A Call for Leadership: The copyright issue
(attempted to reformat using inserted < BR >
from 
WinCustomize Forums
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I am new to this forum, although not at all new to issues of images and copyright. From what I read in the rules of the site it seems that images from film and television are not supposed to be used without permission. < BR >
Copyright could be an important issue, especially if this site (and others like it) becomes more popular with all the Vista stuff on people's computers. < BR >
Far from agreement, however, different parties here seem to hold very clear--and opposing--ideas of just whether something used in a windows customization is or is not protected by copyright.< BR >
There does seem to be a smoke wafting o'er the "individually-drawn fields-of-grass" Vista customization community each time a popular image ends up posted here. Lots of smoke, and yet very little light. A quick look shows that such discussions often jump immediately from step 1 "we all mature people who hold different opinions in this forum" to somewhere about step 24 "you are a (insert favorite here) and a loser".
< BR >
Few would say that copyright law is easy to understand. I guess if it were easy there would be a bunch of copyright lawyers looking for work. From the few copyright attorneys I have run into keeping them off the street is probably a good public service.
< BR >
It is true that the published literature does speak in complicated terms. Both the good news and the bad news about copyright law is that we have a fairly large body of administrative rulings and court cases constituting copyright law.
< BR >
*Good news because we have a large collection of cases to look at to search for a scenario similar to ours.
< BR >
*Bad news because we have little but a collection of cases, and it is hard work trying to figure out why case A was tried one way and case B another even though both cases look a lot like our situation.
< BR >
NOT ALLOWED
< BR >
There isn't much that most people can know for sure about copyrights, though I have picked up a few gems here and there:
< BR >
(a) Cartoon derivations of published cartoons are *not* allowed in not-for-profit newsletters and other public displays,
< BR >
(b) protected images (which is just about anything distributed so that someone other than the user sees it) may not be used in business presentations, even if there is no money paid to the creator of the derivative or to the presenter who uses it, and
< BR >
(c) not-for-profit organizations don't receive any special treatment when it comes to copyright. If a use is not allowed in a for-profit setting, it is not allowed in a similar not-for-profit setting.
< BR >
(d) the media in which unlawfully derived material is distributed is also responsible for the unlawful use, if there is one. Simply stating "we are not responsible" does not remove responsibility. If a medium (newspaper, cable TV, video, book, magazine, web site etc.) makes a genuine and responsible effort to avoid the unlawful publishing of copyrighted material they may be able to demonstrate they are not to be held partially responsible. This "due diligence" must be evident to any one who could potentially post anything that would infringe on a copyright.
< BR >
e) it doesn't matter whether anyone *makes* money on the unauthorized image, it is sufficient that the copyrighted material's market potential is reduced by improper use of an image. In other words, just because I don't make any money for putting Mickey Mouse drinking a beer on a few T-shirts, Walt Disney studios (these guys have no sense of humor. . .at all) will aggressively hunt down and prosecute anyone they find using Mickey Mouse in such a way.
