Laughing The Edge Off

Still stoned on the dopamitage from the lovely Valentine from the lovely dude and the lovely Audible? So am I. I think. I’m going to have to listen to the whole thing again to be REALLY certain, you know, for research purposes. Yep, research.

Anyway, over the weekend a funny thing happened on Twitter. Fellow fan @horseygal77’s husband noticed that the mahjong tile for Red Dragon

is the same character on the mighty chest of late 70’s superhero Ralph…Hinkley? Hanley? There was a name change in there somewhere. Anyway, this guy.

Not so scary, right? Just me? Okay, then. More, uh, research. Yep, research.

Jazzy’s Quick And Dirty Guide To Surviving A DMCA Takedown

This morning I got an email from another Armitage blogger who wishes to remain anonymous telling me about a Digital Millennium Copyright Act Takedown Notice that she received from her blogging platform. I am publishing this post at her suggestion, with her full knowledge, so that you can know what steps were taken both by her platform and by her, on the off chance that it comes up again for someone. It’s better to be armed with knowledge so that you know what’s required rather than being caught unawares and freaking out. Please note that I am not a lawyer and this is not intended as legal advice. Rather, I’m breaking down the steps taken by the copyright holder to protect his or her work, the steps taken by the host platform to comply with the law, and the steps taken by the blogger to resolve the issue. All examples used below are unrelated to this morning’s incident in order to protect the anonymity of the blogger.

Who The Copyright Holder Is:

The copyright holder is the owner of the material at issue. For example, if the takedown is about a fanmade wallpaper incorporating a photograph, the copyright holder is the photographer and not the fan who made the wallpaper, no matter how the wallpaper is shared or used. The photographer has the SOLE RIGHT to authorize the photo being used and also the SOLE RIGHT to file a DMCA Takedown Notice. For simplification, I am referring to the photographer as Jane Doe and, again, all examples are hypothetical except for names of platforms, such as Tumblr. I’m trying to clarify this situation, not confuse things further.

What The Copyright Holder Does:

Photographer Jane Doe is surfing around Tumblr and comes across a fanmade wallpaper using one of her photographs. She notes that the artist the wallpaper is attributed to, Joe, is unfamiliar to her and, while she admires the artistry of the work, she knows that she didn’t authorize this use of her copyrighted photograph. She clicks on the notes attached to the post and finds a link to Joe’s DeviantART gallery, where she finds the same wallpaper. She scrolls around and finds that he is licensing HER PHOTOGRAPH through a Creative Commons License and is also offering it for sale in multiple formats. She fills out DMCA complaints on Tumblr and DeviantART, swearing UNDER PENALTY OF PERJURY that she is the copyright holder.

What The Platforms Do:

On receiving the DMCA Takedown Notice from Jane, a human from the host platform disables access to the material in her complaint. The host service provider is NOT REQUIRED by law to notify Joe before it disables access to his wallpaper. Some platforms do as a matter of courtesy and one of them sends an email to Joe explaining that they’ve received a DMCA Takedown Notice. They attach a copy of the original complaint, explain that if Joe republishes the material his account will be permanently suspended, that if they receive valid complaints from other copyright holders his account will be permanently suspended , and urge him to delete any other material that infringes on any other copyright. They also send him a link to file a formal DMCA counter-notice if he believes his wallpaper falls under a Fair Use exemption to US copyright law.

What The Fan Artist Does:

Joe at this point has two choices. He can comply and the situation is over. If he wants to truly cover his behind and work with the platform he can reply back with an apology and a list of steps he’s taken to make sure it doesn’t happen again, for example notifying other people on other platforms such as Twitter who have linked to or shared his wallpaper unaware that he was NOT THE COPYRIGHT HOLDER of the image.

Joe also has the option of filing a DMCA counter-notice. If it is a valid counter-notice the platform then alerts Jane and the ball is in her court. She can ignore it and tolerate his infringement but if she was irritated enough to file against him in the first place she probably won’t. Her option now is to take Joe to court. There is NO legal requirement for the platform to restore his work to their platform while the case is being decided.

My fellow blogger of this morning elected to comply. Then she emailed me, knowing that I opened this discussion a few days ago on blog. We need to decide, each of us, how to handle this kind of thing if we are sharing media of any type. If you have dealt with and survived a takedown notice, or you have any concerns, you’re welcome to comment. One warning: IF YOU ATTACK ANYONE ELSE I WILL EDIT YOUR COMMENT INTO A VERSE FROM EDGAR ALLAN POE. It’s Halloween, after all. Comments are open.

