Tapestries

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Re: Tapestries

Post by GODofwar » Thu Jul 27, 2017 10:54 am

kitenerd wrote:
Wed Jul 26, 2017 8:57 pm
i don't want to get into a huge debate on this, but that simple formula breaks down almost immediately

Well I think its an interesting topic...and with the advent of the internet, a hot one. Used to be a small town guy could use something in violation of IP law, and nothing happened. The owner of he IP never heard about it, and the reality was any 'damages' were limited to a tiny town - so nobody cared. Now everything is worldwide. COpying the wrong tapestry illegally could get a gamer in hot water. Most people may not realize it,
but owners of IP are not 'trolls' for enforcing their rights. Under IP law, failure to enforce against a violation you are aware of could be cause to lose your IP rights! (The reality is that such failure is just one factor, and probably a patter of failure to enforce would be needed - but most IP owners aren't willing to bet on that)


[/color][/i][/b]Let's see if my 'simple formula' breaks down...
[/color][/i][/b]

you create a billboard, i photograph the billboard, i sell the photograph - did i violate your copyright?

consider this dustbowl era image from the FSA project (by John Vachon):


johnvachon.jpg

In this case you can read the name of the billboard artist on the billboard! Clearly this is a copy of an authored work, but the juxtaposition of the itinerant worker alters the meaning of the work.

Under existing law, an argument for fair use exists because of the addition of the migrant worker - as you point out.
Under my rule - you can't use my work without permission - it fails
BUT...I did say that academic and parody were reasonable exceptions. Is 'transformation' ?
I argue no here. Why? Because the purpose of the original message is turned agaisnt itself by the new image. Why should you be able to appropriate my work to argue against me? Make your own darn argument.
The fact is you don't own the billboard image. And presumably yo
kitenerd wrote:
Wed Jul 26, 2017 8:57 pm


Well I think its an interesting topic...and with the advent of the internet, a hot one. Used to be a small town guy could use something in violation of IP law, and nothing happened. The owner of he IP never heard about it, and the reality was any 'damages' were limited to a tiny town - so nobody cared. Now everything is worldwide. COpying the wrong tapestry illegally could get a gamer in hot water. Most people may not realize it,
but owners of IP are not 'trolls' for enforcing their rights. Under IP law, failure to enforce against a violation you are aware of could be cause to lose your IP rights! (The reality is that such failure is just one factor, and probably a patter of failure to enforce would be needed - but most IP owners aren't willing to bet on that)

Let's see if my 'simple formula' breaks down...


you create a billboard, i photograph the billboard, i sell the photograph - did i violate your copyright?

consider this dustbowl era image from the FSA project (by John Vachon):

johnvachon.jpg

In this case you can read the name of the billboard artist on the billboard! Clearly this is a copy of an authored work, but the juxtaposition of the itinerant worker alters the meaning of the work.

I can't parse this example b/c I don't know who

(the irony of the fact that i am reproducing this work without permission is not lost on me)

Virtually everything is derivative of something (look at recent music lawsuits) - sadly, reasonable people (especially those with financial interests in the outcome) will disagree on what constitutes inspiration and what constitutes theft - that is where the lawyers come in

There is only so much that can be done to codify boundries on situations so infinitely variable - in the end it comes down to subjective decisions on content and intent and i leave that to those wiser than me

(the irony of the fact that i am reproducing this work without permission is not lost on me)

Virtually everything is derivative of something (look at recent music lawsuits) - sadly, reasonable people (especially those with financial interests in the outcome) will disagree on what constitutes inspiration and what constitutes theft - that is where the lawyers come in

There is only so much that can be done to codify boundries on situations so infinitely variable - in the end it comes down to subjective decisions on content and intent and i leave that to those wiser than me


This is why we have courts - and case law. because there every case is fact dependent some more than others. But I would like to see a change from the current base assumption to one that assumes my IP is worth at least as much as a piece of dirt I buy (real estate) and deserves just as much protection. [/color][/i][/b]

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Re: Tapestries

Post by kitenerd » Wed Jul 26, 2017 8:57 pm

i don't want to get into a huge debate on this, but that simple formula breaks down almost immediately

you create a billboard, i photograph the billboard, i sell the photograph - did i violate your copyright?

consider this dustbowl era image from the FSA project (by John Vachon):
johnvachon.jpg
johnvachon.jpg (69.56 KiB) Viewed 2314 times
In this case you can read the name of the billboard artist on the billboard! Clearly this is a copy of an authored work, but the juxtaposition of the itinerant worker alters the meaning of the work.

