Snaffle This Post

There is a snaffler among us and this  person must be dealt with, swiftly and harshly. The following was shared on Twitter a few weeks ago without the prior permission of the creator and copyright holder of the work. I share it here for commentary and criticism and possibly parody. I have no idea if any of that actually applies, but it’s worth a shot.

I did not ask permission. I plan to ask forgiveness.

I did not ask permission. I plan to ask forgiveness.

You’re aware of who the snaffler was in that case, right? @RCArmitage? I’m not calling The Dude out by any means here. I’m using that instance to make a larger point with regard to the constant drama about copyright of the last few weeks: some snaffling we tolerate depending on who’s doing it and what the circumstances are. I personally find it unbelievable that anyone in this fandom has the totally backward notion that fan artists of any type are entitled to a stricter level of protection from snaffling than they are themselves extending to the creator/copyright holder.

Let’s say Armitage works with a photographer who’s new to us, Joe Schmoe from Cleveland. A fan site asks for and gets permission from Schmoe to post the photos from the shoot with the notation that they have permission. That permission extends only to that site, not to me. If I want to use one of those photos for some other purpose, including creating a piece of art (note: I have zero artistic talent, this is totally hypothetical), I have to ask his permission myself, even if he’s already granted that permission to the fan site for the purpose of posting it in a gallery. Say I take one of the photos from that gallery and sketch it without asking his permission first. As long as it stays in my sketch book, I’m probably safe. Let’s say that I want to put it up at DevaintART. As soon as I do that I might be infringing on Schmoe’s copyright. He as the copyright holder has the sole right to grant permission to use his work for derivative works. He might choose to tolerate my hypothetical infringement or he might not. If he doesn’t he has the right to file a DMCA takedown notice with the host site and they in compliance with US law (DeviantART is in California) have to remove my work. I can’t use what I perceive as his tolerance of any other work as a defense because the creator of that work might well have asked for and been granted permission. A court might find my piece to be Fair Use but in order for them to do that one of us in this hypothetical situation has to have filed suit against the other. I can believe wholeheartedly that my sketch falls under Fair Use but if I can’t convince a judge of that I’m out of luck. Additionally, if I’ve read DeviantART’s Submission Policy, I’ve agreed by posting the work to the site that I already have whatever legal clearances, including permission from a third party copyright holder, are necessary before I post the work (Submission Policy Section 7, subsection b).

There’s a lot of fan art floating around out there, so why would Schmoe hypothetically choose my piece and not another artist’s? The only reason he needs is his copyright but there are things that make it more likely to happen. Maybe I’m selling prints of my sketch from his photo. Maybe I’m licensing distribution of my sketch through a Creative Commons License that includes a provision that prohibits other people from making adaptations of my work and he just granted permission to a different artist to make a sketch for an official Armitage website from the same photo and he’s afraid that the CCL on my work will impact on that derivative work’s copyright. Maybe I’m making noises about registering for copyright protection for my sketch. If I do these things, I increase the likelihood of his filing a DMCA takedown and the possibility of an infringement suit.

I love transformative works, obviously, so I’m not saying don’t create them or trying to stop you from creating them. Heck, I run a blog that supports writers who emerged from the fic community. What I am saying here is keep fan art and fan works in perspective and be sensitive to the rights of the actual copyright holders. The fic community in this fandom is vibrant in part because two of Armitage’s most popular characters – John Thornton and Guy of Gisborne – are in the public domain and copyright isn’t a consideration if you’re working from public domain sources. Not all sources are public domain, though. If I were to write a fic about John Porter and post it on An Archive of Our Own and someone other than me decided to post it at FanFiction.Net as original-to-him-or-her the only recourse I have is flagging it for plagiarism at FFN and dealing with it that way. FFN deals with this on a more or less regular basis and their response time is about 48 hours. I have absolutely no right to claim copyright infringement because I am using Chris Ryan’s copyrighted character without his permission. There’s a reason E. L. James renamed her male character Christian and heavily revised her fic before she published 50 Shades of Grey, and no, I don’t want to hear how you feel about that book or the Twilight series.

Tumblr, DeviantART and other social media sites each have ways to report misattributed or non-attributed work and that’s what we as a fandom have to work with. These increasingly bitter fights in public spaces like Twitter, sometimes pulling in copyright holders themselves, make all of us look foolish. If you seriously want to try to make a LEGAL case out of someone sharing your work without permission when in creating it you used someone else’s copyrighted material without their permission, be my guest. Just be careful swinging that copyright stick. You might wind up smacking yourself in the face.

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40 Comments (+add yours?)

