Blogorrhea Junior

Blogging, Aggregators & Copyright

Copyright issues: they just never go away. Remember that new blog I started, the one called Dowsing? Boy, what a headache that turned into. Don't get me wrong: I love writing the blog. It's fun to have a personal journal again, a place where I can write merely for the purpose of expressing my thoughts—with the usual writer's eye to mining those posts for use elsewhere, which is why I went to the trouble of putting a clear copyright statement on it. This blog only has a Collective Commons copyright, stating that people are free to use the content, unaltered, for non-commercial purposes. I'm happy to have people subscribe to the feed, link, quote, or use the content for educational purposes. What I almost always protest is people just posting my content to draw traffic to their site, which may or may not have anything to do with book arts. Write your own damn content then. Don't steal from others.

So Dowsing, simply by virtue of its name, has ended up in the aggregate feed for a site called "Life Technology™. They sell pseudo-scientific, New Agey crap like Tesla oscillation fields, alchemical compounds, and Atlantean crystals (!! No, seriously!). So it's rather ironic that they're using my content on their site, since what Dowsing is all about is freedom from bad science and superstition. I've got hardly any hits on Dowsing, which I really don't care about in that sense. People will find it and read it if they're interested. It's as much for me as it is a public endeavor. So when I found Life Technology™'s URL in my stats, I was curious, and then I was pissed off.  But I'll let you read the exchange; here's what I wrote to them yesterday:

I notice that the content on your site is protected by the Digital Millennium Copyright act. Guess what? So is mine. Please stop lifting content from my blog, Dowsing (http://leekottner.typepad.com/dowsing/), to use on your website as its purpose is antithetical to everything on your site. You have no less than a dozen posts from my blog on your dowsing page (http://www.lifetechnology.org/dowsing.php). Please remove them now or I will be filing a complaint with your ISP and website host.

Sincerely,

Lee Kottner

And here's the nice little note I got in return this morning:

dear lee,
our news headlines at www.lifetechnology.org/dowsing.php are used according to fair use provisions and are intended to direct people to relevant sites.

you can read more about the fair use policy at http://en.wikipedia.org/wiki/Fair_use

we have not published your articles, only headings with links to your articles at your own blog.

if we were breaking copyright provisions as you claim then most sites on the web would also be breaking the rules but that is not the case.

this law has been tested in court many times and rulings have universally been in the favour of the blogger.

thank you
kirsty

Are you laughing yet? I was. Wikipedia, huh? Here's my reply:

First of all, Kirsty, this is a very flimsy and erroneous argument, and you have picked the wrong person to use it on. I've written a series of posts on copyright for artists on another blog, so I'm fairly well educated about it. Find yourself a better source than Wikipedia. Try the U.S. Government copyright office instead.

As one of the intellectual property lawyers I spoke to said, "fair use only earns you the right to go to court." Fair use is in the eye of the copyright holder, who is much more likely to be favored in a court case than the person in violation; there is no hard and fast rule about proportion or magic number of words that the user may interpret for their own purposes. You are not using just the "headlines" from my posts; you are using much of the introductory paragraph. The feed from yesterday's post (7/02 "It's Just That Simple") uses almost the entire post, since it was a short written introductory paragraph with a video attached. The fact that you have selections from more than half of my posts would probably count against you too. I've become a major source for that particular feed, simply because my blog is called "Dowsing." As of this date, there are only 30 posts on my blog. 13 of those posts appear in some form on your page. That's a high proportion of content.

 

Fair use usually holds up best in court when it is used for educational purposes, in a classroom, or by artists. Your site is clearly primarily a commercial endeavor, not a news and information aggregator, and you are using my content to draw commercial traffic to your commercial site. Either you offer me a fee for the use of my content in this way, since you are clearly using it in a commercial manner, or you are in violation of my copyright, which states that my content cannot be used for commercial purposes unless I agree to it. I have not agreed, so you're in violation.

 

If you'd like a clear run-down on "fair use" you can find it here, at the U.S. Government copyright office site: http://www.copyright.gov/fls/fl102.html. It clearly states that commercial use has less protection than non-profit or educational uses. It also clearly states that the safest course is always to get permission, which you have not done. Here are some of the uses which have generally been considered "Fair use" in the past.

 

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use:

quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

 

None of these fit your case. In your reply, you state: "this law has been tested in court many times and rulings have universally been in the favour of the blogger." Guess what? You're not the blogger here. I am. You are the aggregator. The Associated Press has recently sued a news aggregator over just this issue. You can read about it here: http://arstechnica.com/news.ars/post/20071010-associated-press-sues-news-aggregator-for-licensing-failure.html

Secondly my site is not a "news" site nor is it relevant to your content; it is not about the paranormal, or dowsing, and is in fact, in part about real science, not the fake kind you're selling to gullible seekers. Now, if you'd like to see a totally scientific debunking about every one of your products appear in that "news" feed from my site, I'll be happy to oblige. It happens to fit my subject matter pretty tidily. I also happen to know a couple of well-respected science writers (and physicists) who'd be happy to pitch in, I'm sure.