(the irony of the fact that i am reproducing this work without permission is not lost on me)

Virtually everything is derivative of something (look at recent music lawsuits) - sadly, reasonable people (especially those with financial interests in the outcome) will disagree on what constitutes inspiration and what constitutes theft - that is where the lawyers come in

There is only so much that can be done to codify boundries on situations so infinitely variable - in the end it comes down to subjective decisions on content and intent and i leave that to those wiser than me
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Re: Tapestries

Post by GODofwar » Wed Jul 26, 2017 12:01 pm

kitenerd wrote:
Tue Jul 25, 2017 3:18 pm
As dismissive and glib as my earlier comments were, i have followed this discussion with great interest

Astolat - thanks for the education!

I have a fine arts degree, so i am VERY interested in who gets credit and has their work protected legally, but as my degree is in photography, i am also very aware of the need to be able to reproduce the work of others (whether simply a photograph with a billboard in it, or a deliberately manipulated recognizable piece of art or popular culture) without the constant fear of harassment. There is a balance between protecting the output of one persons creativity and stifling another persons.
Kitenerd, I suggest that having a systematic,principled bases for doing this 'balancing' is necessary.

Where I come from is simple: If I create a thing (all else being equal) I own it. "Own" means I can do what I want with it, unless using it directly harms someone else (I may own the baseball but but I don't own the patch of your skull where I parked it).

I see no reason why my creativity should be able to appropriated for someone else's use. I don't have a problem with academic use, parody and a few others - at least not a major problem.

Someone else actually using my creativity to make money is a no no.

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Re: Tapestries

Post by astolat » Tue Jul 25, 2017 5:39 pm

Very welcome, @kitenerd, I'm glad my giant wall of text was at least interesting. ;)

To get us back on topic, I thought I would mention that I have discovered that Spoonflower has a sample pack with small swatches of all their fabrics which you can get for $3 if you want to see what all the fabric texture options are:

Go here and scroll down to "sample pack" and you can add it to your cart:
https://www.spoonflower.com/spoonflower_fabrics

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Re: Tapestries

Post by jchunick » Tue Jul 25, 2017 3:55 pm

kitenerd wrote:
Tue Jul 25, 2017 3:18 pm
As dismissive and glib as my earlier comments were, i have followed this discussion with great interest

.... There is a balance between protecting the output of one persons creativity and stifling another persons.
That's much better put, and I wholly agree.
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Re: Tapestries

Post by kitenerd » Tue Jul 25, 2017 3:18 pm

As dismissive and glib as my earlier comments were, i have followed this discussion with great interest

Astolat - thanks for the education!

I have a fine arts degree, so i am VERY interested in who gets credit and has their work protected legally, but as my degree is in photography, i am also very aware of the need to be able to reproduce the work of others (whether simply a photograph with a billboard in it, or a deliberately manipulated recognizable piece of art or popular culture) without the constant fear of harassment. There is a balance between protecting the output of one persons creativity and stifling another persons.
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Re: Tapestries

Post by jchunick » Mon Jul 24, 2017 12:41 pm

astolat wrote:
Mon Jul 24, 2017 12:30 pm
GODofwar wrote:
Sun Jul 23, 2017 4:47 pm
One comment - don't confuse 'fair use' with commercial use.

Some good case law says that if you deprive the copyright owner of a fee (by producing something you could have bought from him, using his CC material) you have crossed into commercial use.

Fair use generally refers only to use for academic study, public comment (ie reviews) and similar things. It does not include reproducing something for your own use to avoid buying a copy from the owner of the CC. Generally.

All that said, I don't do IP law, and its very specialized and complex.
I feel like I'm dragging us very far off-topic, sorry; I should probably explain that while I am not a lawyer, I have actually been a fair use activist for more than a decade, & I am annoyingly passionate on the subject. :P The thing is, it matters so much, especially in amazing artistic communities like this where people may well want to make transformative art with copyrighted material, and where misconceptions can scare people away from exercising their fair use rights to share and even profit off their work, which in turn actually erodes fair use rights.

So please forgive me for going on and on about this, but while you are totally right that it is complex, and fair use is necessarily ambiguous, I want to point out that commercial use CAN absolutely be fair use -- you just have to otherwise have a really good case....
Thanks for the post and your viewpoint. And since it's my thread I will say that there are no apologies necessary. :)

But I think I'm probably going to start a thread about copyright just so there's a proper home for it.
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Re: Tapestries

Post by astolat » Mon Jul 24, 2017 12:30 pm

GODofwar wrote:
Sun Jul 23, 2017 4:47 pm
One comment - don't confuse 'fair use' with commercial use.

Some good case law says that if you deprive the copyright owner of a fee (by producing something you could have bought from him, using his CC material) you have crossed into commercial use.

