our battle cry: destroy all artists alleys

[davemerrill]

http://www.sethpolanskylaw.com/2016/06/10/intellectual-property-the-wrath-of-cons/

Just read it. Go ahead, it's not long. Well, OK, here's the salient points.


1.Artists/vendors are selling items that clearly infringe the copyrights of others.
2.Artists/vendors often do not understand how IP rights work, and more troubling, often don’t understand the risk they’ve taken on by selling potentially infringing items at a convention.
3.Artists often rely on selling such work to make ends meet.
4.Convention organizations, with few exceptions, turn a blind eye to their vendors’ sale of infringing material.
5.IP rights holders aren’t enforcing their rights – or perhaps not even paying attention to the issue.
6.Consumers (that is to say con-goers) either don’t understand that what they’re doing is supporting theft, or they don’t care.

===

I regularly hear uneducated arguments, often citing “fair use”, but in 99.9% of the situations I’ve encountered these arguments are utterly inappropriate.

They often go something like this:
•One-of-a-kind, original drawings and paintings of someone else’s IP are okay.
•Since everyone does it, copyright holders must not care.
•If I only sell it at conventions, and not online or in stores, it is okay.
•If I’m not making a profit, it is legal to draw someone else’s characters.


Each and every one of these is false. Let me repeat that. Each and every one of these is false. Any questions?

In any event a claim of fair use is always a question of law and artists/vendors can potentially be dragged into costly litigation over their mistaken belief that there is some sort of legal precedent that allows them to violate someone else’s IP rights.


This actual lawyer type guy details exactly what's been troubling me about conventions and artists alleys and the blind eye conventions turn towards IP theft, the handwaving fans and artists do to try to weasel out of taking responsibility for their actions, and how I feel about table fees from these artists being used to fund the parts of the convention I actually enjoy and am a part of (not great about it, is how I feel). I'm really pleased to see someone with concrete knowledge stepping up to the plate and tackling these issues.

Comments

[tochiro998.livejournal.com]

And yet the people who need to read it won't, most will go by the freaked out privilege people who also won't read it and then dogpile on anyone who DOES read it or at the very least understands it (see also today's political discourse hatefest), some will even cry it's a violation of their First Amendment rights.

Myself, if an artist is doing a one-on-one transaction and drawing sketches for pocket money, I WOULD let that go regardless of the copyright infringement. Posters, pins, tees, hugpillow covers, wall scrolls, dreamcatches, 8-bit renditions of chara done with melted beads, NOOOPE.

Nothing will change. Our entitled society won't allow it to change. It's an emotional issue and logic, reason don't hunt against emotion.

Can't stop SM CDs, can't stop Chinese wallscrolls, can't stop bootleg Saint Seiya toys, I don't expect...oh, wait, maybe there WILL be. Because the AA isn't as much a profit center as the huckster's room.

Which may push some artists to buy a dealer table, which is more money... OH I am such a cynical SOB.

[davemerrill.livejournal.com]

Actually, you can stop all that stuff. All it takes is the will to do so. Ask Otakon.

[mr-sadhead.livejournal.com]

Can I tell you a story? I applied, about fifteen years ago, to get into the graphic design program at the Community College. I figured, bring myself up to speed on techniques that might make it easier for me to do work and get work. I submitted a portfolio of my work to that point, including my published comics. The portfolio reviewer dinged me repeatedly for the less than stellar work in the folio and turned me back, suggesting I try again next semester. Then he pulled out some samples from other portfolios that he thought I should aspire to. The first thing he showed me was a straight up swipe of a big Joker panel from "The Killing Joke", and he was quite effusive about the talent of the young student who had done this work. I told him it was a not very good tracing of a page by a guy named Brian Bolland. The review session ended abruptly at that point. This has nothing to do with your post but I had to get it off my chest.

[tochiro998.livejournal.com]

That's actually relevant. Very relevant. It shows that the reviewer is woefully unqualified to be judging portfolios and being called on that bruised his widdle ego. Which I would posit to extrapolate he'd be perfectly fine with AA abuse as 'creative expression'.

No doubt the douche is a professor now.

[tochiro998.livejournal.com]

Agreed, all it takes is the will. I think Otakon is the only one even trying, and I would bet dollars to donuts every single year there's a dealer that tries to sneak in the SM CDs and gets away with it for a bit before the hammer comes down.

Pretty sure AX does nothing about it.

[davemerrill.livejournal.com]

when I was in illustration class, one assignment was basically "dragon". One guy turned in a swipe of the Roger Dean (?) album cover art for Asia's first album. Most of the class knew what it was swiped from, I don't think our instructor did, there was a little giggling, but nobody called him out on it. I mean, as far as demonstrating painting technique goes, he did a pretty good job, as I recall.

[davemerrill.livejournal.com]

I know what you mean when say "SM CDs" - you're thinking of general bootleg merchandise. But you have to look pretty hard to find any CDs at all in anime con dealers rooms these days, legit or SM or otherwise. I think I've seen more VHS than CDs.

[mr-sadhead.livejournal.com]

It kills me because I wanted to brush up on technical skills and that would have been useful to me. And I got blocked because my technical skills weren't flawless.

[mr-sadhead.livejournal.com]

This swipe wasn't that skillful (colored pencils, not like watercolors or anything)

[tochiro998.livejournal.com]

Well, that sure as all f**k is a Catch-22, huh? "I want to better my skills" "You aren't allowed because your skills are lacking" "but that's what I want to fix" "come back when your skills are better"

Stupid people being stupid. KNOWING that you could be better with some guidance, having that self awareness of your ability, should make you a highly desired student that any instructor worth their salt would gladly teach.

