Livejournal - Not the biggest fan of the detournment, as Christopher Bird finds out. The following is from a notification he was sent by Livejournal themselves:
Dear LiveJournal user mightygodking,
We have received a report, properly formatted under the provisions set forth by United States law, indicating that the images located on your community [http://i24.photobucket.com/albums/c24/improvedarchie/archiepage.jpg] and [http://i24.photobucket.com/albums/c24/improvedarchie/ia_banner.jpg] violate the copyright of another. As such, we hereby direct you to delete those images from the community profile and cease using the material on LiveJournal as soon as possible, but no later than 12:01 AM EDT, May 12, 2007, to avoid further action against your account.
If you feel that this report is in error or that your use of the material falls under one of the categories permitted under copyright law, you are entitled to file a counter-notification, also under the provisions of US law; please contact us for information on how to do this. Filing a counter-notification indicates that you are willing to defend yourself in court against a charge of copyright infringement, and you may be bound by civil and possibly criminal penalties if you are found liable.
Bird adds:
Now, my personal - and not entirely uneducated, but admittedly inexpert - opinion is that Improved Archie falls quite explicitly under fair use, since I’m not using the material for economic gain and furthermore that the nature of the work is transformative as a parody of the original.
Legal eagles and those who can get LJ to back off - To the comments thread to help educate me on this whole situation, please.
May 9th, 2007 at 9:38 am
Is he just taking their art and changing the words? If so, that’s a problem. Parody protects new works that reference something, it doesn’t protect directly taking someone else’s work.
May 9th, 2007 at 9:43 am
Actually being in the legal right isn’t going to help him when dealing with LJ Abuse. Hell, having the head of freaking company doesn’t always help when dealing with LJ Abuse…
May 9th, 2007 at 10:41 am
I assume we’re talking about this stuff: http://community.livejournal.com/improved_archie/
What he’s doing here is reproducing panels from Archie comics, blanking out the dialogue, and holding a caption competition. Now, I’m not going to venture an opinion on the content of American intellectual property law, but if that falls within the parody defence, then American law is generous indeed.
May 9th, 2007 at 11:25 am
Well, it is a parody - parody is NOT merely “new works that reference something”; to paraphrase the Supreme Court, parody is appropriating some part of someone else’s work in order to give them the business.
So, yeah, this looks like parody. That does not necessarily mean it’s copyright “fair use” - he’s reproduced an entire picture, and the only change is new dialogue. That’s a long stretch to get to a “transformative” use.
However, as I understand DMCA takedown notice law, he can rebut with a note to LJ saying “I think this is fair use,” and then the copyright owners have to take the next step. EFF.org should have some info on that.
May 9th, 2007 at 12:31 pm
But surely it can only even arguably become a parody at the moment the suggested dialogue is posted. A panel with blanked captions isn’t a parody of anything. So we’re saying that the panels RETROACTIVELY become parodies when somebody posts a comment?
I’m not saying it’s impossible, but… well, like I say, it’d have to be a generous law.
May 9th, 2007 at 2:02 pm
Fair use in the United States is reviewed under the following criteria:
1.) Whether the use is commercial, intended for educational purposes, or neither. Now, obviously IA isn’t educational (unless you did not previously know of the existence of the word “fuck”), but it’s also pretty explicitly non-commercial, considering that at present (and for the foreseeable future) I’ve made absolutely no money off it, and that it’s in fact cost me money to continue operating (IE, a paid photo hosting account to handle storage).
I would argue that IA falls under the “comment and criticism” provision of fair use, not unlike 2 Live Crew’s (successful) use of that defense when the Roy Orbison estate sued them for their dirty rap parody version of “Pretty Woman.” Much of the comic value of IA is direct commentary on the Archie mythos itself, which is the most basic definition of fair use. (That is to say that traditionally parody is more easily protected under fair use than satire is. IA falls into both categories thanks to the multiple-entry nature of the work.)
2.) Nature of the copyrighted work. This one’s not really applicable.
3.) Amount and substantiality - namely, how much of the original work has been imported into the new work. I consider this one particularly important because on a case-by-case basis, one panel or a cover from an Archie comic is, at most, less than five percent of the total comic (in the case of a cover; in the case of single panels, it’s more like one percent). If instead we eschew the case-by-case basis and look at Archie Publications’ entire publishing history versus what IA has selectively used from it, the amount of work used is negligible.
(This may sound silly, but the fact that the panels are resized in Photoshop is itself considered potentially transformative, and arguments along that line have been used in successful fair use defenses in the past.)
