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Joined: September 26, 2009
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Fair Use
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Posted on Sat May 18, 2013 4:20 pm
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tl;dr version: What counts as fair use in art?

This topic came up the other day in regards to something Nintendo is pulling with Let's Play videos, but I think there's a universality to the question that needs to be addressed. Basically, Nintendo is saying that any money made off of LP videos belongs to them. I don't want to get into the morality of Nintendo's actions; that's a tangled web with no good way out. I also don't want to get into copyright issues, though fair use touches upon them. Copyright and fair use are two different, though certainly related, concepts.

I'm a scientist by profession, and there are certain conventions in scientific publication that I've more or less internalized. I expect that others will use my work, expand upon it, comment on it, quote it, etc. (Well, more accurately I HOPE they do so--citation is an indication that you're Doing It Right in science.) As long as they give proper credit, I'm perfectly happy to have anything I put in the public eye used. And "proper credit" depends on the context. If I'm being quoted in Paleontologica Electronica, I expect a full citation using their format. In contrast, if someone's quoting something I wrote online, a brief "According to Dinwar..." or a link to the original is sufficient.

In terms of maille, what this means is that I assume that people will use any image I post. They can post it on a forum, or a website, or wherever, and as long as they cite me as the originator and don't sell it I'm perfectly fine with it. I consider something along the lines of "Here's an example of the weave, made by Dinwar" to be a perfectly acceptable use of an image posted online.

The tricky thing is, I consider it appropriate whether the artist gives that permission or not. The reason is, art is inherently public. Artists make art to be seen, heard, or otherwise experienced. And it doesn't make sense to me to make something public, but then restrict public discussion of it. Give credit where it's due, of course, and equally obviously don't profit by someone else's work without their permission--but I can't see the rational behind presenting something to the public then saying "...but this is private."

I've talked to a few people who disagree with this stance, and I can certainly understand that my perspective is highly colored by my training in an unrelated field. So I want to ask the opinions of other artists. What do you think constitutes fair use of artwork presented to the public?

Once you present your work in a public forum, what constitutes fair use of that work? What sort of things should we expect people to do with our works, and what sort of things are unacceptable?

Joined: December 22, 2007
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Location: Hampton, Virginia USA

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Posted on Sat May 18, 2013 5:18 pm
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In order for fair use to stand up in court it must meet these standards.

1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2.The nature of the copyrighted work.
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4.The effect of the use upon the potential market for, or value of, the copyrighted work.
http://www.copyright.gov/fls/fl102.html

The problem is, you have to convince a judge that it is fair use because while you may believe you are using something fairly, if the copyright holder disagrees and takes you to court, the judge or jury will be the final decision, not you or your expensive lawyer.

Generally, the judging in fair use cases that have gone to US courts (most countries have copyright treaties with the US and follow US law) have erred on the side of the copyright owner. When cases go to court and a ruling is made, precedent has been set, and future judges read those cases to make future decisions.

- When the entire work is one picture and you have copied and used it, you have used 100% of the work. The judge won't like that.

- When they say nonprofit educational purposes, they really mean nonprofit educational purposes. If you use it in a university setting, you are almost always okay. For a book, even if it is "educational"? No, that's for profit. For a chainmaille class or for a tutorial? Probably not, especially if you are getting paid. Using it in a blog or other web-based page to "educate" people on what chainmaille is or as an example? Very unlikely to stand up in court. In fact: http://www.roniloren.com/blog/2012/7/20/bloggers-beware-you-can-get-sued-for-using-pics-on-your-blog.html

-If the picture is of chainmaille and you sell chainmaille, you are profiting from the picture. Unlikely to stand up in court. If the copyright holder of the picture sells chainmaille, you have possibly affected the potential market for, or value of the picture. That violates fair use.

Bottom line: people who take pictures they see online and use them for themselves, even with attribution are usually violating copyright. If you decide it is fair use, then be prepared to back that up to a judge in court if you get sued. Getting sued is unlikely. It's expensive and generally a pain in the ass. That's why people get away with copyright infringement. Not everyone "plays fair". Just because it is easy to copy and post someone's photograph and use it on the internet does not make it legal, ethical, moral, or respectful. If you consider yourself a good person, then don't use other people's pictures unless you have asked them for permission and received a "yes" in writing. If you don't care what kind of person you are, then you probably aren't reading this and you are going to take peoples' stuff whenever you want.

