GIFS and Scanned Images: Copyright issues

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Title:	GIFS and Scanned Images: Copyright issues
Creator:	Mel White
Date(s):	March 1993
Medium:	print
Fandom:	fanart
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GIFS and Scanned Images: Copyright issues is a 1993 essay by Mel White.

It was printed in Artistic Endeavors #9.

Some Topics Discussed

• copyright and artists enforcing their rights with cease and desist letters, and with lawyers
• fanart
• plagiarism
• "the freewheeling atmosphere of today's computer literate society"

From the Essay

In the past few years I've been approached by a number of artists saying "a friend of mine wants to scan some of my images and upload them to a BBS. What do you think of this?" Generally the kind- hearted computer-ist has offered the artist a number of persuasive arguments; and the most common is "there are millions of people who collect these images. You'll get a LOT of exposure! And if you put your name and address on it, you'll get commissions from everywhere."

My reaction, as [personal info redacted] and Sysop of a BBS and professional artist is that it's one of the worst things that can happen to the art and the artist. I do not (under any circumstances) give permission for my artwork to be scanned and distributed My advice to any artist who has encountered this offer is that they should go back to the friend and say sweetly, "Thanks ever so much ~ but no thanks. It may lead to abuse of my copyrights. And if you ever SEE anyone uploading my stuff, please let me know so I can sue the socks off them."

With the advent of relatively inexpensive flatbed scanners, many people have taken advantage of the technology to produce disks of scanned artwork that they really like. Eager to share their "find" with the world, they upload the images to as many BBSs as they think will take it. The artist's copyright may or may not appear, and signature and credits are often dropped from these images. Occasionally the image will be manipulated, focusing on a particular section of the work.

It's true that thousands of people see these images that are passed along from computer to computer. Is it worth the exposure to turn your artwork into clip art? The artist of one of the most famous and commercial pieces of clip art, "Bob Dobbs", does not get paid a royalty each time that image is used. Scanned artwork is treated as cavalierly as the "Bob Dobbs" image and, as artist of scanned images, your position will be much the same as the artist who drew that now-famous face.

GIFs are treated by the public as "free clip art". I've seen them dropped into newsletters, bundled in packages for word processor clip art, used as letterheads and logos, and cut-and-pasted to make new characters (generally drawing their own heads on the artist's original figures - and the artwork is treated as the clip artist's own and yes, I've heard of some of them trying to sell this stuff). It could possibly be colored up and sold as tee-shirts.

Unfortunately, the ones that this hits hardest are those who can least afford it; the artists earning less than $10,000/year on their artwork. One artist, seeking commissions, had a friend upload and distribute three pieces of artwork with his name and address on them. Someone else, seeing the images, assumed that the artist had given permission to upload any piece of his artwork. Within 5 days, a portfolio of his had been scanned and distributed across Internet to thousands of BBSs (his name and address were not included in these scans, by the way). Has he received any commissions from the distribution? Not to my knowledge.

Character copyrights become very difficult to control in an uploaded image. One thing that can happen is that your character or character design can be thrown into the public domain/clip art category. To those who have commercially producing characters (such as comic book characters or characters in a print series) this can cause loss of copyright.

Remember, under the US copyright law, you MUST enforce your copyright at all levels and follow up on all infractions (no matter how small). Otherwise, if you decide to prosecute someone for producing a line of tee shirts for the Target Discount Stores featuring your characters, the courts will rule against you. The argument used will be that you hadn't enforced copyright violations before— it was obviously intended as public domain material. You, as the artist, have no grounds to sue for a percentage of the profits and have no legal basis to object if the image is turned into a popular cartoon character for a kids' morning show. Clip art, by definition, belongs to everyone to do with as they wish. To protect themselves, the artist must begin enforcing their copyrights when they become aware of a copyright violation. As I understand it, a simple cease-and-desist letter (usually certified) to the violator's address is sufficient. However, stronger measures may need to be taken for violators who think the copyright issue is all bluff and no teeth. When dealing with a persistent violator, the artist must register the copyrighted work(s), if not already registered, and get a lawyer involved. The lawyer will generally send a second cease-and-desist, notify a trade society (e.g.; ASCAP, BMI for music, SPA for programs, etc.), or notify copyright enforcement agencies (e.g.: the FBI), or file suit in Federal Court- or all of the above. The penalties for copyright infringement vary from "slap-on-the-wrist" (usually in cases where the artwork was used on a letterhead or a sign or other situation where no economic benefit was obtained by the violator) to awards of treble damages (based on the gross profit) to jail terms.

According to one report, at least one of the large computer service firms was hit by or threatened by a lawsuit because they had artists' materials in their GIF libraries that had not been approved by the artist for upload. Compuserv and GEnie now have a policy that the only artwork uploaded MUST be by the person uploading it. I have heard, but can't confirm, that America Online also has such a policy. This doesn't prevent frauds, of course, but by taking this stance it absolves the computer services of liability if a question came up about who owned the copyrights to a certain picture or piece of artwork. BBSs that don't use this rule can be included in copyright lawsuits as illegally distributing copyrighted material - something that many sysops should be aware of but don't seem to enforce strictly.

