“First Expressed in Nature”: Science Illustrator Pieter Folkens Raises Copyright Concerns
Posted by Rebecca Blake on May 24, 2017
Science illustrator Pieter Folkens came to our attention when we put out a call for a visual artist with experience in the entertainment industry. Not only is he a renowned marine mammal artist, Folkens has also created animatronics models used in films such as “Free Willy” and “Star Trek VI: The Voyage Home”. In April, Folkens represented visual artists with the Copyright Alliance at "Beyond the Red Carpet,” an event which showcased the creatives working behind the scenes in the film industry. The Alliance interviewed Folkens for their "Five Questions” interview series with individual creators.
“Five Questions with Science Illustrator Pieter Folkens” covers his early fascination with marine mammals, triggered by the discovery of fossilized shark teeth during a third-grade field trip, and shortly thereafter, excavating a 13.5 million year old sperm whale skull. That experience eventually led to a satisfying career documenting whales, dolphins, porpoises, and other marine life in scientific illustration and sculpture. As Folkens put it, “The creative process is an exercise in discovery. The enjoyment comes in two forms—initially learning new things followed by sharing them with others.”
However, it's the Alliance's probing of Folkens' experience with copyright infringment which is particularly illuminating. Folkens was one of the first science illustrators to focus on marine mammals, and his high-quality illustration has often been copied – his work has been infringed up to a dozen times a year (that he knows of). His method of dealing with the infringement is to send a passive notification, followed by an invoice for the use, and an attorney's letter. This sequence of steps permits Folkens to gauge the infringer's response and anticipate what steps he'll need to take. He strongly advises creators to “learn copyright law,’ recommending that they stay abreast of recent case law.
It's clear he's followed his own advice in his response to the final question, on what he would change about copyright law. Folkens cites concerns with the merger doctrine and scenes à faire doctrine, two principles most visual artists are unaware of. (Put very simplistically, the merger doctrine states that when an idea and the expression of that idea are so closely tied together that they’re inseparable, then the expression can’t be copyrighted since ideas are not copyrightable. The scenes à faire doctrine states that elements of a creative work may not be copyrightable if the genre of the work dictates them – think of folklore, stock story lines, etc.) Folkens’ concern is that these doctrines are unfairly applied to works of visual arts, citing a comprehensive law review article by attorney Michael D. Murray.
In response to our query, Folkens went into greater detail:
“The issue is developing wrongly in the courts under the notion of “first expressed in nature” that says any depiction of an animal is not protectable because whatever an animal looks like or does was “first expressed in nature” and therefore not a copyrightable idea. (Taken to its extreme, Ansel Adams’ “Moon Over Half Dome” would not be a copyrightable subject because Half Dome is a rock that was first expressed in nature, and same goes for the moon.) It sounds absurd, but it has been a successful defense in several cases in the Ninth Circuit, even when the copying of the original was proven by the plaintiffs. The problem arises from the two step "reductive analysis” employed by the court that essentially removes all elements of expression in the first step (copyrightablity of the subject), keeping the second step (copying of protected elements) out of consideration and away from the trier of fact. I'm taking up that battle in the Ninth Circuit this fall.”
NEA Granted a Reprieve; Arts Advocates Gear Up for the Longer Fight
Posted by Rebecca Blake on May 12, 2017
Arts advocates were appalled when the budget proposed by the Trump transition team called for eliminating the National Endowment for the Arts, along with steep cuts to other cultural and social programs. On April 30th, Congressional leaders came to a bipartisan agreement to fund the government through September. The House Appropriations Committee FY 2017 Omnibus Summary lists a full $150 million each to the NEA and to the National Endowment for the Humanities, an increase of $2 million. In an email to the Los Angeles Times, an NEA spokesperson wrote that the funding increase matched a request made by the agency in February 2016.
While the news is a welcome reprieve, arts advocates are not breathing easy – the administration has proposed defunding the NEA entirely in 2018. Americans for the Arts has orchestrated a comprehensive campaign: they've been conducting an online petition through their Action Center, their Arts Mobilization Center publishes updates on federal funding for the arts, and they’ve conducted a print ad campaign, “The Arts Put America to Work,” which highlights the 4.8 million Americans employed in the arts.
