator, generate publicity. On the other hand, fan art can dilute the licensing value of an illustration. Some illustrators are tolerant of fan art. Others who request that fans refrain from publishing copies of their work – something well within their rights – are often excoriated as greedy.

In Burguieres’ case, the situation was further complicated by the fact that the Taylor Swift fan who copied and posted Burguieres’ work signed her own name to it. Swift and members of her team were not aware that the image was pirated. The ease with which the image was reposted to Swift’s multiple social media accounts – and from there, reposted, downloaded, and shared countless times – essentially meant that as soon as the fan uploaded the copy, Burguieres lost any semblance of control over her image.  

Of course, the situation would have had a different outcome had some common sense (and basic courtesy) been followed. The fan should not have signed her name to an illustration that was a close copy of someone else’s work. (In fairness to the fan, she appears to be young and naïve – the case makes a good argument for adding copyright awareness to high school art curricula.) Swift’s publicity team should also have credited the original illustrator once the piracy came to light. After all, credit for her creation was the outcome Burguieres desired the most: “It shouldn’t be that difficult to give credit.

Below: Burguieres’ side-by-side comparisons of her illustration and Swift’s social media post. (© Ally Burguieres, used with permission of the artist)

 

Allly Burguieres illustration

Apparel Company Counters Piracy Accusation with Bogus Claim of Copyright Infringement

Posted by Rebecca Blake on December 28, 2015

Canadian illustrator Eric Kim reported that his illustration of pro wrestler Randy “The Macho Man” Savage was pirated by apparel company Freeze Central Mills Inc. In October, Kim discovered that Freeze had taken his artwork, flipped it, erased part of the image, and printed it on red sweatshirts with a holiday message. Although the sweatshirt image has been altered to appear as if it were created from cross-stitch embroidery, the illustration was clearly traced from Kim’s original. The sweatshirt was sold by 80s Tees in time for the 2015 holiday season.

Kim immediately took action, contacting Freeze Central Mills through his lawyer, and requesting a fee of $1,500 for the use of his image, of which $1,000 would have gone to legal fees. According to Kim, Freeze returned an offer of $350, a paltry sum. (Kim estimates that 1,440 sweatshirts were sold, generating $20,106 in income for Freeze.) The website which sold the sweatshirt, 80sTees, was far more accommodating to Kim, removing the shirt from sales, and adding Kim’s credit line and a link to his website. 

What is even more troubling about Freeze’s response to Kim is that they told him that he “was in trouble with the WWE (Worldwide Wrestling Entertainment) for even making the image” since he was violating the copyright of the image. If Kim’s recounting is accurate, Freeze is incorrect on several counts. Randy “The Macho Man” Savage was the ring name of the wrestler, Randy Mario Poffo, who developed the character while wrestling for the Worldwide Wrestling Foundation (WWF). WWE  doesn’t hold the copyright to the character. While the character has been trademarked by Savage’s wife (the wrestler died in 2011), the trademark specifically covers action figures and accessories. 

Kim might have concerns should his image violate Savage’s (or his estate’s) right of publicity. However, right of publicity generally permits individuals to control the commercial use of their images. Kim created his illustration and posted it in his portfolio to showcase his skills; he never intended to market the image commercially. Additionally, right of publicity is not covered by federal statute, but is controlled by state law, and varies widely. (For more information on right of publicity, check out attorney Robert Clarida’s article on the topic on our Tools + Resources page.)

The irony of Freeze’s response to Kim is that the company, not Kim, sought to profit from the image. If the company was truly concerned with legalities, their marketing team would have done due diligence to ensure that using the image didn’t violate intellectual property or publicity rights. In fact, Freeze appears to have a history of violating trademarks. In February of 2015, the company was found to have violated trademark law in marketing goods bearing Bob Marley’s image. And in August, Adidas filed a lawsuit that accuses Freeze of violating their three-stripes trademark. In light of their history of trademark violation, Freeze’s response to Kim appears to be a blatant (and somewhat hypocritical) attempt to deflect the illustrator by raising bogus fears of copyright infringement.

Below: Eric Kim’s comparison of his illustration (left) and the Freeze sweatshirt. (© Eric Kim, and not the WWE! Used with permission of the artist.)