There may come a time in the future when uploading your work as scanned images becomes a controlled form of publication where the artists' rights and copyrights are understood and controlled. But in the freewheeling atmosphere of today's computer literate society, any artist who offers their work for BBS upload should be aware of the negative side of the issue and think very carefully before giving permission.

Fan Comments

I wholeheartedly agree with Mel on this subject. I too, was recently contacted by a young man out of Ohio who wanted to upload some of my snow leopard centaurs to some BBS for others to see. Fortunately, I am computer literate and have free run around the insides on Internet. (Internet for those who may hot know is a world-wide computer network that links scientific institutions by modem virtualy everywhere. Lately, Internet has become available to the general public for a subscription fee.) I know all too well how easy it is for material to get shunted all over creation in a matter of mere seconds. One way this might happen IS if your art happens to get to someone who controls a "mailing list". This is a list of email addresses that the art can be copied to by typing in one line, then, no matter how many people are on that list or where they are in the world, they will all get copies of that file. Internet is also connected to Genie and Compuserve, two commercially available bulletin boards that the public can subscribe to easily.

The potential for runaway, out-of-control copying of your art is unbelievable and very real. Thankfully I avoided that bottomless trap by telling the young man that wile I appreciated his offer, it would be in violation of other users of my copyrights who have rightfuly paid for the privilege. He probably didn't even consider the implications himself. To him they were pretty pictures that he could upload to some BBS (Bulletin Boards Service) and get credits towards downloading some other file he wanted from their library. New files, even GIF files are a valuable trading tool since unlike other functional shareware or freeware programs GIF files are scanned. Trading credits can be had for a few minutes of scanning instead of hours of programming. A real possibility exists that rather than 'being a real fan of your art', he's really just putting together a file he can ship up to a BBS in trade for a more complex, probably also-pirated utility program. Hey ,it happens everyday for every computer available, even the old Commodore 64's and Atari series.

As Mel says, the best way to protect yourself is to decline every offer with some kind of mention of copyright protection to gently remind the asker that you wil enforce it.

I'm constantly on the prowl for copyright violators and will notify the artist by mail with all the information I can get on the violator. Some people cringe at some of the things I've found and the people l've turned in, but remember, I'M ON THE ARTISTS SIDE FIRST! I can only hope that there are people out there looking out for me as well. I have a 100% record, meaning that every violator I have found was really a pirate in every sense and the artists took action in every case.

For instance: I work in a drugstore two days out of the week (for the employee discount!) and while straightening magazines, I noticed a crossword puzzle book named LUCKY CROSSWORDS. The cover had two very recognizable characters (Skywise and a Windrider) from Wendy and Richards Pini's ELFQUEST comic books. After looking in the colophon for permission to use the characters, I bought the book and sent a photocopy of the cover and colophon to the Pinis. I also found the page in one issue of the comic where the image had apparently been clipped from. (Both characters feet were missing in the comic panel but on the cover of the magazine, someone had crudely drawn in feet that looked totally wrong.) I later received a letter from Richard saying that they were "running the culprits to the ground." I also heard later that a blurb appeared m the Comic Book Buyer's Guide (I think) about the incident stating that the person responsible had to pay back all the monies received for the cover work in addition to a fee for the use of the image. The magazine itself was allegedly unaware that the art was not original.

Another good one I nabbed was for Bill Waterson of Calvin and Hobbes fame. Mr. Watterson had made it clear in an earlier letter that he was not going to 'Garfield-ize' his characters by merchandising them to death. In fact, he realy doesn't merchandise them at all. That's when I knew that the girl selling Hobbes dolls here locally couldn't have had permission. She was manufacturing the things and even taking orders for them at local cons. Alter I wrote to Mr. Watterson, including one of the woman's' business cards and detailing her activities, she stopped selling the dolls altogether. Was I being unfair to a fellow fan'? Not at all. That person was leeching off of an artist's skills and stealing profits that were not hers by any rule in the book. Just because she's a fan doesn't automatically mean she's honest.

[snipped, more reported infractions, and more "grateful and delighted lawyers"]

The magnet had evidently been traced because the cracks in the eggshell were nearly identical. Ms. Pena and Windstone Editions were very pleased and thanked me profusely for such an unusual find.

These are but a few of my triumphs over the years and I'm sure I'l find more. I tend to hunt mostly outside the fannish community, since that is where the most egregious violations occur. But believe me, I've not intention of stopping here. It's worth all our while to protect each other as much as possible. If we all did it, the buying community might be a little more respectful of our copyrights as a whole.

I've heard from a number of artists recently who have run afoul of the art on BBS problem. It seems to be quite the growing trend. I understand that some of the furrie art fans have tons of art on the net for anyone to look at. One has to wonder how much of it Is there with the artist's permission. Just what can you do, if someone has put your art Into the system without asking? I assume it's too late to get it pulled. Any advice?

[snipped]

ClariNet contacted me for a Hugo award anthology they are publishing in electronic form. They are even doing a CD version. They wanted the fan art as well. After talking to them, their assurances boil down to "we've done everything, but..." Well, after considering it a while, I wanted to be in the CD. So I'm holding my breath and keeping my bloody fingers crossed, and have figured that's the end of those pics. Still, the whole project sounds refreshingly fun, and at least the fan categories weren't forgotten.}]