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.

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.

#SorryNotSorry: Jeanne Phillips And The Lost Art Of Apologizing

For context: on August 10 a letter from a 24-year-old handled “Offended Daughter” appeared in “Dear Abby,” the advice column currently authored by Jeanne Phillips. It did not go over well and thousands responded. Today, Jeanne Phillips apologized…sort of.

Dear Jeanne,

Just so we’re clear, Merriam-Webster lists three definitions of the noun apology. Number one in their list is “a defense or excuse”; number two is “an admission of error or discourtesy accompanied by an expression of regret”; number three is “a poor substitute.” Number two is the definition most of us mean when we use the word and I think that’s what you thought you meant in your response to criticism in today’s column. A true apology in that sense of the word involves two words, either “I’m sorry” or “I apologize.” Both of those are complete sentences and need no qualifiers if they’re true. When you start saying things like “I’m sorry, but…” or “I’m sorry if I offended you” then you have ceased apologizing in the sense of expressing regret and started apologizing in the sense of defending or excusing yourself.

You once said of yourself, “If I have any talent, it’s getting to the root of the problem quickly.” This is particularly interesting to me in this case because you not only didn’t get to the root, you missed it entirely. I’m not a therapist any more than you are but I speak fluent Dysfunctional Family. The problem that Offended Daughter brought to you wasn’t her weight, it was that her mother lied about her weight making “other people” uncomfortable. The other people in this instance is HER MOTHER, Jeanne. Offended Daughter has every right to be offended about that, about the fact that her mother can’t own her own issue and deal with her daughter’s clothing choices and instead chooses to foist it on “other people,” using them to try to manipulate her daughter’s behavior. She not only lied to her daughter about what “other people” thought, she tried to act as a gatekeeper between her adult child and other members of their family, her aunts and cousins. Functional people don’t do that. Functional people allow adults to establish and maintain their own relationships and they don’t use those relationships to further their own ends.

The problem that she actually brought to you is a big one but did you acknowledge it? No. She came to you looking for a way to defend herself against her mother’s totally unreasonable, dishonest nonsense and did you recognize that? No. Not only no, but you DID THE EXACT SAME THING to her that her mother did. Her mother appealed to the sensibilities of “other people” and so did you. You gave it the veneer of concern by making it her doctor, but in the end you lobbed this grenade at her: “I suspect that your mother would be prouder of you if you were less complacent and more willing to do something about your weight problem.” To review, Offended Daughter’s “weight problem” is only a problem for her mother. She’s already proud of who she is. Further, you have no freaking clue that she’s “complacent” about her health. She could run marathons for all you know, she could be in excellent health, but her perception of herself — which *I* suspect is hard-won given her mother’s manipulation — doesn’t matter in your view. Her mother’s pride is all that matters here. Do you seriously not see how warped that reasoning is?

So today you printed a letter from Linda in Columbus, Ohio who pointed out, among other things, that you’re not a physician and you have no access to Offended Daughter’s medical records so you really don’t have any idea of the state of her health. This is the part where you said, “If anyone was hurt by my reply, I truly apologize.” Except here’s the thing: the qualification there? The “if”? That already makes your apology untrue. There is a world of difference between saying, “I’m sorry that I hurt you,” and saying, “I’m sorry if I hurt you.” In the first you’re owning that your behavior was hurtful. In the second you’re not owning anything unless the other person acknowledges their hurt or humiliation first, adding insult to injury. In a moment of unbelievably breathtaking cluelessness you talk about how you called Offended Daughter after you printed her original letter and, by golly, she wasn’t offended at all. Right. Like she’d tell you if she was, Jeanne. She handed you a thorny problem, you proceeded to beat her with it in front of 110 million people out of “concern,” why the hell would she hand that stick back to you a second time?

You finished your ridiculous justification today by saying, “As to my comment about her mother, I strongly suspect what I said is true, and I’ll stand by it until I hear from the woman telling me differently.” This is the one thing you said in your entire apologia that rings true. I have no doubt that her mother would be prouder of her if she was a totally different person than who she is right now. That you seem to think this is a good thing, that you’re tacitly approving of a mother who would try to drive a wedge between her daughter and other family members who do accept her as she is right now, is really disturbing. I realize that you would prefer to gloss over that teensy issue, but the fact that you didn’t get what the problem was to begin with, let alone answer the question, makes me glad I stopped reading you or taking you seriously years ago. Sorry.

Not.