Section 1204 sets out a hefty penalty for copyright infringement: 

§ 1204. Criminal offenses and penalties

(a) GENERAL  Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

I went to the trouble of clearly marking this site as copyrighted because I intend to use some of the posts in a non-fiction book. Your publication of them without my consent and without a fee injures me as an author and I think a court would side with me on this. Do you really want to risk a half-million dollar fine on this? And that's not counting the $100,000 for each infringement, i.e, each separate use of one of my posts. That's well over a million dollars in fines should it reach the maximum. Not to mention jail time.

Care to risk it?

Sincerely,

Lee Kottner

Oddly enough, within an hour of receiving this, the feed from the news pages disappeared from their site. I suspect there is some serious editing of the spider going on.

UPDATE: Then the feed came back, and I began plotting with Jen to do the debunking posts, but this morning, I got a little note from their "legal counsel":

Dear Lee,

Thank you for your bringing your DMCA related concerns to our attention.

 

Life Technology acts as a news aggregator to provide news stories for the purpose of disemmination [sic] of news in categories that are relevant to our website. Dowsing is one such area that we are involved in. You will find many bona fide articles about dowsing at our website and blog. Despite what you seem to believe, our news stories are offered for educational purposes.

 

We are not guilty of publishing your work for our commercial gain nor have we acted in bad faith.

 

From a legal perspective, an infringement case would be very weak. There is strong argument for a fair use defense here. The brief exerpts [sic] of your work posted by ourselves are not stifling demand for your work. We are actually creating demand, not decreasing demand by providing links to the original work. Further, posting excerpts of the articles and linking to the original facilitates and invites critical discussion of the content, one of the primary reasons for the fair use defense.

 

You could not use the argument that we are diminishing the value of your work by disseminating copyrighted work prior to the publication of a book if you are publishing these exerpts into the public domain yourself.

 

Links are the currency of the internet. Instead of harassing bloggers etc., you should be praising them for bringing people to your content. It's a very poor business decision to ask people not to facilitate access to your product.

 

We are aware of the recent filing where Associated Press is suing a news aggregator on the same grounds. We feel that this even marks an unfortunate event in the history of the internet and free speech.

 

We have temporarily removed the offending page dowsing.php pending the outcome of The Associated Press versus Moreover technologies lawsuit and further clarification of DMCA law.

 

Thank you.

Joshua Silverberg, Legal Counsel Life Technology

Here's my reply:

Dear Joshua,

You've got an interesting interpretation of "public domain" if you think that anything on the internet is in it and thus fair game. Despite how "educational" a service you think your links provide, there is no escaping the fact that LifeTechnology is a commercial site selling goods. Your "news" feeds are merely a service; they are part of your advertising strategy, one I've employed myself in designing websites. Calling yourselves "bloggers" is disingenous and untrue. When my site provides a large proportion of your content for one of those feeds, you should be paying to use my material. I don't work for free. The harm is not in the linking, it's in the amount of material used, and the fact that my content is thus associated with a non-scientific site which lessens the value of my work. But I'll keep in mind the "increasing critical discussion" part if you start posting my material again. You won't mind me debunking the products because that will be educational. Some of my real scientific blogging friends were very excited about the prospect.

The upshot is is that you've removed the feed, and I'm happy with that.

Thank you for your cooperation.

Sincerely,

Lee Kottner

I'm not normally in favor of bullying people with the DMCA. Big corporations have made a bad habit of using it to intimidate perfectly legal uses of their content, so they can control all the money. I was happy to see The Naked Cowboy win the right to sue M&M Mars for misuse of his image for that reason. As a teacher, I'm all for fair use. But as a writer, I'm also all for being paid for your work and for having it appear only where you want it to. There's a thin and badly defined line between fair use and exploitation.

In this case, there's also the issue of guilt by association. As a writer, I do not want to be associated with any entity that sells the kind of pseudo-scientific crap this site sells. This is a list of their other "news" feeds, most of which I have a lot of objections to:

Kabbalah Radionics Magick Radiesthesia Homeopathy Alternative Health Mercola Jeff Sutherland PRWEB NLP Hypnosis Orgone Orgonite Rife Psychotronics Psionics Illuminati Alchemy Ormus Free Energy Alternative Science Spirituality Huna Metaphysics Occult Witchcraft Health Spirit Conspiracy Herbal Medicine Dowsing Healing Seduction Rosicrucian Paranormal Philosophy Technology Science Paganism Wicca Time Travel Feng Shui Atlantis UFO Scientology Zappers Cloudbusters Nikola Tesla Grimoires Chemtrails Manifesting Yoga Astrology Psychic Powers Xtrememind Forum

I hate to see yoga, spirituality, metaphysics, health, philosophy, technology, science, and Nikola Tesla lumped in with Atlantis, UFOs, Scientology, Orgone, Alchemy, and the Illuminati. Some of these things are not like the others.  I  suspect it was at least as much the threat of debunking as it was the legal talk that led to the sudden demise of the news feed. People have a right to believe whatever they like, but they also have a right not to be forced to associate or have their work associated with causes or ideas they don't condone. And control of your own intellectual work trumps, every time, the notion that information wants to be free.

