I hope you enjoyed my first installment on Copyright Confusion and Fair Use, and the saga that has been unfolding as I attempt to make my artwork available on custom bags, mouse pads and other fun print-on-demand products sold by Zazzle.com. Thanks for coming back!
Today I’ll be continuing the story with lots of information about your rights as an artist. We’ll also talk about copyright and discuss what websites such as Zazzle can and can’t do with regard to your content. Yes, we’re going to toss around some legal stuff, but legal stuff is oh-so-much-more-fun when it revolves around pro golfers, prima donna rock stars, and raunch novelty rap acts, wouldn’t you agree?
So read on, and at the end of this article I’ll have pointers for how you can join in my crusade to support FAIR USE through a new blog, a Facebook page, and — yes! — through self-censored, “copyright friendly” versions of my Wind-up Dreams & Vinyl Nightmares photos on everything from t-shirts to tote bags.
Oh yeah, disclaimer! I’m not a lawyer, neither professionally or in any amateur capacity. Still, I hope you find the information informative, enlightening, and entertaining.
Fair Use — when copyrights are not exclusive
What bothered me about Zazzle’s claim is that the appearance of an Elvis matchbook in my photo is protected by Fair Use, defined in the Copyright Act of 1976 as an exception to copyright law allowing the use of copyrighted material in transformative ways. It’s what allowed Duchamp to put a mustache on the Mona Lisa and Warhol to silk screen photographs of celebrities. Fair use has many tentacles in the art world, some valid (Barbie in a blender!), others not no much (the US Postal Service taking a photo of a sculpture and placing it on a stamp).
Oster Dive — Tom Forsythe, 1997
The Fair Use exception amounts to only 175 words in the law, but—oh!—how those words have been tested and applied to a wide variety of copyright disputes! I don’t mean for this post to be an in-depth debate on what constitutes fair use, so I’ll just focus on a few noted decisions from the courts to illustrate why my photos (and countless other works of art) satisfy the most prevalent arguments for Fair Use.
Campbell v. Acuff-Rose Music, Inc.
Ugh! Legal stuff. ::: yawn ::: Boring!
No, wait, this is cool! In this landmark case the rap group 2 Live Crew was sued by the estate of Roy Orbison over a raunchy parody of Orbison’s song, “Oh, Pretty Woman.” The case went all the way to the Supreme Court with 2 Live Crew insisting that their version of the song was protected by Fair Use. The Court ruled in favor of the band and, in their summary judgement, had much to say about the transformative nature of Fair Use beyond the 175 words that define the law.
The issue, in the opinion of the Supreme Court, was whether the infringing work “merely supersedes” the original or, instead, “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”
Getting back to the Elvis matchbooks…
Given the Supreme Court’s opinion, had my art focused on only the matchbook, uploading to Zazzle the face of Elvis to be placed on my own set of commemorative plates, my use would clearly not be protected by Fair Use. I’d just be copying (i.e. “merely superseding”) the original, and I’d be in violation of the copyright held by Elvis Presley Enterprises. But that’s not what I did in my photo.
In Backstage Pass, the image of Elvis is merely one element within a complex conceptual narrative. In other words, quoting from the Stanford University Copyright and Fair Use Website in offering their interpretation of the Supreme Court’s ruling, “…the material has been used to help create something new.” There. Fair use.
Back to Zazzle
In the days following the rejection of products designed using Backstage Pass, I received dozens of additional rejection emails covering a total of 10 of my original photos—all judged by Zazzle’s content review team as having violated the copyrights of others.
The characters found to be in violation?
- The Beatles
- Kewpies (yes, kewpies!)
I defy any website, court, law student, or scholar to determine that the placement of a pink kewpie head on the body of a plastic bride, with Leonardo Da Vinci and Grover Cleveland looking on, is not a valid example of fair use.
Kewpies play a particular and recurring role in my work, to the extent that individual kewpies (red, green, pink or yellow) add very specific symbolism and character to a given photograph. Likewise, the “Beatle” figures I use in many photos (actually, manufactured in Asia during the mid 1960’s and sold as “The Swingers Music Set”) are not intended to be a literal recasting of John, Paul, George, and Ringo. Like the kewpies, the presence of these blue-suited figures is symbolic, contributing to the conceptual arc of a given photo through their facial expressions and placement within a given composition.
As before, the product designs I’d submitted were completely removed from my Zazzle account and I was left with no discourse but to write to Zazzle’s content review team for clarification. Over the course of several emails I presented a case for the consideration of Fair Use, citing copyright legislation, cornerstone papers on the transformative aspect of determining fair use, and pointing to case law that supports the rights of artists to use copyrighted material in the creation of new work. Unfortunately, in their brief replies, Zazzle ignored the legal arguments, falling back on their “acceptable content guides” and making statements such as:
Unfortunately, celebrity names and/or likeness (sic) may not be used for commercial resale on Zazzle.com without permission from the celebrity, their legal representative or their estate.
The issue is not with you creating the art of Elvis, the issue is Zazzle selling the artwork images. Zazzle has been contacted by Elvis Presley Enterprises and they have submitted a DMCA notice. In accordance to following the notice, Zazzle cannot carry any images of Elvis Presley.
