On The Question of Copyrights

Let us know what you think about the site - what we're doing right or wrong, what you'd like to see, and any questions you might have. We'll toss some of our own thoughts and opinions in as well, including notes on the Weekly Updates at the main site.
Forum rules
* Nothing involving children on the receiving end of spankings!
* Be nice.
* Please keep to the forum subject. If you have an idea for a new forum, please send a PM to web-ed.
Post Reply
web-ed
Site Admin
Posts: 3341
Joined: Sun Nov 08, 2009 5:30 pm
Location: Chicago, Illinois USA
Contact:

On The Question of Copyrights

Post by web-ed »

Richard Windsor recently ran a post entitled “Copyrights – A Tricky Problem”. He was mainly concerned with photographs, which on most spanking blogs and websites along with videos are the principal form of pictorial matter featured. If someone claims ownership of a photo Richard has posted on his blog, he gives them the proper attribution (which is generally enough to satisfy the owner) or removes the photo. The issues involved are relatively straightforward where the photograph is the original creation of a spanking website. Other media are also subject to copyright, however, and here the issues are much less clear. The purpose of this mini-manifesto is to explain what my views are on copyright issues generally, and more specifically how I apply them here at Chicago Spanking Review.

To begin with, I have the greatest respect for intellectual property rights. It is no more just to steal the products of a man’s mind than it would be to steal the grain he grows in his field. I wouldn’t want our society to be like that of a communist country where no rights exist, and intellectual property is routinely plundered. On the other hand, such rights cannot be absolute lest they bring all intellectual intercourse to a complete halt, something that is often not sufficiently appreciated by creators. You can see the problems that would arise if a writer could prevent a critic from reviewing his novel, even if the critic uses excerpts from the novel as part of his review (and of course the same is true when reviewing media such as painting, drama, and film). Parody and satire are also a kind of commentary, and cannot be subject to the usual copyright restrictions – in a free society, ideas must be debated and argued back and forth, whether the original creator of those ideas likes it or not, if the society is to remain free. Intellectual property rights must also be limited in time – the innovator benefits society with his creations, but cannot be allowed to claim an unlimited stranglehold on future generations. We can’t be expected to ask permission when we perform the Wedding March at a wedding, or to pay royalties to the descendents of whoever invented the wheel every time we roll an automobile off the assembly line.

When I started Chicago Spanking Review, I gave considerable thought to how I was going to approach the issue of rights, since I knew I would be using a lot of material that I did not own. There was also the issue of material that I did own, such as my instructive or critical articles. In the latter case, I decided I would allow anyone to use my material provided that a) they didn’t alter it so as to distort my ideas and opinions, and b) they did not seek to use it for monetary gain, since I wanted to give it away for free. Similarly, I decided I could reprint a photo, drawing, or article that met any of the following criteria:

1. It was in the public domain, or reasonably believed to be so.
2. I had the permission of the known or putative copyright owner.
3. It was impossible to determine who, if anyone, held the rights to the work. (This often occurs in practice because things get reposted so many times, and is primarily the question Richard Windsor was dealing with. Of course, if subsequently the rights owner makes known his claim, it should be honored.
4. The rights holder had, by his action or inaction, given up his rights. For instance, if a photo or drawing were published on a public, non-pay website, with no reservation of rights, the owner must be presumed to know that others will feel free to use the image, and can hardly expect there to be any remaining monetary value in displaying it.
5. There was no monetary value remaining with the image, so that by posting it I would be neither taking in money that didn’t belong to me, nor denying the owner the opportunity of making money from it. Now, a copyright may be infringed even where the infringement is not done for the purpose of monetary gain, but most of the time, money is the most important question, and it always seemed to me that stealing money that should have gone to someone else was the worst kind of infringement. In practice, this standard could easily lead to mistakes because it depends on my assessment of the property’s market value.
6. I could reasonably claim “fair use”, a legal term which refers to the right to use copyrighted material without the permission of, or compensation to, the owner. Fair use is extremely complicated, and we’ll see some examples of its difficulties below.