[Cross posted at Dowsing]

Word Clouds & Flipped Text

A fun new toy. Boy, am I in trouble. So I thought I'd share it: go over to Wordle and make your own word cloud. You can change the fonts, the color, the word orientation, print it to a PDF, then manipulate it and re-save it as a graphic file to print on T shirts or whatever. You can also link it to your blog, as I've done here. The really lovely thing is that it's completely copyright free, which means you make it, you own exclusively, unless you also save it to Wordle's gallery, in which case everyone else can use it too.

This would be a kind of a cool tool for generating covers or pages. It takes all the hassle out of doing it in a graphic arts or page design program and  you have a fair amount of control over how it comes out. The font selection is not too shabby and you can always change the colors later, once you've got it into a jpeg or tiff format. All you have to do is come up with the content.

[This is all Painting Speech's fault. Gee, thanks!]

Then there's this site, where you can flip your text around and paste it in wherever, ˙ooʇ uı ǝɯıʇ ǝlʇʇıl ɐ noʎ sǝʌɐs ɥɔıɥʍ though it does tend to make the punctuation a little confusing. And it doesn't have any font or color options.

[Blame this one on TJ Book Arts.  Cross-posted at Dowsing]

I'd Rather Be in the Studio!

How many times have you said that when you're doing something else, even stuff to promote yourself, or keep food on the table? Art is way more fun and way more satisfying than promoting art, but unless you're only doing it as a hobby and don't care if anyone but your family ever sees any of it, you've got to promote it. Since that's what I'm interested in doing, I've been reading Alyson Stanfield's Art Biz Blog for about a year now. It's full of great tips and information on promoting your art and making it at the same time. Now she's got a book, and she's on a blog book tour with it. Check her out on Christine DeCamp's Passion for Painting, where Alyson's giving advice on how to get other people's information for networking. On top of that, you can win a free copy of her book by helping get the word out (a clever ploy, Alyson!). See, I'm doing it, but only because after a year of reading Alyson's blog, I'm sure the book is worth it. And if I don't win a copy, I'm buying one. You should too.

Materials, Girl

One of the things I like best about book arts is the multimedia bit. It's not just paper. It's glue and fabric and wire and beads and paint and whatever the heck else happens to by lying around your house (which in some cases, not yet mine, might include stray cat hair). The person who first taught me to bind books was actually a book conservator working in a university library. She made truly expert repairs and rebindings and was a great teacher, but we often disagreed later on whether to use certain materials and build the book to last, or build it the way we wanted it to look, regardless of what the materials would do later.

Lasqueti Press has an interesting rumination on just this thought. What's interesting about her post is the consideration of decay as a legitimate part of the artwork. Usually, we think the point of making art is to leave something behind us as a legacy, our one chance at immortality. That's product focused rather than process focused. But everything changes. Nothing is permanent. Metal sculptures, for instance, gain a lovely patina over time, which is actually a sign of corrosion. Paint fades. Varnish cracks. Leather thins out with wear. Dirt cakes on. Buildings fall down. Sure, it was a tragedy, an inestimable loss of knowledge, when the first library of Alexandria burned to the ground. Libraries in Iraq and New Orleans suffered similarly horrible fates. But such things happen. It's quite likely, acid-free or not, that our books won't last forever either. Should we take that into consideration when we're making them?

Well, it's a nice thought, but if you're using a multiplicity of materials, it might be next to impossible to ensure that they're acid-free, or that they won't eventually interact with each other in some detrimental way in the presence of oxygen (a notoriously corrosive gas and infamous catalyst). There's a plethora of materials to use that will prolong the life of your book, from acid-free papers to Epson's DURABrite inks guaranteed to "last for generations," PVA glue, glass, and other non-reactive materials (still subject to breakage). So one thing you might want to consider when you're planning your project is how your book will age in 50, 100, 200 years in someone's collection. Some things look better as they age; books aren't generally among them. Do you want your work to have a natural shelf life, a "use by" date, built-in obsolescence? Or is it possible to build it to actually become something else as it slowly tends toward entropy, like a science experiment? It might take a bit of knowledge about chemistry to do that, but it would certainly be interesting.

No answers here, just some thoughts about working with essentially ephemeral materials. But then, words and language are pretty ephemeral too. In 500 or 600 years, will anyone understand the language of your book? Or will it be as mysterious as Middle English is to us? Will it matter?

This is one of the reasons, though, that I love reading about other people's experiments, like the texture experiment over at Val's Altered Heart Journey. I would never have thought of using joint compound to make covers.