Fair use generally refers only to use for academic study, public comment (ie reviews) and similar things. It does not include reproducing something for your own use to avoid buying a copy from the owner of the CC. Generally.

All that said, I don't do IP law, and its very specialized and complex.
I feel like I'm dragging us very far off-topic, sorry; I should probably explain that while I am not a lawyer, I have actually been a fair use activist for more than a decade, & I am annoyingly passionate on the subject. :P The thing is, it matters so much, especially in amazing artistic communities like this where people may well want to make transformative art with copyrighted material, and where misconceptions can scare people away from exercising their fair use rights to share and even profit off their work, which in turn actually erodes fair use rights.

So please forgive me for going on and on about this, but while you are totally right that it is complex, and fair use is necessarily ambiguous, I want to point out that commercial use CAN absolutely be fair use -- you just have to otherwise have a really good case. The Wind Done Gone (the unauthorized Gone With The Wind rewrite/sequel) is a prime example of a work that was commercial, that in fact did something the copyright holder actually DID themselves (ie, publishing derivative works), and won in court as far as the case went before settlement. That case obviously had some really strong transformative arguments going for it -- TWDG was a rewrite from the perspective of Scarlett O'Hara's slave -- and the court felt that it overall passed the four-factor test for fair use. (The whole decision is really interesting reading if you are into this kind of thing: https://scholar.google.com/scholar_case ... 2307527660)

There's just been a fanfiction textbook commercially published by the UMichigan Press that includes a dozen highly transformative fanfiction stories based on Harry Potter, James Bond, etc with associated critical commentary, all published without permission, and both UMich and the Stanford Fair Use team are standing behind it and prepared to defend it in court. (Disclaimer: I have a story in this collection myself and so will not link it, but you can google The Fanfiction Reader if you are interested, it's on Amazon etc.) But AFAIK, all the lawyers involved don't believe anyone is going to sue.

Because the far bigger problem we have these days is that a lot of this doesn't GET to court. There are massive chilling effects instead where many copyright holders are successfully policing use of their material not because the LAW is on their side, but because the LAWYERS are on their side. Honestly I think that, far more than the actual law, is driving the concerns that you and Josh are raising. There is so much being DELIBERATELY put out there to distort the public understanding of what copyright holders actually own.

In fact I belatedly realized I myself made a mistake earlier in this thread, d'oh: it's NOT that you can make fair use of photos of public domain tapestries, those photos are themselves IN the public domain. (See the Bridgeman case.)

The thing is that the constitutional purpose of copyright is a limited exemption to free speech that is meant to encourage the creation of new art. Copyright is not meant to help creators make money, it is meant to serve the PUBLIC good. The *temporary* protection of the copyright in your work is just the carrot that creators are offered to publish their work in public, instead of keeping it secret and charging fees for controlled access by a few, which ultimately leads to work being lost. The work is meant to end up in the public domain.

That is unintuitive to many people these days because many commercial creators are working hard to expand copyright to keep ownership of big brands. You can pretty much thank Mickey Mouse for our current unreasonable copyright term, which is seriously damaging the public domain and destroying the legacy of many other creators who are dead and whose work is being lost -- see https://priceonomics.com/how-mickey-mou ... ic-domain/.

I have personally known dozens of people making transformative art who have gotten DMCA takedowns or block notices or scary cease & desist letters, many of them automated, where the other side disappears at the first hint of the artist having a lawyer on their side. And this is not even talking about copyright trolls -- I'm talking about major content producers. They don't actually look at the use of their material and think about whether it's fair use -- they don't care. They've got a legal department they have to pay anyway (or a bunch of unpaid interns!) and they've pushed for automated systems, so it's easy for them to send threatening notices that the average individual artist will freak out over, and they don't want you using their stuff even if you DO almost certainly have the right. But these producers also don't want the cost of a real legal case or to give a court any excuse to say explicitly that artists do have a right. They'd rather challenge 1000 artists, destroy 998 pieces of art, and just quietly back down from the 2 who happen to know lawyers after making their lives irritating or difficult at as little cost to themselves as possible. (EG: https://vidders.github.io/articles/vidding/legal.html)

And even many institutions theoretically trying to serve the public good like museums are looking everywhere for sources of income. So many of them want to charge hefty license fees for photographs of their public-domain artwork and control access to those photos. Happily, the culture around this is changing -- if you look at the Metropolitan Museum's website, you'll notice that they are now explicitly labeling as public domain their own downloadable images of their public domain work and stating it can be freely downloaded for commercial/noncommercial use. (Including the Unicorn tapestries!)

tldr:

I could sell my tapestries no problem because the underlying tapestries are public domain and therefore accurate reproductions of them are as well.