Let me show how I applied these criteria with some actual examples, bypassing case #2 because it is obvious, and case #3 since Richard already covered it.

When I posted the Mona Lisa in the Picture Gallery, or the brothel spanking from ancient Pompeii, these would be considered in the public domain (Case #1).

Certain scans, including some of Paula Meadows’ work, from British publications like Janus and Februs I used sparingly and in the belief they had no monetary value (Case #5). Of course, that could have been because so many people had ignored the rights by scanning and posting these images before I got to them, thereby depleting any monetary value they might have had. Not fair, if so, but also not exactly my responsibility. I reasoned the same way when it came to the old Humorama spanking cartoons since Humorama had been defunct for a long time by then (2004) and I really couldn’t imagine anyone placing much value in 50-year-old cartoons which seemed rather quaint by modern standards. Now since that time, several Humorama collections have appeared (of Ward, Wenzel, and DeCarlo), so my estimation may have been wrong. It may also be that the estates of these artists (not of Paula, who is fortunately still very much with us) actually retained some of the rights, but that didn’t seem very likely to me knowing Martin Goodman’s business practices – he kept all the rights to everything he ever published, and as I said, Humorama was long gone by then. In all these cases, I honestly believed there either were no rights left or at least that they had no monetary value.

Now, one thing that sets CSR apart from other spanking sites is the number of comic-related spanking drawings I have. The simplest case occurs when I reprint a spanking from an actual comic book, e.g. Batman spanking Marcia Monroe in The Brave and the Bold. Here I am confident that I can claim fair use, for I’m only excerpting a small part of the whole; not reducing the demand for the original work or lessening its value (I may in fact have increased its value); I’m transforming the work by adding my commentary and criticism, using it at least partly for educational purposes (historical and sociological); and of course I’m not taking any money for doing this. These factors are all taken into account by a court when determining whether a particular use is in fact fair use.

Next we come to what is often termed fan art (fan fiction presents the same problems), and here we get into murky waters indeed fairly quickly. This is artwork produced by an artist featuring copyrighted characters belonging to someone else, usually without the copyright holder’s permission. For example, many artists produce various kinds of superhero drawings and sell them at conventions, on e-bay or other websites, to patrons who commission them, etc. These can be simple, G-rated renderings or more sexually-oriented stuff (of course, you wouldn’t expect to see the sexually-oriented material at a convention).

The companies (DC, Marvel, and various smaller ones) know that this is taking place, but they don’t make any effort to stop it or to insist on royalty payments or licensing fees for the use of their characters. Why not? Well, it could be that the companies are so big-hearted that they’re willing to give up some profit to benefit these hard-working artists. Or it could be that they don’t think the courts would recognize their claims on fan art because of fair use (a subject to which we’ll return later), but it’s more likely a straightforward business calculation: it’s in their interest to keep fan involvement with these characters at a fever pitch, thus ensuring maximum sales from the books and licensing revenue from big sources (movies, merchandise, and so on). Losing a few dollars of revenue on each piece of fan art could mean gaining tens of thousands in revenue later on.

With the companies’ failure to assert any rights to the original art, it seems clear that by default the original art would remain the property of the artist, who normally tries to sell it. But what about the reproduction rights to the work – making printed copies for sale, posting scans on the internet, or using a reproduction of the original art to create a new work of art or for criticism or for educational purposes? Let’s take as an example a drawing of Wonder Woman getting spanked created by Artist X. DC owns Wonder Woman, but they (presumably) forfeited their rights in the original when they took no steps to prevent its creation or sale. Do they nonetheless still have reproduction rights? Artist X sold the original art to Mr. Buyer. If Artist X and not DC somehow held the reproduction rights, did they pass on to Buyer when he purchased the art?