There are some materials that are never going to last, no matter what, like the scent from these Smencils, billed as "the world's only gourmet scented pencils," which are themselves made from recycle newspaper. Than manufacturer maintains the pencils, er, smencils will maintain their scent for two years, in or out of their freshness package. Whether they'll actually make your paper smell is another matter, but you almost don't care. Sometimes it's just about the fun of working with certain materials—like the people-shaped crayons from Heli Hietala [via Arctic Oak] or the gel ink pens and markers that &rew of Urban Paper Arts and I have been talking about sources for. I think that's one of the attractions of paste paper: luscious colors and amusing messiness in the process, like finger paints. (Hmm, wonder if you could add scent to those, too. . . . )

In the end, the beauty of all these varied materials is that, as you can see, they give me ideas. And that's what it's all about.

Photographer's Rights

Sort of following up on things I mentioned in the previous post about photography, my friend MG sent me a link to Photojojo's Photography and the Law: Know Your Rights. This is sort of the flip side of the copyright post: it involves where and when you have the right to take pictures and of what and whom. There are a number of good links to other legal resources for photographers, too, as well as international links for people outside the U.S. It's nice to know, in the face of NYPD's paranoia, that it's actually legal to photograph public places in New York City, regardless of what they tell you. Those photos you want to take in the subway? All legal. The rule of thumb seems to be if it's visible from the street or visible to the public, then you can take a picture of it. What you can do with that picture is another matter, and may involve releases or trademark negotiations as I mentioned in the earlier post. But just taking the picture? Sure. It's still a (relatively) free country.

Book Arts & Copyright Part IV: CBA Professional Development Seminar

As threatened promised, I attended the Professional Development Seminar on copyright last night at the Center for Book Arts in Manhattan (also browsed the galleries while I was there, but that's another post). The presenters were two lawyer/artists or artist/lawyers from Volunteer Lawyers for the Arts: Sergio Muñoz Sarmiento, Esq. (JD, Cornell, visual artist) and Kelly Kocinski, Esq. (JD, Brooklyn Law, dancer). Great presenters, great discussion, great questions by all in attendance.

Probably the most important impression of the evening was the fact that copyright is an absolute protection for the artist, but extremely fluid when it comes to the use of other people's work. Even when working with codified laws, the legal system in this country tends to work with precedent rather than absolute interpretations, and as Kelly pointed out, decisions are often made in courtrooms according to where people feel the line should be drawn, rather than by some clear-cut criterion. In other words, as Sergio said, quoting another lawyer, "Fair use buys you the right to go to court." It's not an absolutely clear defense that protects you from being sued, even in an educational setting. Here's an example from an actual case that Sergio used to illustrate how slippery and arbitrary the law can be:

An artist uses two Disney characters in his own art, placing them in, shall we say, compromising positions. Disney, of course, sues, after getting wind of it. Because the exhibition is in a small, out-of-the-way room and not seen by many people, and restricted to adult viewers, the jury decides that gives the artist's work more protection than if it were being viewed by anyone in a big public space. As one attendee said last night, that's absurd. Welcome to the wonderful world of law; check your logic circuits at the door. Because law, like art, is a human activity.

The good news is that, as an artist, copyright is a powerful protection that gives you a bundle of rights to control your own work. As a copyright holder, you have the right to

• reproduce your work;
• perform or display it publicly;
• make pictures, photos, posters, put it in a catalog; and
• make derivative works from it, among other things.

As the copyright owner, you can license others to reproduce your work, in a different form, in a limited run, for a specific purpose, and control absolutely how it is reproduced. Copyright is essentially a property right; your work is treated as a concrete asset, like your TV. If someone walks off with your flatscreen some weekend, that's theft; if someone makes use of your art, pretty much in any way, shape, or form without your permission, that's theft, too.

These rights go into effect, thanks to recent changes in the copyright law, the moment you materialize your idea. Since copyright does not protect ideas, that idea must be made into concrete material form before you can sue someone for stealing it. And it must have been made into material form before the person you're suing did so. Proving this is the tricky part.

Registration of your copyright is your best bet, because that time-stamps your creation and provides the strongest proof that yes, indeed, this was your idea first. Against evidence of a registered copyright, there's not much defense. Registration also earns you the right to automatically have your case heard in Federal Court, which saves several steps in the inevitable appeal process. So, how do you register a copyright?

First of all, that mailing it to yourself thing means nothing, apparently. It used to, but not now. Now, you must either register your copyright electronically or by hardcopy through the mail (either is fine) with the Copyright Office. Remember that just by making your idea concrete, it is granted protection. Registering it safeguards your right to control its use and reproduction and makes it easier to sue infringers. It's an easy and fairly inexpensive process, and worth doing. Your work is copyrighted from the moment the Copyright office receives your registration materials.

This is especially important if you have an on-line portfolio, because we all know how impossible it is to keep control of our work when it hits the Internet. There are two options for registering on-line work.  You can copyright and register the entire website or blog that you build, or you can register the individual works on that blog or website. You're actually better off doing the latter, because if you register the blog or website, you must re-register it every time it's updated. The expense is probably about the same in the long run, but registering the individual works will likely give you better protection.