Oh really? Unfortunately, that’s not what the law says, and Zazzle may, in fact, be suppressing the rights of artists who wish to post and sell products created under the protection of Fair Use. Or, perhaps, they’re simply making a business decision to err on the side of caution and choose to ignore Fair Use as a valid form of artistic expression (note how the issue is deflected in the second response above). I can’t say, as recent emails asking such questions have gone unanswered; as have requests for a copy of the takedown notice Zazzle claims to have received from Elvis Presley Enterprises in reaction to the posting of products containing my Backstage Pass photo.
In any case, let’s take a look at their claim that “celebrity names and/or likeness may not be used for commercial resale on Zazzle.com without permission….”
Hey! What about Elvis’ right to his own face!
It makes sense that a celebrity or public figure would have the right to control how their image is used and marketed. In fact, they do! Under the Lanham Act; a broad piece of legislation that protects trademarks and establishes the “right of publicity,” the use of an individual’s name or likeness is protected from being used in a manner that would imply some unwanted affiliation. In other words, in a world without the Lanham act businesses would be free to Photoshop anyone they liked— Lady Gaga! Peyton Manning! Oprah! —into their advertisements without consequence.
Taken alone, the Lanham Act would seem to support Zazzle’s claim that images of celebrities can’t be used without permission. Ah, but the law is complicated, and the “right of publicity” is not incontrovertible. In fact, it is superseded by… you guessed it, Fair Use!
Let’s take another look at some case law (and I promise it won’t be dry, boring, or filled with Latin terms).
ETW Corporation v. Jireh Publishing, Inc.
Sounds like two big businesses butting heads, doesn’t it? Well, in this case ETW Corporation is the exclusive licensing agent for golfing great Tiger Woods, who sued artist Rick Rush over a painting Rush had created following Woods’ victory in the 1997 Masters tournament.
Attorneys for Tiger Woods argued that Rush did not have the right to use the image of their client in his 1998 painting, The Masters of Augusta (left), claiming Woods’ “right of publicity” under the Lanham Act.
Bzzzzt! Wrong answer.
The judges in the case ruled that the right of publicity is limited by the principles of Fair Use, and—where Rush may have lost the case if his painting was a straightforward portrait of Tiger Woods—the work was transformative in the sense that the image of Woods had been incorporated into a much more complex composition that included other Masters victors and elements of design that put Woods likeness in historical context.
Victory, Fair Use!
So, given the precedence of the decision above, to what degree can Zazzle claim that designs incorporating a celebrity likeness (like Elvis on a matchbook cover) are unacceptable, without also considering the protections offered by Fair Use?
Is Elvis just a bully?
To read Zazzle’s response to my email inquiries, one might assume that their corporate hands were tied, locked in a legal full nelson by the ghost of Elvis Presley, and bound by the stone tablet orders of the DMCA to “not carry any images of Elvis!” Convenient though that belief may be, the law around Fair Use and the Digital Millennium Copyright Act (DMCA) counters such absolute restrictions. In fact, copyright holders must consider Fair Use before instructing a website to remove material from their site; there’s really no such thing as a blanket “take down all things Elvis” order.
I’m going to sneak in one last legal case, because it reinforces my argument and—yet again—is mildly entertaining. This one comes from YouTube and it’s known officially as Lenz v. Universal Music, a case where the plaintiff saw a 29 second video of her toddler jumping around to “Let’s Go Crazy” by Prince removed from the video website. Lenz countered that the use of the song (distorted and in the background) was Fair Use. Though YouTube eventually reinstated the video, Lenz took Universal to court on the basis that they had incorrectly interpreted the DMCA by not considering Fair Use in issuing their takedown notice. Universal countered the counter by releasing a statement that their intent was to rid the internet of all user generated Prince-related content, simply as a matter of moral principle. This was a particularly bad idea and became an issue in the suit, as Lenz argued that Universal was abusing the DMCA by issuing blanket takedown notices rather than considering alleged infringements on a case-by-case basis. Lenz won her case, and the court ruled that copyright holders must consider Fair Use before requesting that a website remove material uploaded by their users.
The DMCA actually protects websites such as Zazzle from liability when files posted to their servers are found to infringe on copyrighted material. True! It’s “safe harbor” legislation that takes legal responsibility off the shoulders of the middle man (in this case, Zazzle) and moves most of the liability and burden of enforcement to the uploader and copyright holder—provided that the middle man follow a few very simple procedures:
- Notify users when their material has been down.
We took down your file because
we’ve been told it infringes on someone else’s copyright.
- Provide users with an opportunity to challenge the removal of materials.
If you think we made a mistake,
here’s how to contact us with your side of the story
- The user can then send in a counter-notice stating why they believe their material does not infringe on another copyright.
My image is protected by Fair Use under the Copyright Act of 1976.
- At this point, the website must promptly notify the copyright holder that their copyright is being challenged.
Hey Elvis! One of our users is challenging your claim
that his image violates your copyright.
Here’s what he has to say.
- The copyright holder then has 14 days to file suit against the user who posted the disputed material.