  1. guylty
    Oct 22, 2014 @ 19:29:23

    Hear hear. Great summary, Jazz. What appears to be a grey area of copyright really is none at all. The *original* artwork belongs to the creator and is protected by copyright. Full stop.

    Liked by 3 people

    Reply

  2. zeesmuse
    Oct 22, 2014 @ 19:49:07

    APPLAUSE!!!!!

    Liked by 1 person

    Reply

    • jazzbaby1
      Oct 22, 2014 @ 22:54:04

      Thanks, zee!

      Like

      Reply

      • zeesmuse
        Oct 23, 2014 @ 08:22:05

        As others have mentioned, as of late, I’ve been appalled at the attitudes and the backstabbing in the fandom. And that’s what’s been going on – backstabbing! It reminds me of why I stay OUT of organized fandom! Sadly, if even lightly treading on the edges is going to get one spanked… sorry. I only let certain people spank me and right now that elite group is one. Sir Guy of Gisborne.

        And you know, I’ll enjoy that. I have NOT enjoyed the wankery as of late.

        I told someone – I forget who – Richard would just be SO upset if her knew what his well-wishers did to each other – and for what? Brownie points? Brownie points with who?

        Meh!

        Like

      • zeesmuse
        Oct 23, 2014 @ 08:25:36

        He, not her. Sheesh. Sorry. Trying to multi-task. (Post and open a bottle of water and load a movie. To Kill a Mockingbird.)

        Like

    • jazzbaby1
      Oct 23, 2014 @ 12:44:53

      Oh, the backstabbing and bullying is a whole other piece of this and a piece that I don’t know that I can address rationally. I will say this: bullying and actively encouraging others to bully is NOT the behavior of a rational adult and I’m not talking about age here. If you want me to take you seriously then check yourself.

      Liked by 1 person

      Reply

      • zeesmuse
        Oct 24, 2014 @ 18:13:21

        I’ve been in several fandoms over the last…. 12 years or so. You find bullying and backstabbing in all of them. I could tell you stories. All over different stuff. Jealousy, someone wanting to be ‘The Fan’… I don’t like this website, therefore… unreal. It’s why I stay out or skirt the edges. Or try to. I think I was assimilated into the RArmy…

        Liked by 1 person

      • jollytr
        Oct 24, 2014 @ 20:54:20

        Where two or more are gathered, there’s bound to be a dispute at one point or another. The good thing is, where two or more are gathered there is also laughter, fellowship and encouragement. I’ve seen acts of kindness that make my heart sing and strangers become friends against all odds. There’s a little darkness but I think there’s much more light. That’s my sappy pollyanna speech for the day 😉

        Liked by 3 people

      • jazzbaby1
        Oct 24, 2014 @ 19:05:07

        Resistance is futile. 🙂

        Liked by 1 person

  3. Servetus
    Oct 22, 2014 @ 20:27:47

    Reblogged this on Me + Richard Armitage and commented:
    Yes.

    Liked by 1 person

    Reply

  4. Servetus
    Oct 22, 2014 @ 20:40:25

    It’s really chilling, what we’ve been experiencing lately. If the amateur copyright police are going to be located in the fandom, I have to say, that is a reason a lot of fans will want to go. (Happened after the last copyright scare already.) What those policers do is silly, wrongheaded, and not even reflective of the actual legal situation, but the psychological blow it makes ricochets all over the place.

    Liked by 1 person

    Reply

    • jazzbaby1
      Oct 22, 2014 @ 22:59:07

      I find it really frustrating that people who have a limited understanding of what they’re really saying are using this issue to bully others, including involving a copyright holder. You want to open that door, fine. You walk through it first.

      Liked by 3 people

      Reply

      • Servetus
        Oct 23, 2014 @ 23:21:55

        So far this has been a fandom without lawsuits, although there have been at least one, maybe two incidents that might have been lawsuit worthy. The thought that any of us would get into a situation where we’d be encouraging either each other to file suit against a fellow fan, or encouraging a third party to sue one of us, provokes nothing but grief in me. But folly brings forth folly, I find, increasingly.

        Liked by 2 people

      • jazzbaby1
        Oct 24, 2014 @ 09:39:02

        It does in me, as well, and we need to be sensitive to what bullying and trying to use the law as a stick to smack others in our own community has the potential to do to the community as a whole. Expanding on suse’s point below about differences in copyright law by country, you have to be aware of what laws apply in different countries. If an artist is living in Italy, for example, Italian law applies to his or her activities. Italian law heavily skews toward author’s rights, there is no provision equivalent to fair use or fair dealing as we use it in the US, and penalties can include fines or imprisonment. What effect would it have on us as a community if one of us paid a stiff fine or spent time in prison because of fan activity?