And, dude, if you're an infringer? You better have some pretty deep pockets. Say you make Christmas cards of somebody else's work, without their permission. Each one of those cards is a separate infringement that can cost you between $10,000-$150,000 each. Yeah, each. Did I say each? So those 25 family members and friends could cost you $250,000-$3.75 million. See your life flashing before your eyes? I did.

Here's the bad news: practically any use of other people's art or text that was created since 1922, without permission, is a copyright infringement. That includes posting pictures of other people's art on your website to say, "Hey, isn't this great stuff? Go see this exhibit!"—an activity of which I am (and most of the rest of us are, too) guilty, guilty, guilty. All those Peter Calleson emails that have been making their way around the net in the guise of a "contest" at the Hirshorn (bogus, by the way)? Copyright infringement. Even though you're doing the artist a favor by providing free publicity (which is why many of them don't object), they still legally have the right to sue your butt off, just because you didn't get permission first. The sad part is (and I'm going to start doing this), all you have to do is send the artist an email and say, "Hey, I have a blog I'd like to feature your work on. Is it okay if I use one or two of the pictures from your website, and provide a link back to it?" That way, the artist has the right to say, not just yes or no, but also, "yes, but please use this photo with this caption, at this size or resolution."  Probably very few artists are going to say no, but that one who does could own you for the rest of your natural life, financially speaking, if you post their work without permission.

That 1922 date is important, and clarified something I thought I already knew. Anything made before 1922 that hasn't had its copyright renewed, is absolutely fair game, regardless of whether it's in a museum or not. What MG and I were paying the Louvre for when we used their Three Muses image, was the right to use the high-resolution image itself. If we'd gone to the Louvre and taken a picture (something most museums don't allow for precisely this reason, although you can get permission), it would be our image of that artwork and we wouldn't have had to pay anything to anybody. Museums and archives use these "official" images as a revenue stream, and you can hardly blame them for wanting a few bucks for them. So the question you have to ask yourself is whether you need to get permission for the particular image of an artwork you want to use, rather than for the artwork itself.

How you use another artist's work is also important. This is where the concepts of "transformative" and "derivative" artwork come in. A derivative work is anything that uses the original artwork in full or (here's an important concept) in part, even if the rest of the work is entirely original. This includes using a chunk of text, a portion of an image, or, even (sometimes) using a particular font as your main design element. Contrary to popular wisdom, the amount you use does not matter. There's no fixed percentage of an image, video, sound clip, text, or anything else that's okay to use. There's no "100 word" limit, no "7-second" limit, no "10% limit." Juries are arbitrary creatures and they may decide that your 10-word phrase from a 85,000-word book or fractional reproduction of a postcard was too much. This is where Fair Use is so deceiving. If you use anything of another artist's copyrighted work without permission, that's infringement. End of story.

So what's this "transformative" business? A transformative work is one that takes another artist's work and alters it substantially. That modifier, "substantially," is the part that can mess you up. "Substantially" in whose opinion? First, the original artist's. If it's not a substantial enough alteration for them, they will sue you. Second, the jury's. If it's not a substantial enough alternation for the jury, they'll find you guilty of copyright infringement and you'll be out lawyer's fees ($500/hour), court costs, and a hefty fine (see above).

Obviously, this makes collage a risky business, if you're using copyrighted images. Is it derivative or transformative? Of course, if you're using ephemera produced before 1922, there's nothing to worry about. But even if you're using images you find on one of those art-for-free websites, there's usually a disclaimer that says you can't use that image in a commercial work. Whatever work you make with their free art has to also be free and available for mashup. This is the essence of several Creative Commons licenses. So again, make sure you know who owns the copyright and what the terms are before you use something. (Incidentally, there's an interview in the April 2008 issue of Mother Jones with Shepard Fairey of Obey the Giant fame in which he talks about about appropriating other people's work. It's not online yet, so I don't have a link for you.)

A kind of rule of thumb about transformative works that Sergio mentioned last night has to do with commercial versus artistic intent. Say you buy a copyrighted book and decided to rebind it as an art object. Since there's only one of them, you're probably pretty safe doing that (although theoretically, you could still be sued). But if you buy 500 copies of that book, rebind them, and resell them, that's a commercial intent that theoretically can be seen as harming the author's commercial market. If people buy your rebound book instead of 500 copies of his officially published book, that's 500 sales the author and the publisher have lost. Again, though, there is no hard and fast rule about how many is too many. It's all about perception—not yours, but the copyright holder's.

Likewise, if you took that single copy of the book and substantially altered the text in some way (blanking it out, painting it over, cutting it up, rearranging the signatures or pages or somehow making it generally unreadable) you're probably safe doing that. (Notice the "probably"; nothing is hard and fast under copyright except the ownership terms.) You've transformed the original book into an art object. Again, though, if you did this 500 times, you're still leaving yourself wide open to a civil suit, because it may still affect the author's sales (for instance, collectors may gravitate more toward your book than toward the author's first editions).

