On The Question of Copyrights
Posted: Fri Jul 09, 2010 10:36 pm
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.
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.