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Let's Talk About Infringement on the Internet (Again) - Walking on the Edge
I don't really have a plan...
foresthouse
foresthouse
Let's Talk About Infringement on the Internet (Again)
The internet is a weird, wild place. One of the glorious things about it is the ease and immediacy with which we can communicate, share, create, sell, add and delete online content, and more.

This is also one of the most problematic things about it, when it comes to intellectual property law (And here's a discussion of some of the reasons why it's so problematic from the last time a friend had work infringed upon via the Internet). Today, yet again, a friend of mine had copyrighted work infringed upon via the Internet, and in this instance, not only was there infringement, but it was infringement for profit, and without acknowledgement. That's pretty much like stabbing a creator in the heart and then twisting the knife.

Here, I'm talking about the amazingly talented comic book and pulp artist Francesco Francavilla, who called out Teefury.com today for infringing on a work he created in 2006. The image is of H.P. Lovecraft and Lovecraft's creation Cthulu, and was based on an old photo of Lovecraft. Francavilla sells the image on t-shirts and other items himself.

Teefury.com's image strongly resembles Francavilla's original art, in ways that go beyond a possible shared photo reference, and that would hinder an argument that Teefury's work was sufficiently transformative (i.e. created a new work) and thus defensible under fair use (which is, as I constantly remind people when I post about copyright, only a defense, not a right). As the linked ComicsAlliance article states, and as I can also see plainly, there are several points of commonality that I believe would lead to a finding for Francavilla if such a case were to go to court; the most telling being the distinctive design of the left (or Lovecraft's right) eye, which Francavilla originated. It's clear that the Teefury "artist" MUST have seen Francavilla's work, since such a detail is extremely original and not the sort of design element anyone drawing Lovecraft would immediately include.

But the problem here is not just the infringement; it is also in the nature of the way the Internet functions, and the way the Teefury.com website is set up, which could appear to limit the benefit for an artist of pursuing the infringement by the most common method of recourse, a cease & desist letter. Because Teefury.com only sells each tee-shirt for one day, by the time a traditional cease & desist-type letter demanding the art be removed was to be sent out and responded to (assuming a response), the tee-shirt would already have been taken down anyway as part of the course of ordinary business at Teefury; thus allowing the infringer to "get away with" the infringement for a day, while depriving the original artist of at the very least the satisfaction of knowing that they had successfully caused the infringing work to be removed by the infringer. It's a frustrating position for an artist to be in, to say the least; and it makes it easier for the website to get away with being a repeat offender, since an artist doing a cost/benefit analysis might assume the cost of taking action would outweigh the minor benefit of removal a few hours early, if at all.

What makes it more frustrating is the attitude of the infringer in this case (who, incidentally, makes a bald-faced claim to being the "artist" of the Lovecraft piece). This guy, who is actually one of the employees of Teefury (the "art director," as opposed to being a member of the public who submitted a work) has clearly expressed his blatant misunderstanding of U.S. copyright law and his disregard for the rights of artists, in a post entitled "STFU Comparison Police! Advice to Artists. His idiocy about the way copyright and fair use works would be laughable if it wasn't actually causing harm to artists.

But cause harm it does; not only in the infringement itself, but in the possible lost profits, and in the propagation of an attitude of irreverence towards copyrights and ownership amongst internet know-it-alls who think they're in the right when they are not, and encourage others to follow their lead.* (Though I'd love to see their reactions were someone to treat their works the same way and profit from them; I daresay there'd be some general about-facing and a quick hue and cry would be raised if the tables were turned).

That's why I would encourage artists to follow up on infringement anytime they possibly can; and, more importantly in cases such as this, to keep in mind that asking for an infringing work to be removed is not the only recourse an artist might have; in the instances where an infringer is making a profit, always remember that a copyright owner can demand an accounting of any profits, and a remittance of any profits derived from the work.

I also encourage people like the infringer over at Teefury to read up on U.S. copyright law, in hopes that they will realize they are, in fact, breaking the law, and it might just come back to haunt them.

*ETA: And, as J. Robert Deans of Twitter points out, there is also the harm of a day of lost work and income due to this issue distracting the artist from his current project.

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Trixie feels: annoyed annoyed

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Comments
particle_person From: particle_person Date: September 27th, 2011 03:30 am (UTC) (current file)
Hey, I think you're missing the key link to Francesco Francavilla's callout! This line just repeats the Francesco link in the previous line instead of going to his entry about it (which I can't seem to find):
"who called out Teefury.com today for infringing on a work he created in 2006"
foresthouse From: foresthouse Date: September 27th, 2011 03:34 am (UTC) (current file)
Ooops. Thanks! Fixed now. :)
particle_person From: particle_person Date: September 27th, 2011 03:45 am (UTC) (current file)
Hm. Looking at the two images...they're very similar, but they aren't the same at all. Maybe it would be infringing in the legal sense, but I'm not feeling the moral outrage on this one. It looks more like someone didn't quite like Francesco's version but thought the basic idea was worth doing a variation on. Like, I could imagine wanting to own both of those variants.
foresthouse From: foresthouse Date: September 27th, 2011 04:03 am (UTC) (current file)
It's true they aren't the same, i.e. they do not = each other. But in the legal sense, they do not need to be for infringement to occur; and the similarities here, to my eye as an attorney at least, are strong enough to hold up the argument that there has been infringement.
particle_person From: particle_person Date: September 27th, 2011 04:06 am (UTC) (current file)
I'm sure, I just can't bring myself to feel all RAHHH ARTIST about it. Your lawyerly skills are unquestioned. ;-)
foresthouse From: foresthouse Date: September 27th, 2011 04:28 am (UTC) (current file)
Fair enough. I probably get more angry about infringement than the average person. :)
particle_person From: particle_person Date: September 27th, 2011 04:34 am (UTC) (current file)
I feel like he should have acknowledged Francesco, though, and maybe paid him a percentage. This was the wrong way to go about doing something like this. But I also think the transformed version should be allowed to exist and not just at the whim of the original artist.
bktheirregular From: bktheirregular Date: September 27th, 2011 01:54 pm (UTC) (current file)
Except there doesn't seem to be enough transformation to pass muster. Now, if instead of Cthulhu behind Lovecraft in the second image, it was a Muppet (Animal, perhaps?), that would be a truly transformative work and probably protected. The fundamental elements of Francesco's artwork - Lovecraft, book, Cthulhu - recur in the shirt design, and while there are subtle differences in the shirt art, it's about like making a freehand copy of the Lion King poster and selling it for profit and expecting Disney to sit there and take it.

Now, if there were a fundamentally different element to that redone Lion King poster - if, say, it were Sweetums or the San Diego Chicken holding up Simba - you might be able to get away with the transformative-work argument. Or, back to the original artwork issue, if the shirt design had Animal behind Lovecraft instead of Cthulhu.
scifantasy From: scifantasy Date: September 27th, 2011 01:26 pm (UTC) (current file)
I have recently opined that arguing copyright law on the internet (especially with laymen, but I'm not sure it's better if two lawyers mix it up) is one of the classic blunders, along with "never get involved in a land war in Asia" and "never go in against a Sicilian when death is on the line." And besides, I'm at work, and don't have internet in my apartment yet (Verizon is coming tomorrow to hook everything up--yay FiOS!), so let's just put a pin in this and come back later, eh? *grin*
foresthouse From: foresthouse Date: October 9th, 2011 02:57 am (UTC) (current file)
Hah! Well, I know it's one of those things that can turn crazy on the internet; but then, can't everything?
scifantasy From: scifantasy Date: October 9th, 2011 03:00 am (UTC) (current file)
This moreso than most.
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