        Liked by 1 person

  5. Gratiana Lovelace
    Oct 22, 2014 @ 20:56:26

    Great summary! Though I have missed hearing about the current kerfuffle’s details, your description of it is sufficient to get a general idea.

    Liked by 1 person

    Reply

  6. Perry
    Oct 22, 2014 @ 21:53:28

    A post like this has been long overdue based on recent twitter scare campaigns.Brava.

    Liked by 2 people

    Reply

  7. katie70
    Oct 22, 2014 @ 23:18:20

    I think that your summary nailed it just right. I seem to be out of the loop in the fandom as of late. To much other stuff going on but in some ways maybe that’s ok.

    Liked by 1 person

    Reply

  8. jollytr
    Oct 22, 2014 @ 23:19:01

    A little while ago I did an edit on a photo that’s about 3 years old. I’ve since seen it on Twitter, Facebook, Pinterest and part of a collage on Tumblr. In pre-Tumlbr days I would have been chuffed that something I did was so well received. Wooo-wooo!

    However, I have had it beaten into me that editors “own” the new version of the photos and anyone who dares post it without permission is a heinous criminal who should be lashed and lose their social media privileges. I should have been outraged at the blatant theft of my distinctive edit.

    That’s just crazy talk. The circuit courts of the US can’t even agree on laches wrt copyright infringement so how can fair use copyright infringement exemptions be so confidently bestowed upon ‘editors’ when Fair Use rules provide no such guarantees?

    They can’t! And as you said, encouraging people to claim copyright rights is a dangerous thing which could end up leaving them with a nasty legal sting of their own.

    Here’s what I’ve learned: Be generously respectful (of individuals and the community). Wherever possible, provide full, accurate attribution. I’ll never claim someone else’s work as my own. If someone says they want to be asked before anything’s done with their work, honour their wishes.

    And on the other side of the same coin, I don’t get bent out of shape if someone re-posts from me. Unless they outright claim it as their own, it’s a compliment.

    Ultimately, unless I took the photograph myself and/or am willing to go to court to defend my claim of Fair Use (Fair Dealing actually, I’m in Canada), I make no definitive copyright claim to it.

    THANK YOU for this post and review of issues important to all of us on the social interwebs!

    Liked by 2 people

    Reply

  9. jazzbaby1
    Oct 22, 2014 @ 23:32:41

    I think your comment might have been longer than my post, dude. 😉

    Liked by 1 person

    Reply

  10. Trackback: RA Today ~ October 22 | jollytr62
  11. suse3
    Oct 23, 2014 @ 08:26:20

    Well said!!!!
    I am relieved to see somebody summarizing this subject so well. Luckily I don’t follow those who seem to have caused the dispute but I witnessed some of the fallout which has convinced me again that I have done right in taking a back seat as far as the fandom is concerned.
    Copyright is a broad and complex field and even lawyers tend to differ in and on many cases. I live in Germany and again there are huge differences between U.S: and European copyright law. One thing is for sure. Each time I post a pic on facebook, twitter and instagram which I haven’t taken (or drawn or painted…) myself I disregard somebody’s copyright.
    I run a job-related twitter and FB account and have instructed my social media team to be very careful in posting pics, YT videos etc for exactly that reason. I don’t want to have the institution I work for involved in a copyright infringement case. However, on my private social media accounts I have posted pics of RA which were of course taken by a photographer who resp. whose agency holds the copyright. I regularly post cartoons or photos I have found on google. That is a copyright infringement too. Virtually everybody I interact with does the same.
    I simply do not understand why somebody behaved like they did and as I said, if things like those continue there’ll probably be more and more of us who will stop communicating on social media. That would be a real pity as I have had many lovely and funny chats with people all over the world via the fandom and I have even met a few of them in person.
    I really hope people will stop educating or even policing each other. Live and live is my motto. It saves a lot of stress and negative vibes and allows me to actually enjoy and have fun in the fandom…

    Liked by 4 people

    Reply

    • jazzbaby1
      Oct 23, 2014 @ 12:57:08

      Thanks for commenting, suse, and welcome to the blog. The point you bring up with regard to the differences in copyright between countries is a really good one, too. In my hypothetical example everyone was in the US but that isn’t normally the way this stuff shakes out. It’s important to be cognizant of the differences in the law as they vary between jurisdictions.

      Liked by 1 person

      Reply

  12. suse3
    Oct 23, 2014 @ 09:38:28

    That should have been “live and let live” of course…

    Liked by 2 people

    Reply

  13. jollytr
    Oct 23, 2014 @ 11:08:52

    Reblogged this on jollytr62.