In addition, trademarks are something you may have to consider. Another example from Sergio: If I go down to Times Square and take a photo that includes the Minolta lightboard and there happens to be a Nike logo on it at the time, I have to get permission to have those trademarks appear in my photo before I can reproduce it commercially, even though I own the copyright on that image. With so many iconic buildings in the city, it's good to be aware the even architecture can be trademarked. One of the attendees last night works for DKNY and mentioned that they send umpteen bazillion dollars each year to the company that owns the Empire State Building to use its image in DKNY's advertisements. Who knew?

Similarly, if you use photographs of (living) people you need to get a release from them before you can reproduce their image for commercial purposes. This bummed me out because I took a bunch of great photos of some of the skaters at Rockefeller center yesterday and now I'm going to have to make sure none of them are recognizable. And boy is that tricky! Blurring out is one option, but don't count on distance to do it. Years ago, when I first moved here, I recognized myself on a greeting card photo taken as I was walking across Washington Square Park. It's a tiny image, but even my friends recognized it, before I did. The funny thing was, I saw the photographer at the time, too. Another of the attendees mentioned she'd seen a photo of her family on a documentary about WWII on PBS, and nobody had approached them for a release, either. She didn't care, but don't discount the fact that someone else might.

If you've been paying attention, you know that almost every statement I've made about copyright is followed by the words "without permission." That's the simple rule with copyright. Get permission. Ask the artist or writer if you can use their work. It isn't always costly and it can lead to some really great collaborations and connections. Not getting it can lead to bankruptcy and some nasty time in court. It costs you nothing to ask and it's really just common consideration. As I said in the last post, don't be evil.

UPDATE 3/22/08:

Someone in my book arts group responded to this post with the following:

If you are rebinding a book with your own, original cover artwork, but leaving
all of the pages that have any printing on them intact and in order, this is
technically not a derivative work and technically subject to the right of
sale . . .

Not true. Right of first sale applies to used books only. Anything rebound and sold as an artwork is a derivative work; it derives from the original text by using it in the rebound book. Here's the definition of a derivative work direct from the government copyright site:

A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law.

To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable. [my emphasis]

By simply adding a new cover (changing the format) without changing the contents (the text) you are creating a derivative work. Your cover alone is not a substantial amount of "new work" and thus is not copyrightable as your original work, because you're including someone else's text that is already copyrighted. Let me say this again:

Just buying the book does not mean you have bought the copyright, anymore than buying a copy of a movie DVD means you can re-edit and broadcast that movie (remember those FBI warnings at the beginning? Read them next time. In detail.) You may be a fabulously creative, original bookbinder, but your cover does not in any way substantially alter the contents (which is, after all, the main part of the book), and the book you produce is therefore derivative. You can't just appropriate someone else's text to bind without permission, whether you bought the book or not. Sure you can resell your previously owned used book. What you can't claim is that your covers make it a new work of art. They don't. You only own the book, not the copyright.

Why is this so hard? All you need is permission. Just. Freaking. Ask.

Part I  Part II Part III

Use Your Hands

-Paul Rand, American Graphic Designer

Even if you don't know (or care) who he is, or what he did, he's right. Nothing substitutes for what you can create by hand, not even your best Photoshop.

[From Book Design Review, and the new book about Rand]

Eat for Charity

This isn't a food blog, by any means, but I do love it when two of my passions collide and even better, when they support each other. And it's so much less work to eat for charity than those walk-a-thons and 10 K runs. If you'd like to do well by doing good in a completely painless way, go to the Mermaid Inn on Sunday night and order a meal. That's it. 5% of the Mermaid's Sunday night take goes to the micro-finance organization Kiva.org. When loans are repaid, the money is reinvested. Kiva.org supports many kinds of entrepreneurial projects, including handicrafts, in developing countries, so you're supporting your fellow crafters as well as getting absolutely one of the best seafood meals in the city. What's not to love?

And how's the food? While I am by no means an expert on the New England lobster roll (it's all fresh water where I come from), the one at the Mermaid is heavenly. The other night, Helen and I had possibly the best piece of salmon I've ever had, with a creamy fig risotto. The teeny cup of chocolate pudding that's your only choice of desert is just right. And the little fortune-telling fish you get at the end are pretty funny too. The beer list is heavy on New England microbrews (I usually go for the Fisherman's Tale). The service is expert and friendly, the atmosphere is casual (think slightly overgrown clam shack), and the food, even if it's not fish, is great (roasted pear and arugula salad with toasted almond slivers and tiny globes of goat cheese: yum!).

[Thanks to Manhattan Users Guide for the heads-up.]

Type!

I've been slowly collecting letterpress blocks from ebay for future projects, and I've gotten quite a nice little collection that will eventually be used for broadsheets, books, postcards and such. But I hadn't actually bought any type until recently. I hadn't planned on buying any type for a couple of reasons: (1) I have no place to store it, really; (2) I don't actually have a press yet; (3) the darn stuff is expensive.