There are four possibilities:

1. Only DC could have had any rights to begin with since their property was the basis for the original art, but having failed to assert them, all reproduction rights were forfeited and no one possesses them. This is equivalent to saying that the work is now in the public domain, just like the Mona Lisa.
2. DC retained all reproduction rights even though they didn’t try to assert any rights in the original art.
3. Artist X, as creator of the original art, retained the reproduction rights even after selling the art to Buyer (presumably under the theory fair use).
4. Buyer purchased the reproduction rights when he bought the original art. This could be a fiercely-contested matter since most of the agreements between Artist and Buyer are probably verbal.

And that brings us back to Chicago Spanking Review. If I find a scan of this Wonder Woman spanking out on the web, I may know that it was created by Artist X, yet I have no reason to assume reproduction rights have been retained by anyone. Presumably, Buyer scanned the original art himself (since he was the one in possession of it), and by posting it in an open forum, gave up any rights he might have had. Now if DC objects (which fortunately hasn’t happened yet), whom do they sue? Artist X, Buyer, CSR, or all three of us? If Artist X asserts copyright (even though, as I say again, he does not own Wonder Woman), does he sue his own Buyer? He’s going to have a mighty tough time prevailing in court unless there was a clear contract specifying that he retained the reproduction rights when he sold the art. Or does Artist X sue CSR (let’s hope not)? Here, his case would be badly weakened by his own reliance on fair use. He would have to claim to the court (with a straight face) that fair use of DC’s property allowed him to create the original art and profit by the sale of it, yet that same fair use doesn’t protect CSR from using the work for different purposes that benefit the general public with no profit going to CSR!

You see I wasn’t kidding when I said the issues became murky very quickly! What do you think CSR should do? Were we right to post these kinds of works in the first place? Should we remove them if requested to do so by Artist X? Remember that the artist’s claims on a Wonder Woman spanking are far less clear than a website’s claim on a spanking photo that they produced, and that if established as precedent, removal could result in the widespread disappearance of fan art from the web.

My own view is that while not everything can be free on the internet, not everything can be for sale, either, and the attempt to assert this much control over intellectual give and take on the web is exactly the kind of stranglehold on our cultural life that fair use of copyrighted material was designed to prevent. As a practical matter, there’s no way that anyone except Bill Gates could afford to pay for all the material that’s currently available for free. It wouldn’t be a case of copyright owners getting more money – the works would simply disappear. If everything is copyrighted, and no one can make any use of it, how would that benefit our society?

Please share your thoughts – we’d be interested in hearing them.
Last edited by web-ed on Thu Jun 30, 2011 12:28 pm, edited 2 times in total.
Reason: change from sticky to normal - I think everyone's had the chance to see this by now.
-- Web-Ed
jimc
Posts: 371
Joined: Sun Nov 22, 2009 12:10 am

Re: On The Question of Copyrights

Post by jimc »

i have always had trouble with this one. I believe that if i bought something i have a right to sell it, share it, etc. As i have already paid the holder of the copyright. But on the other hand i do have to reconize that the copyright exists and respect its origns. i think that there has to some limit on a time that a owner can ask that something be removed or credited to them as well. like i think anything that has been posted for longer than a month should not be involved in any issues as it will have been scanned and reposted at least a dozen times in that time frame and it is beyond reason that anyone now can claim ownership of it. comic books do have the disclaimer on the front. sporting events and concerts also say that the event is their property and any image is copyrighted and copyright lawyers are very good at their profession. so in way every discussion of some copyrighted material is unlawful, but without that discussion free speech and exchange of ideas would also stop. my feeling is that an image just needs to have a copyright mentioned or some disclaimer copyright is unknown at time of posting or something like that. I write and do want to have people know i wrote it, but i also am somewhat thrilled that someone thinks that my work is good enough to share with others. I thank every spanking artist, writer, producer, blogger etc. for sharing their time and talent with us as there had to be a demand for it for it to be created in the first place. a hard question to answer for i really do see both sides of the discussion and lean more towards freedom of speech and while i wish i could pay the copyright holder i also do not have the funds to do so.
jim
Wolfie138
Posts: 68
Joined: Wed Jan 06, 2010 7:17 am