Sue! Sue! Sue! Or…
If the copyright holder chooses not to file suit (perhaps agreeing that the use is fair, or simply not wanting to take the matter to court), the website is required to restore the materials that had been removed from their site.
That doesn’t seem so hard, does it? In fact, it’s exactly what other sites do (YouTube, for example, which provides a convenient online dispute form) to fairly manage disagreements between copyright claimants and the users who upload files.
So, no, Elvis is not a bully. I simply question whether he (or The Beatles, or all those adorable kewpies) is being included in the conversion.
Tap, tap, tap… Hello? Is this thing on?
Let’s take a look at how—when it came to Elvis, kewpies, and The Beatles—Zazzle implemented the copyright conflict process outlined by the Digital Millennium Copyright Act:
- Notification Check!
- Challenge Check!
- Counter Check!
- Promptly… notify… the copyright… Oh, never mind.
Who knows? At step three I made my claim for Fair Use, and rather than see the process continue to some conclusion that would involve my dispute being provided to Elvis Presley Enterprises, I was told by a representative of Zazzle that there was nothing that they could do; hiding, effectively, behind a very limited interpretation of the Digital Millennium Copyright Act. This is not the way the DMCA is supposed to work and it is certainly not fair to artists and designers who have legitimate claims to publish and profit from the art they have created.
Furthermore, for the two dozen or so product designs that were taken down, Zazzle has followed the first three steps of the dispute process in only one case. Though I have responded to every notification with an email requesting additional information, Zazzle has failed to respond, except (on three occasions) where they simply passed the buck and identified the copyright holders making claims against the art I had uploaded. I’d like to assert my claim of Fair Use for each of the deleted product designs, but this is difficult to do when emails go unanswered.
As things stand today, a couple of weeks following the initial flurry of product rejections, none of my disputed content has been restored and Zazzle’s content review team has been mum on prior claims of Fair Use. The good news, though, is that no additional products have been rejected, which is a bit maddening, as many of these designs are based on the same images, uploaded the same day, but applied to a different class of product. So, where one image was rejected as a mousepad, it has yet to be flagged for copyright infringement as an iPhone case or a tote bag. Baffling.
Though Zazzle has stonewalled in replying to my requests for more information, my resolve will not be hampered. I plan on issuing formal counter-notices on the grounds of Fair Use for each prior rejection. Tedious, yes, as often the same image was rejected in the design of multiple products. Hopefully, with Fair Use on my side and by working through the process defined by the DMCA, I’ll convince Zazzle’s content management team to follow through (as they are legally required) and notify the copyright holders of the challenges I am within my rights to raise.
In the meantime…
As stated near the beginning of this article, I like Zazzle. I think they make good products and I’d like to see my art featured on a wide range of their products. I yearn for a big, chubby-cheeked kewpie surrounded by buddhas and bathing beauties, cheerfully gazing from the back of my iPhone, but Zazzle tells me that my art infringes on the intellectual property that lives, apparently, in the DNA of a kewpie. And the Beatles. And Elvis. Until otherwise resolved, those figures as persona non grata on a Zazzle product.
And so, with the store I want to open currently in copyright limbo, I’ve decided to open an alternate store filled with “copyright friendly products” meant to bring attention to the case for Fair Use in fine art.
The Beatles? Banished!
Kewpies? Vaporized pixel by pixel in the merciless purgatory of a JPEG’s alpha channel.
To that end I sharpened my digital editing tools and created censored versions of each of the 10 photos Zazzle had flagged as unacceptable for product designs. Below is the censored version of Backstage pass in the ninth circle of Hell.
Backstage pass in the ninth circle of Hell — censored version
As the Clash once sang in the song 1977:
No Elvis, Beatles, or the Rolling Stones!
The Elvis matchbooks have been whited away; the Beatle bobble heads, removed. (No Rolling Stones in the photo, but you will note a ticket stub from the Clash concert on the right side). In their place, the symbol for copyright, which as far as I know is fair… to use.
The new shop—I Support Fair Use—is now open! Come on by to see the censored versions of my art and maybe buy a mug so you too can support Fair Use while you sip your morning coffee.
And while you’re sipping that copyright friendly cup of morning joe, please visit my new Tumblr blog where I’ll be posting all kinds of example of art that benefits from the protection of Fair Use.
I Support FAIR USE on Tumblr
I’d love to hear from other artists to learn how you might have faced and (hopefully) overcome issues related Fair Use. I’ve created a page on Facebook for this very purpose:
I support FAIR USE and the Copyright Act of 1976
Drop by the page, give it a like, share it with all your creative artist friends (and their friends, and their friends’ friends)! Fair use and the creative freedom it affords artists in the expression of their artistic vision is IMPORTANT. Fair Use exists for a reason. It protects the work of countless excellent artists from Ron English to Isabel Samaras, Todd Schorr and Alex Gross, to Jason Freeny and Shepard Fairey. It will continue to protect the work of artists in generations to come, especially as technology and the ability to share and distribute content evolves—but only if we stand firm and defend the rights we as artists are clearly entitled to exercise, as there are no bounds to the imagination, and unjust restrictions to our creativity should not be tolerated.
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