Well, I overcame the first two objections when I came across a California drawer full of 36 pt. Bodoni Light, U&lc for (ready? Wait for it) . . . $26.00! That was way too good to pass up, even if it turned out the type was in bad shape; I'd still have a nice printer's drawer then, and they're not cheap either. Of course, the shipping was another $36, but even then, it's a steal. Well, it arrived today, and of course the contents have shifted a bit in the shipping. But both the type and the drawer actually seems to be in pretty good shape. Of course the only way to really tell is to print with it, but it'll be a while before I can do that.

In the meanwhile, it needs sorting. I'll need to teach myself the case layout again because I've totally forgotten what I learned in my last letterpress class, so I printed out a California case diagram I found here. That'll be a good project to procrastinate something else with. The next question is, where am I gonna put it?! I suspect it will live under my bed for a while, with a piece of cardboard taped to the top.

Book Arts & Copyright, Part III: Don't Be Evil

Wow, parts I and II of this unintentional series have really created a shitstorm of discussion and some nice, supportive emails. I'm not so surprised by the rampant misconceptions of who owns what and for how long, because that's what intellectual property lawyers thrive on, that confusion. I am surprised, though I shouldn't be, at how affronted people are by the notion that they can't use anything they want for free, and by the pretzel logic they will go through to justify their piracy. Despite further explication and lively discussion, some folks still do not get it. Repeat after me, people: there is no such thing as a free lunch. Using someone else's work in your own, altered or unaltered, without their permission, is piracy, and not the fun and amusing Cap'n Jack Sparrow type, either.

By piracy, I mean taking someone else's artwork—video, music, digital images, written work, what have you—and repurposing it without significant transformation of some kind (and this can be a very grey area) in a work of one's own, without paying for it. Music piracy has been going on for a long time, since the advent of cheap recording equipment (i.e., cassette decks). We've all made mix tapes for our friends. It was and still is a great viral marketing tool. The music industry didn't much like it, but they let it pass until it went digital on the Web. Then there was much stinkage about sharing files. We all pretty much know how this turned out: there was a lot of scuffling and locking of digital files at first, but now the music business is being slowly deconstructed from its behemoth incarnation back into a mixture of independents, virtual music stores, and restriction-free downloads that once again allow us to make mix tapes for our friends and virally market our favorite music.

Even so, you cannot put that piece of music back up for sale on the Intertubz and say it's your original work, even if you remix it (what's called a derivative work; more on this later). You still have to get permission to sell it legally, or even to put it out in public. You can sample or remix to your heart's content at home; you just can't sell it, or make it publicly accessible, or even share it with your friends, legally. And some artists are touchier than others about having their work sampled or remixed. For you to share it or make a profit legally, you must have permission from the copyright holder, in this case, either the artist, songwriter, or recording company.

The same fight is shaping up with digital video files now, but it'll be a longer and more bitter battle with Hollywood, probably. Although segments of the market, like The Daily Show, understand that having bits of your show turn up on YouTube is actually free marketing, other parts of the TV and movie biz are so afraid of not being able to squeeze the last nickel out of the product that they'll send cease-and-desist letters threatening huge fines and perpetual banishment from the Intertubz for downloading one captured episode. (True story. Happened to the under-aged daughter of a friend of mine with an episode of Crossing Jordan. NBC came down like the Hammer of God. And that was just for her personal use.)

There's nothing comparable to this situation with digital images or the printed word. Nobody makes "mix tapes" of their favorite photos or books. The most we do online (usually) is post pictures of each other's work to say "hey! Look at this! Isn't it cool?" That's a sort of viral marketing in itself, the Web being what it is. But writers and visual artists have a hard time getting their work out to the public without completely losing control of it, thanks to the mistaken idea that "if it's on the Internet, it's free." This is where copyright comes in. It's the only protection individual writers and artists have to fall back on when someone tries to pass the writer's or artist's work off as their own, or reuse it some way that the artist or writer doesn't approve of or agree to.

Here we get into that sticky area of sharing, which muddies the waters of copyright so confusingly. As this blog has changed its focus to book and paper arts, I've made a concerted effort to find some of the artists who are doing really innovative work and share some of it here. Generally, I'll chose a couple of photos from their site and post them with a blog entry that includes links back to their various sites, blog, artist's website, or their gallery's website. Have I asked permission to do so? No, though technically I should. This happens all the time on the Web, which doesn't excuse it. So far, I've had no complaints from anyone I've featured and some very nice thank-you's for the free marketing. This is the trade-off. Since my blog material is under my copyright, legally, I should get permission to use other people's images on it. But the Internet can reach so many more people than any other medium, based on the number of links you have, that many if not most folks let that fact slip by in exchange for free publicity. It benefits me by driving traffic to my site, and it benefits the people whose work I feature the same way. Nobody gets any monetary compensation except, possibly, the artist, through new buyers who may have seen the work on my site.

(Ironically, this very post has been pirated by a Blogger blog called Things Joie Will Do Before Dying. I presume one of those things will be "get sued by a copyright holder" as the whole site is pirated content. I'm filing a DMCA violation letter with Google, who owns Blogger, and flagging that blog. Why? Because they didn't ask to use it and they're just lifting it wholesale, without adding or changing anything. If they had asked, I would in all likelihood have said, "Delighted! Thanks for the link!" But they didn't ask. That's just rude.)