    Like

    Reply

  14. Fatima
    Oct 23, 2014 @ 11:44:38

    I started following Doug Savage on Twitter. His comics are funny, and he’s Canadian. (Way to represent!)

    Liked by 2 people

    Reply

  15. Fatima
    Oct 23, 2014 @ 11:48:08

    The post highlights what’s happening with copyright in an age of social media, mashing, and simply trying to use it in the classroom. I deal with copyright on some level every day, and sometimes changes makes things more confused not less.
    I say arm yourself with enough knowledge, and better than the amateur copyright police. Notice the people screaming the most doth protest too much. (Translation: Dude, you stole my edited picture, and you accuse ME of being wrong.)

    Liked by 1 person

    Reply

  16. Joanna
    Oct 23, 2014 @ 14:17:27

    IMHO, all great web artists should start cutting off their ears ;)…to protest! 😀

    Liked by 2 people

    Reply

  17. saraobsessed
    Oct 24, 2014 @ 23:17:18

    That you very much for continuing out respectful debate as you promised. I am left a few questions. Why did you state Guy of Gisborne is in the Public Domain? I am curious as to your rationale of Guy being acceptable for a transformational work, yet on Twitter took exception to an artist’s rendering of Richard as John Proctor. Why do you include John Thornton, yet exclude John Standring (being based on Wuthering Heights – which like North & South is in the public domain)? Case law (e.g. Blanch v. Koons & Cariou v. Prince) has found that appropriation art is allowable. This applies to all forms of creative endeavors, be it drawing, painting, collages, sculpture, music, and written works. If you make it into something new and different, that is transformative. People who post whatever they “find” on the internet as if they had created it, or act as if somehow they become a copyright holder by purchasing a magazine or DVD, is what I do not think is a defensible position. There are SHARE, retweet and reblog buttons one can use to link or spread an original post.
    As for Cyberbullying, we should all take a stand against those bullying behaviors which include Harrassment, Cyberstalking, Denigration (sending or posting cruel rumors and falsehoods to damage reputation and friendships), Impersonation, and
    Exclusion (intentionally and cruelly excluding someone from an online group).
    Unfortunately, I have found an awful lot of hypocrites exist in this fandom. Since it’s the only one that interests me, I’ll just learn to deal with it. Viva Richard Armitage. Snaffle away, sir!

    Like

    Reply

    • jazzbaby1
      Oct 25, 2014 @ 10:42:15

      You have to look at the source material. Guy of Gisborne, antagonist of Robin Hood and paid heavy in the service of the Sheriff of Nottingham, has been public domain for hundreds of years. He’s part of the Robin Hood legend. Public domain characters cannot be copyrighted but works using them are derivative and the authors own the copyright on the representations that are unique to that work. A Guy of Gisborne isn’t a creation of The BBC but a Guy of Gisborne with a sister named Isabella, who is their creation, is. The BBC owns everything associated with their show that is not public domain, including images, music, words spoken, etc. North & South by Elizabeth Gaskell is in the public domain so John, Margaret, the Hales, Dixon, Higgins, etc, are public domain. The BBC owns elements that are unique to their particular telling, including the music, words spoken that are not written by Gaskell, etc. All of the characters that appear in Sparkhouse are creations of whoever wrote it but, yes, Wuthering Heights is public domain.

      John Proctor the person is public domain because he was an actual historical person. The representation of him that appears in The Crucible, the words he speaks that were written by Miller that are not from the public domain via court records and historical documents are copyrighted to Arthur Miller and all of his copyrighted material is owned by his estate. The image that the artist on Twitter was saying was shared without her permission was a rendering of a screencap from the version that was filmed and is currently being edited by Digital Theatre. Who owns that image? I’m not certain because I don’t have any idea which entity licensed what but MY not knowing does not put that image in the public domain. Neither is it in the public domain if the artist in question doesn’t realize it isn’t.

      As for the legal decisions you mentioned above, neither of those has anything to do with fan art. Koons has lost more copyright infringement cases against him than he’s won and the one that he filed against someone else was dismissed. When transformative works are tolerated it’s mostly because the fans who make them acknowledge that they have no copyright claim. When a fan artist, as in this case, starts asserting the right to license an image that she used without permission, that threatens that balance. A CCL is another form of copyright so she is making the claim that she has the legal right to use the copyrighted image and if she didn’t ask the permission of the owner of the copyright she doesn’t. No, when you buy a DVD you don’t own the copyright to the film. You also don’t own the copyright to a photograph when you download it.

      Liked by 2 people

      Reply

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