Illustration of Randy

Guild Investigating New Spin on Indemnification Clauses

Posted by Advocacy Liaison on December 23, 2015

A recent trend in unfair contract terms included in blanket contracts from large advertising agencies is a new spin on indemnification from liability. We’ve heard from our friends in photographers’ organizations that photographers are seeing additional indemnification clauses in boilerplate contracts. The indemnification clauses make photographers liable forever – “indefinitely” – for any mistakes or actions by any current or future agency employees. Agencies are refusing to hire any freelance photographers who won’t sign an agreement with this clause. (For a definition on indemnity clauses, check our Contract Glossary.)

The Author’s Guild has published an article outlining the unfair burden the clauses place on authors. According to the Author’s Guild, “Authors should have to warrant and indemnify only what they actually know… to expose authors to unlimited liability for frivolous claims, facts they could not have known, or even minor inaccuracies in content, is patently unfair.

Attention, illustrators and graphic artists: your contracts and agreements may already contain this new language. What can we do to counter this unreasonable liability? How can visual creators protect themselves? The Guild is working on it…

Stay tuned for an upcoming article on indemnification clauses!

Holiday GIFts, Courtesy of Creative Mornings

Posted by Rebecca Blake on December 15, 2015

Creative Mornings, the global network of free breakfast talks on creativity and technology, posted a wonderful freebie for creative professionals during the month of December[L1] . The “GIF Channel” is a wall of GIF animations on themes relevant to freelancers and agency staff: waiting for feedback or payment, finishing a long project, or searching for motivation. The organization curated a collection of GIF animations, and has invited viewers to share a GIFt with their clients.

If you’re unfamiliar with Creative Mornings, their website is worth bookmarking. Their “Talks” page features links to over 2,600 Creative Mornings talks, filterable by city, theme, length, and language, pulled from their YouTube channel. Recently, they’ve published a channel of their most popular podcasts. If you’d care to check out a live Creative Mornings event, their “Cities” page links to local event pages.

Creative Mornings screenshot

Fashion House Appropriates Sacred Inuit Design

Posted by Rebecca Blake on December 03, 2015

In November, Canada’s CBC Radio reported that British fashion label Kokon to Zai (KTZ) stole a sacred Inuit pattern to print on their “Shaman Toweling Sweatshirt.” As it turns out, a descendent of the shaman who created the design is a producer at CBC North, which broadcast her story. Salome Awa told CBC radio that her great grandfather created the image in the 1920s for a protection parka made of sealskin. The design is considered sacred, and by Inuit tradition, only the shaman is permitted to wear the design. Since no one at KTZ contacted her family for permission to use the pattern, Awa speculates that the fashion label saw the image in books or in a film documenting the travels of the explorer Knud Rasmussen, who met the shaman.

Although KTZ didn’t initially return Awa’s telephone calls, they eventually pulled the design and issued an apology. Awa credits the outcome to the negative publicity generated by the broadcast and news stories. This isn’t the first time the fashion house has been in hot water for appropriating indigenous design. In early February, KTZ was accused of lifting the pattern on a dress from the work of Crow designer Bethany Yellowtail. Yellowtail took inspiration for her fashion design from beadwork inherited from her grandmother. Adrienne Keene, a member of the Cherokee Nation of Oklahoma, points out that cultural appropriation in the fashion and design industries shows little creativity: “It was our people who did the heavy lifting creative work for you. We designed these images. We have the knowledge and understanding of what they mean and how they can be appropriately used.

Treading the fine line between cultural inspiration and insensitive appropriation can be difficult for designers. On her blog Native Appropriations, Keene asks that Native businesses be supported, and that designers understand “…that our cultures aren’t free for the taking.” In her article “A Much-Needed Primer on Cultural Appropriation” (Jezebel, 11/13/12), Katie J. M. Baker recommends doing some basic research on the religious and cultural significance of designs and products. Those wanting a deeper understanding of the complex issues of cultural appropriation can check out Who Owns Culture?: Appropriation and Authenticity in American Law by Susan Scafidi. Scafidi, a leader in the new field of fashion law, covers the grey area of communal authorship not protected by US copyright law.

Below: KTZ’s current line of apparel features designs heavily lifted from Native American cultures, including a pattern which closely copies the work of designer Bethany Yellowtail (center dress).

Dresses from Kokon to Zai Fall 2015 line

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