< BR >
FINANCIAL HARM< BR >
The attorneys representing owners of the copyrighted material further argue that < BR >
(i) even though no money was earned by the person appropriating the image, < BR >
(ii) and even though the image was clearly not official (i.e., their is no attempt to gain popularity by stealing the image), and < BR >
(iii) even if Walt Disney Studios or their (even future) licensees have no plans to use the image themselves in the market in which the derivation of the protected image was displayed, Walt Disney Studios can be harmed by its use by someone else. < BR >
This harm comes in exposure. The studios have shown that they have a specific time table showing which images can be released in which markets, before the image becomes so often seen it loses its commercial value to a licensee (e.g., McDonalds' toys). < BR >
To support this claim they have proved that their release of their own movies is done on a schedule so that the re-release will have the most effective impact for their licensees (read: $$$). From there it is relatively straightforward to show that should they need to delay a re-release because an image has been widely "pirated" they will suffer real economic harm. That is usually enough to sustain their "loss of revenue" claim. < BR >
They claim that their income from licensing Mickey Mouse suffers when the images--including the black market uses--become too prevalent on the street. It is therefore incredibly, maybe even "impossibly" difficult to prove that an unauthorized use caused economic losses. It is not an accident that the burden of proof ends up on the shoulders of the party with the derivative, rather than the original work. < BR >
FAIR USE < BR >
There are "Fair use" protections, to be sure. Most fair use claims fall under a couple of categories. The first is "critical use". By this they don't mean use somehow critical of the original use, but rather use that is for the purpose of commenting on the original use. Mostly this covers reviewers and academicians (though not necessarily the students in college classrooms, go figure!). < BR >
The second broad "fair use" category includes the "incidental" or "personal" uses. This is designed to keep the nasty lawyers away from little 3-year-old Judy (or her 34-year-old aunt) because she drew a surreal depiction of Mickey Mouse with two additional heads where his ears should be. The law covers ordinary people talking about (or drawing, for personal use) otherwise restricted images as long as their use is "personal". < BR >
Parodies of work are protected, although the intent must be clearly to make a statement about the original work, not to make another statement. In short, Monty Python can't be successfully sued for using names or themes drawn from "knights and damsels" pieces. No reasonable person watches "Holy Grail" for fresh new intellectual statements. (and copyright on L'Morte expired several hundred years ago. . .) < BR >
Several other parts of the Fair Use defense have grown and increased, or decreased as the decades went by. Anyone who has even seen the law books about Fair Use in copyright law knows just how senseless it is to draw up a "3 points covering all of Fair use in copyright law". < BR >
Fair use generally means that only an insignificant/incidental portion of the entire work will be used. While there are some rules of thumb, you should be careful to rest too much of your weight on them. The portion constituting a fair use of a multi-volume "History of the World" will be much different from that of a song lyric.< BR >
Many in the higher education community (especially colleges and universities in the United States) used to believe that "Fair Use" covered just about anything done in the classroom. A few strategically placed raids on professors' filing cabinets made it quite clear that a professor could not expect Fair Use to cover the mass distribution of articles and books used in classes. (There was a bright flash and thousands of small copy shops went out of business). < BR >
Likewise, a few mega-churches had their offices upended over photocopying songs for use in services. Many thought "surely Fair Use will protect churches!" Many were wrong. Now most churches subscribe to a service that collects fees and distributes them back to the owners of the copyrighted works used in services.< BR >
The copyright owners' attorneys have not gotten everything they wished for, and there are some issues still to be resolved. But generally speaking, it would be a mistake to assume that somehow our community is immune from copyright concerns.< BR >
This is why I'm not sure we fit in comfortably under Fair Use. < BR >
A quick read of the agreements shows that Stardock quite clearly disavows any responsibility for (and thus any liability for) any unlawful use of copyrighted material on their various sites. < BR >
Should Walt Disney's army of cold and calculating attorneys come slithering (kinda gives you the creeps, huh?) around the Stardock sites I am sure the powers that be will whip out their rules which govern the use of potentially protected images in an impression of the famous Casablanca scene with Stardock in the role of the Inspector saying "use of protected images on our site? I'm shocked! Just shocked!" < BR >
It would be easier to ensure our use was covered under fair use if our products weren't available to the public. Especially in that it sort of ruins the whole idea of providing exposure of creative works to the community if our products aren't available to the community. My best guess (and I'm not an attorney) is that if image owners dropped by the site to check things out, they would be very interested in the thousands of downloads listed on each wallpaper, icon or screenshot, and the "millions of users" touted by the company information pages.
< BR >
What we say about ourselves is important. If we say lots of people visit our forums and download our works it will be tough to change that to "we're small and completely inconsequential--there is no way anyone could think we are doing anything but putting this disputed material in a few hands. It wouldn't be hard to gather some rather clear evidence about what we told our potential advertisers they were buying with their banner ads. I would guess it is not "there's about 48 people who look at one another's work--that's all. . ."