Dinwar: I respect your decision to allow people to use your pictures with attribution. I have similar feelings about my chainmaille pictures. In most cases, all you have to do is ask me first and attribute me, and I will be happy to say yes. However, each copyright holder gets to make that decision for themselves. And the only way to find out how a particular person feels about it is to contact them and ask.


"I am a leaf on the wind." ~ Wash
Lorraine's Chains
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Joined: October 22, 2010
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Posted on Sat May 18, 2013 8:04 pm
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i agree with you dinwar. i don't mind people using my pics as long as they mention me. my personal philosophies prevent me from suing anyone for any reason, so i wouldn't do anything even if they didn't mention me. i might say something about how it's disrespectful, but that's it. when it comes down to it, i know my work, i recognize it, and no one can ever take that away. even if someone steels my photos and asserts ownership, i believe this transgression will come back on the person. life has a way of evening things out. consequences always seem to be tailor made for the perpetrators of such actions.



Joined: September 26, 2009
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Posted on Sun May 19, 2013 9:20 am
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So, if I understand you correctly lorraine, the only safe route is "Don't use anything, ever".

From a legal standpoint, I can see that to some extent. From an ethical standpoint, however, I can't. If you make something public--and posting something online certainly counts--there's the assumption that you wish the public to experience it. Artworks often have some point, some message, and even if they don't criticisms of the artwork (in the sense of literary criticism, not "This is bad") certainly is a valid concept. However, if we can't present the piece in question we can't very well discuss it. Imagine discussing Bach's music but being unable to actually include pieces of that music. Similarly, discussions about maille necessarily must include images of that maille--it's the primary reference for this sort of discussion.

That was my point in saying that I expect people to copy my photos with a citation of some sort: it's not that I'm using the post to give them permission, it's that I'm used to working in a field where simply presenting the work is considered granting others permission to use it. The idea that a work can be made public, but not useable, is just weird to me. There are limits, obviously, but what those limits are is something I'm unclear on from an ethical standpoint.

Please understand, I'm not saying that you're wrong in your legal interpretation, or that people should violate copyright laws. I'm questioning the ethical underpinnings of the laws. I've never been overly concerned with legality, just with ethics (and it's worked out well--only one speeding ticket, and that was a speed trap). The information you've given is valuable, and something I've got to digest, but my initial reaction is that it's only a minor consideration. Sometimes the law is wrong--I'm a citizen of the USA, a country founded, when you get right down to it, by traitors.

And I'm also not saying we should be allowed to copy work willy-nilly. Rather, I'm questioning at what point does it cross the line. Obviously, copying someone's work without attributing it to them crosses the line. Equally obviously, copying someone's work, adding nothing of your own, and putting a citation in isn't right. However, for many pieces here there's only one photo of it--if we want to discuss the weave, we have to use the photo of it to illustrate anything we can't describe adequately. Does that count as fair use?

Joined: June 20, 2012
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Posted on Sun May 19, 2013 10:41 am
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Dinwar wrote:
So, if I understand you correctly lorraine, the only safe route is "Don't use anything, ever".

Not exactly.
The save road id "Always get the explicit, written, author's permission first, and make sure you're talking about the same thing (or don't use it)".

According US laws (see the link Lorraine gave), reproducing for criticism is most probably ok*:
"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research."

Under French law, reproducing for criticism is explicitly legal:
"When the work have been published, the author can not forbid:
[...]
a) Analysis and short citations justified by the criticism, polemic, educational, scientific or informative aspect of the work it is built-in."
(Disclaimer: I don't grant the translation to be accurate for a legal standpoint.)


By the way, I agree on your considerations.
Which is to be expected since we have a close background (i.e. scientific AND paleontology studies).

Edit: Oh, and "there is no such thing as a perfect ethical law".


* "most probably ok" means you can still get sued, but you should have some backing during the trial.