You can copy my idea and sell your own public domain mini tapestries no problem, because the *idea* of taking tapestries and making them small to print them out for miniature use is not copyrightable.

If you took a photo of a tapestry that is still under copyright and modified it substantially and started selling it, that might still be fair use, but this is a deliberately grey area where the individual court would have enormous leeway in deciding the case based on looking at your modifications and deciding if they pass the four-factor test for fair use, and one factor that might be against you would be that you are making a commercial use.

And if you are sharing transformative work and you get a C&D or takedown notice, I urge reaching out to the Stanford Fair Use team or the Organization for Transformative Works http://www.transformativeworks.org/ before you give in!

And I swear I will now shut up about this. :P

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Re: Tapestries

Post by GODofwar » Sun Jul 23, 2017 4:47 pm

One comment - don't confuse 'fair use' with commercial use.

Some good case law says that if you deprive the copyright owner of a fee (by producing something you could have bought from him, using his CC material) you have crossed into commercial use.

Fair use generally refers only to use for academic study, public comment (ie reviews) and similar things. It does not include reproducing something for your own use to avoid buying a copy from the owner of the CC. Generally.

All that said, I don't do IP law, and its very specialized and complex.


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Re: Tapestries

Post by jchunick » Sun Jul 23, 2017 3:35 pm

astolat wrote:
Sun Jul 23, 2017 3:04 pm
jchunick wrote:
Sun Jul 23, 2017 1:22 pm
To be clear, the photos of any tapestries would actually be copyrighted, so while not many sites like Etsy would make a big deal about anyone selling the images in a printable sheet (they rely on the DMCA process which involves the copyright holder submitting a take town request), it would actually be infringing on the photographer's copyright and thus they'd have the legal right to ask for it to be removed. A derivative work like a photograph, even one of a public domain image, would itself be eligible for copyright protection by the photographer.

Reference:
https://bucks.blogs.nytimes.com/2010/09 ... h-artwork/
Fair use rights are particularly important to me so I have to jump on this a bit, forgive me!

1) That article is specifically about the issues of taking photographs of work that is currently under copyright. All of these tapestries are in the public domain.
For a second you had me double-guessing if I had posted the wrong link (had several tabs open of webpages talking about photos and copyright) :-) . This excerpt from the linked article would seem to show that the article does, in fact, address the issue of photos of public domain artwork:
"If the painting is in the public domain, you can take a picture of it, you can reproduce it."
astolat wrote:
Sun Jul 23, 2017 3:04 pm
2) A photograph taken today is automatically copyright of the photographer, HOWEVER, there are many cases where you can still make fair use, even commercial fair use, of copyrighted photos. In particular, a photograph that simply faithfully reproduces a 2D public domain work is almost always going to be fair use. (See http://libguides.mit.edu/usingimages for more info.)
I am aware of this, and agree 100%. I will also add that in my own research I've done in the past in regards to this I've not been able to find any other examples or any case law that addresses tapestries since it's not clear if they could be considered 2D or an object (3D), in which case photos of tapestries would not be exempt from copyright. I was researching specifically for the pieces I've made and posted in this very thread.

I will have to read the link later. Thanks for that.
astolat wrote:
Sun Jul 23, 2017 3:04 pm
3) Other factors that affect fair use include the amount of transformation and the effect on the marketplace. For instance, I have not literally uploaded the photographs I found. Instead I shrank them down considerably, trimmed them, and combined them with others, and for a very different creative purpose that was not served by the original. All of these represent "good facts" as a lawyer might say. (IANAL) There is a recent case in fact where someone used thumbnail images of Grateful Dead album covers in a book to illustrate the progression of their design -- the album covers and the original photographs all still under copyright, the book was a commercial work, it was nevertheless found fair use.
This particular case I wasn't aware of. :-) Thanks for giving something new to read up on!
astolat wrote:
Sun Jul 23, 2017 3:04 pm
4) But most importantly, I specifically sourced all the photographs I used using Google's image search feature that allows you to specify photographs that are specifically labeled as available for reuse with modification. So they are in fact all just fine. :)

Long story short, I would be completely comfortable selling this image commercially, and I am VERY legal risk averse. The only reason I wouldn't is because I don't want the headache of dealing with taxes on $0.50 of income. :P
Nice! Dude, every paragraph I read, I'm liking you more and more. :-) It's pretty much exactly what I would have and have done in the past. I wish more people would.
Last edited by jchunick on Sun Jul 23, 2017 5:15 pm, edited 1 time in total.
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