< BR >
I would think it would be hard to convince a judge somewhere (a) that we, the Stardock users community, didn't know our work with protected images was being used outside of our immediate close community and that (b) having their protected images on the computer screens of said thousands of users is fundamentally different from using said surreal picture in a PSA or advertisement on a local cable television station.
< BR >
But the attorneys at/for Stardock really should make some sort of statement about it since the rules seem to say one thing (no, no, no, don't do it! If you do do it, it's on your head! we wash our hands of the entire affair!) and the current practice says another (way cool! another Warner Brothers screen for our community's collection! Have you done anything with that funny Martian guy who kept shooting the duck?). It is not just what we say. The courts are usually smart enough when it comes to distinguishing between "the disclaimer" and the real policy, vis-a-vis the message we frequently tell each other.
< BR >
FAN ART EXCLUSION?
< BR >
Specifically I have not run into "fan art" as a protected use in Copyright law. My study has certainly not been exhaustive, being restricted to a handful of specific issues/domains. < BR >
Has there been a recent ruling that allows otherwise protected images to be used within a "fan" site? I haven't seen anything so far but it would not be at all unlikely that it had been done years ago--seems no one at the Department of Justice thinks it important to consult me before they make administrative rulings! < BR >
I am familiar with some sweeps through some big Cons identifying pirated goods (including t-shirts, posters and especially re-imaged posters. It strikes me as stretch to be able to produce a derivative image of protected work and claim the use is covered under fair use because the author is a fan. This would make it easy to protect any derivative work. All those attorneys would be out of business!< BR >
< BR >
Here is part of what Wikipedia says about fan art:< BR >
===============================< BR >
< BR >
"Generally, the right to reproduce and display pieces of artwork is controlled by the author or artist. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful."
("Fan art." Wikipedia, The Free Encyclopedia. 22 Jan 2007, 14:55 UTC. Wikimedia Foundation, Inc. 23 Jan 2007
Copyright could be an important issue, especially if this site (and others like it) becomes more popular with all the Vista stuff on people's computers. < BR >
Far from agreement, however, different parties here seem to hold very clear--and opposing--ideas of just whether something used in a windows customization is or is not protected by copyright.< BR >
There does seem to be a smoke wafting o'er the "individually-drawn fields-of-grass" Vista customization community each time a popular image ends up posted here. Lots of smoke, and yet very little light. A quick look shows that such discussions often jump immediately from step 1 "we all mature people who hold different opinions in this forum" to somewhere about step 24 "you are a (insert favorite here) and a loser".
< BR >
Few would say that copyright law is easy to understand. I guess if it were easy there would be a bunch of copyright lawyers looking for work. From the few copyright attorneys I have run into keeping them off the street is probably a good public service.
< BR >
It is true that the published literature does speak in complicated terms. Both the good news and the bad news about copyright law is that we have a fairly large body of administrative rulings and court cases constituting copyright law.
< BR >
*Good news because we have a large collection of cases to look at to search for a scenario similar to ours.
< BR >
*Bad news because we have little but a collection of cases, and it is hard work trying to figure out why case A was tried one way and case B another even though both cases look a lot like our situation.
< BR >
NOT ALLOWED
< BR >
There isn't much that most people can know for sure about copyrights, though I have picked up a few gems here and there:
< BR >
(a) Cartoon derivations of published cartoons are *not* allowed in not-for-profit newsletters and other public displays,
< BR >
(b) protected images (which is just about anything distributed so that someone other than the user sees it) may not be used in business presentations, even if there is no money paid to the creator of the derivative or to the presenter who uses it, and
< BR >
(c) not-for-profit organizations don't receive any special treatment when it comes to copyright. If a use is not allowed in a for-profit setting, it is not allowed in a similar not-for-profit setting.