That last statistic that is supported by data. In April, the NEA released the results of a study conducted with the Bureau of Economic Analysis. The study showed that total arts and cultural industries in the United States employ 4,802,813 individuals at a compensation of $355 billion. Of that amount, core arts and cultural industries (“originators of ideas and content associated with the creation of arts and culture”) employ 950,997, at a compensation of $68 billion. The study results are posted online with an interactive map which permits viewers to see the economic contribution of the arts state-by-state.
Below: Clicking onto each state on the interactive map on the NASAA website pulls up data for that state.
The Guild Supports S.1010, “The Register of Copyrights Selection and Accountability Act”
Posted by Advocacy Liaison on May 05, 2017
The Graphic Artists Guild applauds the introduction of “The Register of Copyrights Selection and Accountability Act” into the Senate as S.1010 on May 2nd. In a show of bipartisan support, the bill was introduced by members of the Senate Judiciary Committee: Chair Chuck Grassley (R-IA), Ranking Member Diane Feinstein (D-CA), former chair Orrin Hatch (R-UT), and former Ranking Member Patrick Leahy (D-VT). The Guild supported the House version of the bill, H.R.1695, which passed the House on April 16 by 378-48.
S.1010 seeks to make the the Register of Copyrights a Presidential appointee for a 10-year term, with certain requirements:
• The appointee must be selected from a list of candidates selected by the Speaker of the House, the President pro tempore of the Senate, the majority and minority leaders of the House and the Senate, and the Librarian of Congress.
• The appointee must be a U.S. citizen with professional experience in copyright law.
• The appointee must be capable of identifying and supervising a chief information officer responsible for managing modern information technology systems.
Under current copyright law, the Register is appointed by the Librarian of Congress. The sudden removal of the previous Register of Copyrights, Maria Pallante, last October cast a spotlight on the need for greater autonomy of the Copyright Office. Along with a coalition of visual artist associations, the Guild has advocated for that, including making the Register of Copyrights a Presidential appointee. Doing so is also a vital step towards proceeding with modernization of the Copyright Office, which is vital to the concerns of graphic artists.
Comic Artist Turned Away at US Border for Carrying Work in Progress
Posted by Rebecca Blake on April 24, 2017
On April 20th, Canadian Marvel comic book artist Gisele Lagace posted to her Facebook page that she had been denied entry to the United States when attempting to cross the border to attend Chicago’s C2E2 comic convention. According to her post. she was refused entry by US Customs and Border Patrol because she was planning to complete some commissions while in the US; the unfinished works were in her car. Additionally, she was carrying about $700 worth of comics, which she had intended to sell while at the convention. That put her in violation of US immigration law, which prohibits visitors from working in the US without a proper visa.
Her post generated sympathy among colleagues, and was shared several hundred times. The Hollywood Reporter picked the story, and documented the sympathetic response from fellow comic book creators. They cited Australian comic writer Tom Taylor’s Twitter account, in which he commented that he has pulled out of US conventions since he no longer feels safe or welcome here, and that he knows of many colleagues who feel the same.
Despite the unease generated by the recent increased vigilance of US border patrols, artists have been turned away in the past for bringing work with them to comic cons. CBR reported in 2012 that Canadian artist Craig Wilson was turned away when work he had hoped to sell in Phoenix Comicon’s Artist Alley was discovered by board guards. Marvel writer Charles Soule (who also happens to be an immigration attorney) responded to Legace’s situation by cautioning comic artists to consult with an attorney before coming to the US for trade shows.
Everyone is well-intentioned, but the immigration landscape is changing daily. Things that were cool last year get you turned around now.— Charles Soule (@CharlesSoule) April 21, 2017
Artists intending to exhibit at a trade show or comic con in the US can also check the US Customs and Border Protection’s FAQ sheet for tradeshow attendees.
For Legace, a seasoned pro who has traveled frequently to the US, the ordeal was unexpected: “Was asked if I was the only one doing this as I looked surprised to be refused entry. I said no, many artists from around the world attend these to promote themselves. I don't think they cared.” Her experience was made all the more excruciating by the discovery of two unidentified white pills in her wallet (most likely acetaminophen), which precipitated a body search. She’s decided she’s not reattempting entry into the US until she’s “absolutely certain this won’t happen again.”