Re: On The Question of Copyrights

Post by Wolfie138 »

I've touched on some of this, because i was a huge fan of certain comic artists and i hated seeing them getting ripped off.
when it comes to the big companies, they seem lenient towards fan art. whether this is out of benevolence, apathy i don't know. i've heard arguments that some look on it as free advertising. generally speaking, it seems that "con sketches" etc are tolerated, but some guy on ebay selling dozens of, say, Catwoman pics as regular income wouldn't be. there's a vague line between someone making one-off icome, and making an industry out of other people's copyright items.
one other prob, in ebay, is that, frankly, they don't give a fk. all that stuff about safe community and trade in confidence, is garbage. they only care that they're getting fees from the seller. i've reported some scumbag literally dozens of times : he takes Purgatori images and other characters and adds (sometimes) a half-assed Photoshop background, and passes them off as "rare" "hard to find" posters etc - every time i report, i got a stock email reply and nothing else. so much for policing pirated goods, misrepresenting descriptions, etc etc...
the other aspect, is that generally the big guys don't seem to take issue unless their characters are being abused, but this again is a very grey area. some get overly protective is a character is topless, some if they're nude, some if it's full-on hardcore action. trouble is, i think there's an argument that that kind of imagery falls under the parody umbrella.
personally, i think as long as your heart and intentions are in the right place, it shouldn't be a prob, and if someone asks you to remove stuff they know you will w/out fuss. i've asked a site to take down some of my pics, and i've let another site post some. in the former, it was because i'd already put a link to my stuff on the forum so i saw no need to have dozens of my pics put up there too ~ and, more to the point ~ i felt people were missing out because generally there's stories to go w/ the pics and add to the imagery. In the later, the guy was polite enough to mail me and say he'd done this and say he was willing to remove them if i said so. a bit respect goes a long way so i said it was no bother as long as it didn't become a habit.
i've seen things i think should be stamped on : sites post member-area photosets and they turn up on forums days later, eg. this is totally wrong, but sadly once things are out on the internet they're free to get taken and reposted like a virus, making it real hard for the owners to do anything really constructive. however, i think this site is doing it the right way : i think your approach may actually tempt people to hunt out comics etc and thereby generate interest and income rather than taking it away. especially for some of the indie artists who specialise in spanking art, i think distribution of their pics on sites like this is likely to get them more commissions than anything else.
Ripley

Re: On The Question of Copyrights

Post by Ripley »

Without going into much detail here, I am a huge supporter or protecting artist's work. The real problem I have with those that violate legal Copyright is when anyone attempts to falsely claim ownership, declare fair usage (when it's not), and most of all, to commercially profit from any artwork that does not intellectually belong to them. It's one thing to post an artist's artwork and give them full credit, but it's another when some slime sets up a Paysite or AVS protected site full of downloaded artworks that do not belong to them. That is absolutely wrong and such sites need to be wiped clean of the internet.

Let there be no confusion, if anyone buys a print or an original piece of art, they do not have any copyright claim to that image, unless the artist or actual copyright holder expressly grants them limited or full rights to it in writing.

Support your favorite artists by helping them support themselves.

Ripley
hugob00m

Re: On The Question of Copyrights

Post by hugob00m »

Interesting topic! I hadn't really considered the copyright issue with regards to the spanking comic issue, especially since most of the cartoons I like the most were done so long ago that the copyrights have probably long expired. I've done a few cartoons that I never bothered to copyright, because I just wanted to share them with anyone interested. It has been a bit annoying that some paysites have been using my stuff for their teasers!
Post Reply