< BR >
(d) the media in which unlawfully derived material is distributed is also responsible for the unlawful use, if there is one. Simply stating "we are not responsible" does not remove responsibility. If a medium (newspaper, cable TV, video, book, magazine, web site etc.) makes a genuine and responsible effort to avoid the unlawful publishing of copyrighted material they may be able to demonstrate they are not to be held partially responsible. This "due diligence" must be evident to any one who could potentially post anything that would infringe on a copyright.
< BR >
e) it doesn't matter whether anyone *makes* money on the unauthorized image, it is sufficient that the copyrighted material's market potential is reduced by improper use of an image. In other words, just because I don't make any money for putting Mickey Mouse drinking a beer on a few T-shirts, Walt Disney studios (these guys have no sense of humor. . .at all) will aggressively hunt down and prosecute anyone they find using Mickey Mouse in such a way.
< BR >
FINANCIAL HARM< BR >
The attorneys representing owners of the copyrighted material further argue that < BR >
(i) even though no money was earned by the person appropriating the image, < BR >
(ii) and even though the image was clearly not official (i.e., their is no attempt to gain popularity by stealing the image), and < BR >
(iii) even if Walt Disney Studios or their (even future) licensees have no plans to use the image themselves in the market in which the derivation of the protected image was displayed, Walt Disney Studios can be harmed by its use by someone else. < BR >
This harm comes in exposure. The studios have shown that they have a specific time table showing which images can be released in which markets, before the image becomes so often seen it loses its commercial value to a licensee (e.g., McDonalds' toys). < BR >
To support this claim they have proved that their release of their own movies is done on a schedule so that the re-release will have the most effective impact for their licensees (read: $$$). From there it is relatively straightforward to show that should they need to delay a re-release because an image has been widely "pirated" they will suffer real economic harm. That is usually enough to sustain their "loss of revenue" claim. < BR >
They claim that their income from licensing Mickey Mouse suffers when the images--including the black market uses--become too prevalent on the street. It is therefore incredibly, maybe even "impossibly" difficult to prove that an unauthorized use caused economic losses. It is not an accident that the burden of proof ends up on the shoulders of the party with the derivative, rather than the original work. < BR >
FAIR USE < BR >
There are "Fair use" protections, to be sure. Most fair use claims fall under a couple of categories. The first is "critical use". By this they don't mean use somehow critical of the original use, but rather use that is for the purpose of commenting on the original use. Mostly this covers reviewers and academicians (though not necessarily the students in college classrooms, go figure!). < BR >
The second broad "fair use" category includes the "incidental" or "personal" uses. This is designed to keep the nasty lawyers away from little 3-year-old Judy (or her 34-year-old aunt) because she drew a surreal depiction of Mickey Mouse with two additional heads where his ears should be. The law covers ordinary people talking about (or drawing, for personal use) otherwise restricted images as long as their use is "personal". < BR >
Parodies of work are protected, although the intent must be clearly to make a statement about the original work, not to make another statement. In short, Monty Python can't be successfully sued for using names or themes drawn from "knights and damsels" pieces. No reasonable person watches "Holy Grail" for fresh new intellectual statements. (and copyright on L'Morte expired several hundred years ago. . .) < BR >
Several other parts of the Fair Use defense have grown and increased, or decreased as the decades went by. Anyone who has even seen the law books about Fair Use in copyright law knows just how senseless it is to draw up a "3 points covering all of Fair use in copyright law". < BR >
Fair use generally means that only an insignificant/incidental portion of the entire work will be used. While there are some rules of thumb, you should be careful to rest too much of your weight on them. The portion constituting a fair use of a multi-volume "History of the World" will be much different from that of a song lyric.< BR >
Many in the higher education community (especially colleges and universities in the United States) used to believe that "Fair Use" covered just about anything done in the classroom. A few strategically placed raids on professors' filing cabinets made it quite clear that a professor could not expect Fair Use to cover the mass distribution of articles and books used in classes. (There was a bright flash and thousands of small copy shops went out of business). < BR >