Joined: October 22, 2010
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Posted on Sun May 19, 2013 11:58 am
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Dinwar wrote:
I'm a citizen of the USA, a country founded, when you get right down to it, by traitors.


i support this statement wholeheartedly.

my philosophy adheres to a quote by emerson "no law can be sacred to me but that of my nature. the only right is what is after my constitution, the only wrong is what is against it.

the laws and morality that i live by are far more numerous and constrictive than any country or state. but, in a few exceptions, my constitution allows me to act where national and state laws forbid it.

a great example of this is when i used a photograph of my brother, (who plays professional soccer) taken by someone that takes photographs at soccer games. i used the pic because my brother wears a chainmaille aluminum and rubber captain's armband that i made for him that is featured in the pic. the person who took the pic did not give me permission to use it, but the picture was taken in a public stadium and the subject was my brother who did give me permission to post pics of him. according to the law and the rules on this site, i'm breaking copy right law by posting this pic. according to my law, i'm doing nothing wrong. since i don't adhere to any law, but that of my own making, i put myself in danger of being sued or in some cases even jailed. i wouldn't have it any other way though.



Joined: December 22, 2007
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Posted on Sun May 19, 2013 4:46 pm
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Dinwar wrote:
So, if I understand you correctly lorraine, the only safe route is "Don't use anything, ever".

I didn't even come close to saying that. But if that's what you read, then there is nothing else for me to say. Confused


"I am a leaf on the wind." ~ Wash
Lorraine's Chains
Gallery Submission Guidelines

Joined: June 19, 2010
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Re: Fair Use
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Posted on Tue May 21, 2013 9:55 pm
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Dinwar wrote:

In terms of maille, what this means is that I assume that people will use any image I post. They can post it on a forum, or a website, or wherever, and as long as they cite me as the originator and don't sell it I'm perfectly fine with it.

Would you still be perfectly fine with it if you had some major moral disagreement with the person using the image? Like, say a blogger is extremely bigoted, and they make these views clear on their blog. And then they post a picture of yours--not just link to, but actually embed the image on their page. Are you fine with your work and your name now being attached to that site?

Quote:
I consider something along the lines of "Here's an example of the weave, made by Dinwar" to be a perfectly acceptable use of an image posted online.

The tricky thing is, I consider it appropriate whether the artist gives that permission or not. The reason is, art is inherently public. Artists make art to be seen, heard, or otherwise experienced. And it doesn't make sense to me to make something public, but then restrict public discussion of it. Give credit where it's due, of course, and equally obviously don't profit by someone else's work without their permission--but I can't see the rational behind presenting something to the public then saying "...but this is private."

You're talking about copying images onto forums and websites, correct? You don't have to copy someone's picture onto your site in order to discuss it. You don't even have to copy it to make sure that the people you're talking to see it. You can just do something like this. That way the original artist is still maintaining control of their image, and you get to share it and discuss it.

Joined: January 8, 2012
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Posted on Thu May 23, 2013 2:06 am
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So I'm assuming the major issues here are with 1. photographs; and 2. exactly duplicating a project *whether or not that project is in the public domain*. But what is the overarching sentiment and/or legal standpoint about the weaves themselves? Are they considered public property because they're (generally) common knowledge? Or is it necessary to contact LadyLockeout for me to sell a Viperscale bracelet? That's what I'm confused about in the debate over fair use. Is it necessary to contact the author of a weave in order to profit off of it because it's their intellectual property? I've always assumed that if a weave was published, it was fair game for commercial use.

Joined: December 22, 2007
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Posted on Thu May 23, 2013 2:53 am
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Shine_on_girl, you cannot copyright an idea, procedure, process, system, method of operation, concept, principle, or discovery. Weaves fall into this broad category. Designs, tutorials, and photographs that you find on the internet and other places are copyrighted, with a few exceptions that rarely apply to chainmaille. Publishing something doesn't really make it "fair game" and things become public domain only under specific circumstances. But to answer your question, no you do not have to ask the submitter of a weave for permission to make it and/or sell something made with it. It's nice to mention their name if you choose to, but it's not required. So keep weaving and keep selling. Smile


"I am a leaf on the wind." ~ Wash
Lorraine's Chains
Gallery Submission Guidelines

Joined: May 07, 2008
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Posted on Thu May 23, 2013 11:06 am
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Maybe read http://zili.de/maille/tut/copyright.htm

-ZiLi-


Maille Code V2.0 T7.1 R5.6 Ep Fper MAl Ws$ Cpbsw$ G0.3-6.4 I1.0-30.0 N28.25 Ps Dacdejst Xagtw S08 Hip

Human societies are like chain mail.
A single link will be worth nothing.
A chain is of use, but will break at the weakest link.
A weak weave will have the need to replace weak links.
A strong weave will survive even with weak links included.
-'me

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