Below: The Detroit-Windsor border crossing between the US and Canada.
Photo: public domain.
Copyright Office Modernization: Through an Artist’s Lens
Posted by Guest on April 21, 2017
Guest post by Tom Kennedy, Lara Kisielewska, Akili-Casundria Ramsess, Juliette Wolf-Robin, and David Trust.
Most everyone knows the phrase "a picture is worth a thousand words." It captures the notion that one image can instantly convey complex ideas and world events, changing how we think individually and as societies. For instance, who could forget the picture of an American sailor kissing a woman in Times Square, which expressed the elation, joy and excitement of the nation as World War II came to an end. And the 1989 image of a lone protestor standing before oncoming tanks in Tiananmen Square still resonates deeply today. In both cases, visual artists--who depend on strong copyright protections to make a living--captured those iconic images.
Visual artists include illustrators, graphic designers, artists, photographers, visual journalists, videographers, and others who create and license their works for the news media, magazines, advertising, books and other publications, consumer products, digital platforms, multimedia presentations, and broadcast. Typically, they are one-or-two-person businesses and small family enterprises that not only create, but are responsible for running all facets of a small business.
To help facilitate the marketplace for creative works, visual artists have long called for modernizing the US Copyright Office. That's why we strongly support HR 1695, the Register of Copyrights and Selection and Accountability Act, which would make the Register of Copyrights, who leads the USCO, a presidentially appointed, Senate confirmed position. The bill recently passed out of the House Judiciary Committee by the overwhelming bipartisan vote of 27-1.
The Copyright Office, which resides in the Library of Congress, maintains copyright registration and recordation databases upon which creators, licensees, users and consumers depend, but which are sadly outdated. Indeed, despite repeated calls by former Registers for reform, including releasing the most forward looking IT plan in the Office's history, it has been unable to modernize because it lacks the autonomy to do so. The Office's efforts have been frustrated because it resides in the Library of Congress where it competes with many other Library priorities for resources, technology and staff. This arrangement may have worked in the past, but the creative economy now contributes $1.2 trillion to GDP and supports 5.5 million jobs. The Register must be given the autonomy to modernize the Office to suit the specialized needs of the copyright system. And it is appropriate that the office of the Register be elevated to a stature commensurate with the economic sector to which the duties of the Office are so critical.
The Office also has an important policy mission, statutorily acting as Congress' impartial advisor on copyright law and policy. Historically, the Copyright Office has been an invaluable resource to the Congress, providing expert counsel on issues large and small. This is particularly important for individual creators and small businesses, for without this dedicated "think tank," Congress might not hear the plight of our creative members on critical issues such as how to handle copyright infringement claims too small to justify the expense of a federal law suit. The Copyright Office must have the autonomy necessary to continue its vital advisory role to Congress.
Some critics of the legislation have suggested that elevating the Register is an attempt to "give more power to Hollywood"--something we in the visual arts community find puzzling. Without a doubt, the Copyright Office's technological shortcomings affect visual artists far more than movie studios and record labels. For instance, Variety reported that 563 movies were released in 2014 by the entire movie industry, which is a relatively small number of copyrights to register for an entire year. By contrast, a single photographer can take over 500 photos in one shoot, and may create as many as 50,000 individual photographs per year. Further, unlike large entertainment companies, we don't have the luxury of in-house professionals who can dedicate their time to navigating the complexities of the registration process. As a result, many visual artists forego registration, which then makes defending one's rights in court a virtual impossibility. Put another way, the Copyright Office's problems are a de facto regressive tax--the smaller the creator, the more adversely they are impacted.
Congress should swiftly pass HR 1695, thereby taking an important first step towards fixing these problems. By ensuring the Register has the autonomy necessary to begin implementing operational reforms and continuing to provide impartial advice, Congress will help ensure that visual artists and all creators can continue creating works that contribute to our economy and help shape our society in the digital age.
Tom Kennedy is the Executive Director of the American Society of Media Photographers (ASMP). Lara Kisielewska is the President of the Graphic Artists Guild (GAG). Akili-Casundria Ramsess is the Executive Director of the National Press Photographers Association (NPPA). Juliette Wolf-Robin is the National Executive Director of the American Photographic Artists (APA). And David Trust is the CEO of the Professional Photographers of America (PPA).
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