Likewise, a few mega-churches had their offices upended over photocopying songs for use in services. Many thought "surely Fair Use will protect churches!" Many were wrong. Now most churches subscribe to a service that collects fees and distributes them back to the owners of the copyrighted works used in services.< BR >
The copyright owners' attorneys have not gotten everything they wished for, and there are some issues still to be resolved. But generally speaking, it would be a mistake to assume that somehow our community is immune from copyright concerns.< BR >
This is why I'm not sure we fit in comfortably under Fair Use. < BR >
A quick read of the agreements shows that Stardock quite clearly disavows any responsibility for (and thus any liability for) any unlawful use of copyrighted material on their various sites. < BR >
Should Walt Disney's army of cold and calculating attorneys come slithering (kinda gives you the creeps, huh?) around the Stardock sites I am sure the powers that be will whip out their rules which govern the use of potentially protected images in an impression of the famous Casablanca scene with Stardock in the role of the Inspector saying "use of protected images on our site? I'm shocked! Just shocked!" < BR >
It would be easier to ensure our use was covered under fair use if our products weren't available to the public. Especially in that it sort of ruins the whole idea of providing exposure of creative works to the community if our products aren't available to the community. My best guess (and I'm not an attorney) is that if image owners dropped by the site to check things out, they would be very interested in the thousands of downloads listed on each wallpaper, icon or screenshot, and the "millions of users" touted by the company information pages.
< BR >
What we say about ourselves is important. If we say lots of people visit our forums and download our works it will be tough to change that to "we're small and completely inconsequential--there is no way anyone could think we are doing anything but putting this disputed material in a few hands. It wouldn't be hard to gather some rather clear evidence about what we told our potential advertisers they were buying with their banner ads. I would guess it is not "there's about 48 people who look at one another's work--that's all. . ."
< BR >
I would think it would be hard to convince a judge somewhere (a) that we, the Stardock users community, didn't know our work with protected images was being used outside of our immediate close community and that (b) having their protected images on the computer screens of said thousands of users is fundamentally different from using said surreal picture in a PSA or advertisement on a local cable television station.
< BR >
But the attorneys at/for Stardock really should make some sort of statement about it since the rules seem to say one thing (no, no, no, don't do it! If you do do it, it's on your head! we wash our hands of the entire affair!) and the current practice says another (way cool! another Warner Brothers screen for our community's collection! Have you done anything with that funny Martian guy who kept shooting the duck?). It is not just what we say. The courts are usually smart enough when it comes to distinguishing between "the disclaimer" and the real policy, vis-a-vis the message we frequently tell each other.
< BR >
FAN ART EXCLUSION?
< BR >
Specifically I have not run into "fan art" as a protected use in Copyright law. My study has certainly not been exhaustive, being restricted to a handful of specific issues/domains. < BR >
Has there been a recent ruling that allows otherwise protected images to be used within a "fan" site? I haven't seen anything so far but it would not be at all unlikely that it had been done years ago--seems no one at the Department of Justice thinks it important to consult me before they make administrative rulings! < BR >
I am familiar with some sweeps through some big Cons identifying pirated goods (including t-shirts, posters and especially re-imaged posters. It strikes me as stretch to be able to produce a derivative image of protected work and claim the use is covered under fair use because the author is a fan. This would make it easy to protect any derivative work. All those attorneys would be out of business!< BR >
< BR >
Here is part of what Wikipedia says about fan art:< BR >
===============================< BR >
< BR >
"Generally, the right to reproduce and display pieces of artwork is controlled by the author or artist. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful."
("Fan art." Wikipedia, The Free Encyclopedia. 22 Jan 2007, 14:55 UTC. Wikimedia Foundation, Inc. 23 Jan 2007
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