Me, I would be useless. My drawing ability is about on par with flying with the ducks and hummingbirds. I learned that back in the late '70s. :)

(but I aced, ACED the grammar course I took at a local community college. A+. yah, me can say writ goodly. :) )

[damerell.livejournal.com]

1) Yep, no argument there.
2) Maybe? Maybe they skipped ahead to 4) and 5), and expect a blind eye to be turned. I know in my experience the suggestion we're all unaware of what the law says makes about as much sense as those Chick Tracts where people find out for the first time that Jesus supposedly died for their sins.
3) I guess? I don't think the chunk of rhetoric following has much to do with point 3, anyway.
4) Yes.
5) This isn't troublesome at all. The law is an ass when it comes to fanfic and fan art, and the blind eye being turned is a great boon. This is where the hidden assumption in this article comes to the fore; that the law isn't an ass and we'd all be better off with rigid enforcement.

Do I sympathise with professional artists who can't sell their own work? Sure. Is the remedy for that to stop fan artists doing it either? No, because it doesn't actually solve the stated problem!

6) It's not theft. Theft is a legal term with a specific meaning. This isn't just nit-picking, either; theft demands intention to permanently deprive the original owner. Was Superman "stolen" from Siegel and Shuster? Maybe (as in, still not in the legal sense but perhaps the analogy is valid), but I can't "steal" Superman from DC because nothing I do can stop them making Superman stuff from now until eternity.

That it's a problem seems to stem largely from the implicit assumption that the law is not an ass.

[davemerrill.livejournal.com]

well, that's probably a class you are better off not wasting your time with, if the instructor is that clueless.

[davemerrill.livejournal.com]

7) actually, if you profit from something that's not yours, it's like stealing. So much like stealing that it is, in fact, stealing. If you profit from the image of Superman or Usagi Yojimbo or the Teenage Mutant Ninja Turtles or Sailor Moon without license from the copyright holders, you're stealing.

If you're ok with profiting off the work of others, fine. But don't tell me "everybody does it" or "nobody cares" - that may or may not be true, but it doesn't change the fact that you're stealing, on both simple ethical grounds, and on more complex legal grounds.

And yeah, when you take fifteen dollars for that photocopied image of Superman, that's fifteen dollars you have "permanently deprived" from the original copyright holder.

[damerell.livejournal.com]

Theft really is a term with a specific legal meaning, and the author of that piece ought to know it (and indeed, it is slightly hypocritical to berate other people for their supposed ignorance of the law while misusing the term), and copyright and trademark violations - which aren't even typically a criminal offence [1] - ain't it.

Moral equivalence is another matter, but if you really think that, haven't you turned a blind eye to grand larceny at an enormous number of cons [2], in the way you wouldn't if it were theft as legally defined. So _do_ you really think that?

[1] as in, they are a civil matter, not as in, they are absolutely fine in the eyes of the law.

[2] Clarify: artists' alleys not bootlegs in dealer rooms, which AFAIK you do not turn a blind eye to.

[tochiro998.livejournal.com]

But it appears all you're doing is justification.

Working in retail for decades, I've gotten used to the concept of "If I'm not selling it, I've lost money" (which is kinda what we're talking about here in regards to I.P. owners) and my personal belief is "you haven't LOST money, you're just not making MORE money".

That's sane and rational, but that's not how Entertainment Law works. Entertainment Law says if you sell something that infringes on the owner of the I.P. that money SHOULD have been theirs, which, guess what, is called theft.

Doesn't matter that Warner/DC has no interest in mostly nekkid and clothing ripped Batman hug pillows.

I know I sort of momentarily sidetracked the convo by bringing up mass produced commercial bootleg products while the burr in Dave's saddle is the Art Alley 'ren faire craft show' explosion, but it all ties into the same issue, I.P. owners doing something.

Remember J.A.I.L.E.D.? God, when WAS that, like '95? That whole 'justice theater' nonsense that went nowhere and did basically NOTHING (I think a couple of people got merch. seized) came into being because Rumiko Takahashi was visiting SDCC on Shogakukan's dime and people kept handing her bootleg wall scrolls and so on to sign, and she basically said to her handler "WTF, guys?!" (because of course that's all stuff she never sees a dime on) and people, make that PEOPLE were highly embarrassed.

If the whole J.A.I.L.E.D. thing had been serious there would have been arrests and suits at various known bootleg product distributors but THAT would have taken real money and that wasn't going to happen. The organization existed so Viz could tell their Japanese bosses "hey, look, we did something! all good, right?" and that's as far as anybody wanted to push it.

So that's what it would probably take to rid the AA of the license theft craft fair atmosphere, some BIG NAME sponsored by a BIG COMPANY seeing stuff and going "but...I don't get any of that money".

[davemerrill.livejournal.com]

Hey, I'm not the guy you need to be convincing. The actual legal type lawyer guy is the guy you need to convince. If you want to argue with him, feel free. His office is listed right there, I'm sure he'd love to hear how wrong he is.

I do think that many conventions - including conventions I staff - are indeed turning a blind eye to theft. I also think it needs to stop, which is something I've been bringing to the attention of the conventions I'm a part of.

[damerell.livejournal.com]

I agree that's how Entertainment Law works - never said it didn't. But the linked article can't quite decide if it's a factual statement of the legal position (fan artists could get sued, they wouldn't have a leg to stand on, this would be a bad thing especially if one had indemnified the convention and it got sued, that would probably be a bad thing for the convention too) - all of which is very true but largely irrelevant as long as everyone turns a blind eye - or a polemic about right and wrong.

The two don't sit well together, especially when the polemic misuses terms with defined legal meaning - and where the assertion that it is wrong seems mostly glossed over with the fact that it's wrong in the eyes of the law.

I agree it takes someone big to notice; I'm just not sure it would be a useful development.