Peacay, who runs Bibliodyssey, and I had an email exchange about just this after the first part of this series was posted. His blog features images from library collections all over the world, although most of them are out of copyright, they are owned by institutions which usually require a payment for their use (this is often a processing fee to cover the cost of scanning into high-resolution files or for conserving the books themselves). Like me, he doesn't worry much about people coming after him for posting their images. Libraries are the original bastions of the notion that "information wants to be free," and most have neither the inclination nor the time to search out every "unauthorized" use of images from their collection. They know it's free publicity and hope it will drive users to their virtual and literal doors. The lawyers would say "go after both of them," probably; the institutions, perhaps, would see a greater good and decline to feel (in legalese) "injured," especially since there's no profit involved.

But when Bibliodyssey became a book, that was a different matter. Permissions were obtained all around. Why? Copyright is all about money, folks. Neither Peacay nor I profit from our blogs, except in intangible ways (notoriety) so nobody feels particularly threatened or injured by our use of images. The web is free, aside from your ISP and domain registration fees. The sole reason publishers make books is to make money (that's a whole different blog post right there). Legally and practically, some of that money must trickle down to the artists who make the contents (who have to eat, too), their executors, or the repositories of that contents, and this is why permissions cost money. Fortunately, publishers are pretty skilled at getting permissions for reproduction, and will foot a lot of the bill for it. If you're reproducing or using someone's work in your own, you need to foot that bill too. In effect, you're the publisher. If you're going to use other people's creative work in your own, be responsible and act like a professional.

(Coincidentally, there's a piece in the New York Times Magazine "The Ethicist" column that addresses the uploading of a still-copyrighted but out-of-print book. I like Randy Cohen's take on the law, and the author's ultimate attitude to an act that is also piracy. This is why it pays to ask. Not everyone says no or wants money. Unless you're asking Harlan Ellison.)

Some people in the comments to the original post are under the impression that buying the book allows you to do whatever you please with it, as though it were scrapbook materials you buy at Michaels. Not true. When you buy a book, you still do not own the copyright (How could you? Then everyone who bought the book would own the copyright). By purchasing the book, you have only purchased the right to read the book, lend it to your friends, rebind it for yourself (i.e., repair it or fancy it up), give it to a library (who may rebind it and lend it out to patrons for free; no profit there), burn or otherwise mangle it (not for profit), throw it away, or resell it to a used bookstore or other purchaser as is (and usually for much less than you originally paid for it). You have not purchased the right to use the text between the two covers, or the design of those two covers for your own product, to sell to others for a profit. That means that even if you take the book apart and rebind it between covers of your own design and then offer it for sale, without their express permission, you are violating the author's copyright.

But it's your design and work, you say. Well, no, it's not, not entirely. You've created what's called a derivative work, i.e., based on the original. The covers are your design, but someone designed the layout of that book and chose the typeface, and that someone wasn't you. More importantly, someone else slogged many years over the choice and arrangement of those words that were then bought, edited, and typeset. Moreover, the book as published is a package, all of it protected by copyright. There are a number of very talented book cover design artists who would gladly skin you alive for using their designs without permission, with or without credit, for anything other than the wrapping the book they designed them for. The derivative work thing is really not that complicated. If you are only altering something, that's a derived work, and you still need permission (unless, as with many altered books, it's already out of copyright). The amount of alteration plays some role, but it's a really gray area I'd stay out of, if I were you. Just bite the bullet and get permission, or make sure its copyright-free.

In case it's still not clear what a derivative work is, here's what the U.S. Copyright Office has to say about it, and the issue of transformation of the original, as well:

A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.

Note that "[o]nly the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author." If you do not own the copyright, hands off, without permission.

Here's a more obvious, real-life example from a blogger who linked to Part I of this series. She's a designer and artisan of children's decorative objects and seems to have a pretty profitable business selling through several vendors. Her designs were first lifted whole cloth by another "entrepreneur" who claimed she could paint anything like the examples she'd lifted from other artists. What happened is not a pretty story, and neither is the followup investigation. The problem for the original artist is not just lost sales. It's lost time chasing pirates down, time that could be used in the studio. It's also what marketers call "brand dilution" (even if you don't have a registered brand) if someone is copying you, or reusing your work. What's real, what's Memorex? But mostly, it's stealing money out of the legitimate, creative artist's pocket.

This is also a good time to remember the Golden Rule: Do unto others as you would have them do unto you. I doubt very much that most of us would appreciate someone else making money off of our own work. Quite frankly, if you're not creative enough to make your own designs without exploiting other people's creativity, you need a new hobby.

If you're still unsure about this copyright thing, Brad Templeton (founder of ClariNet, the first and one of the largest on-line newspapers) has two great pieces on copyright: 10 Myths (really 11) About and A Brief Intro. Please memorize these. They will save you a world of hurt.