4.) Effect upon original work’s value. You could feasibly argue that IA detracts from Archie’s wholesome image, but IA targets a different demographic than Archie does (there are not a lot of 6-12 year old kids reading IA), does not attempt to fill the same need and I think it’s safe to say from its Technorati ranking alone that it’s pretty goddamned marginal. It has a small community of people - most of whom were former Archie fans as children, I would note - who enjoy taking the piss out of something they enjoyed as kids, and the supposition that IA serves as a replacement for actual Archie comics is pretty laughable.
That’s my two cents on it for the time being.
May 9th, 2007 at 6:34 pm
Point 3 is an interesting one, because it begs the question of what the copyright work actually is. In the UK, there is rather emphatic authority for the view that each panel is a copyright work in its own right.
May 9th, 2007 at 11:43 pm
Well, point 4 is theoretically the “most important” criterion for consideration - per the Supreme Court in the 2 Live Crew decision. But they also specifically said that “effect on market demand” is NOT the effect of scathing criticism. So making Archie look like a putz has no measurable “market demand” in an infringement analysis. I think you are right that the theoretical “market effect” here is negligible.
In the US Copyright Office, the “work” is not just the panel - it is the book, or the series, or the volume, or whatever (I looked at the cards for Marvel registrations from the 1970s, and they were for entire volumes, I believe - the Office allows registration for periodicals, and that’s what Marvel is doing; Archie too, I would guess).
(Interestingly, I’m having a hard time think of a copyright precedent where a comic book company was the plaintiff, to determine what the “work” was - all I’m coming up with is the Edgar Winter case, and the Superboy case, and the Gaiman/McFarlane case).
At any rate, while you (Chris Bird) are right that you have a reasonable argument for a legitimate “fair use” purpose, I still think the argument is tough to make on the amount issue. Look at almost any decision involving Jeff Koons - courts are pretty tough on allegedly fair uses that take an “entire” still picture.
I would like to point out two things: I think it’s kind of neat to have fellows from the UK and Canada weighing in on the issue (from someone generally only exposed to the US perspective); AND I still think this is a straight-forward DMCA “take-down” question, and the answer here has less to do with articulating a thorough “fair use” argument and more to do with meeting the DMCA requirements to rebut the takedown notice.
May 10th, 2007 at 5:22 am
Well, just because something was registered doesn’t necessarily make it valid; invalid patents are registered all the time. But it depends on the terms of the relevant statute and what it defines as a copyrightable work.
The problem in the UK is that comics seem to fall between the gaps of the various categories. The Court of Appeal addressed this, in passing, in Nova v Mazooma in March - http://www.bailii.org/ew/cases/EWCA/Civ/2007/219.html - at para 16:-
“‘Graphic work’ is defined as including all the types of thing specified in s4(2) [of the Copyright, Designs & Patents Act 1988] which all have this in common, namely that they are static, non-moving. A series of drawings is a series of graphic works, not a single graphic work in itself. No-one would say that the copyright in a single drawing of Felix the Cat is infringed by a drawing of Donald Duck. A series of cartoon frames showing Felix running over a cliff edge into space, looking down and only then falling would not be infringed by a similar set of frames depicting Donald doing the same thing…”
Pretty emphatic - but (i) it’s not strictly binding because it’s an observation rather than part of the decision, and (ii) it doesn’t directly address the question of whether a comic might somehow squeeze into the category of miscellaneous artistic works (although the clear indication is no, because if the whole came back in under a different category, it would negative the point that the court is trying to make).
I looked this up in the leading UK textbooks when the case came out, and the status of comics in UK copyright law does indeed seem to be extremely hazy. Obviously it’s illegal to copy the whole comic because in that case, whether the “work” is the whole comic or the individual panels, you’re still copying it. Tentatively, it’s also probably a copyright infringement to copy the text.
But what if you steal the PLOT? There seems to be a credible argument, in theory, that the plot of a comic is not protected by UK copyright law - although I suspect that, if presented with a sufficiently blatant case, the courts would find a way to provide a remedy. (An obvious approach would be to argue that the plagiarist was indirectly copying the plot/script - which is a literary work, and therefore has copyright of its own, just like a screenplay.)
May 10th, 2007 at 8:37 am
Point 3 is an interesting one, because it begs the question of what the copyright work actually is. In the UK, there is rather emphatic authority for the view that each panel is a copyright work in its own right.
Erm, Paul. You post full covers on your X-Axis website. Similarly many other review or comment sites post pages or panels from comic books (this newsarama blog does, for instance). Does that mean both you and they are breaking the copyright law?
May 10th, 2007 at 9:54 am
Just because something was registered doesn’t necessarily make it valid; invalid patents are registered all the time.
True enough; but the Copyright Office is a little more discriminating about what they actually register - in part because they receive fewer applications than the Patent Office by an order of magnitude. They will deny registrations from time to time - but they usually don’t need to (usually it would just be a matter of extent of protection).
And whatever the registration says, you’re right that it’s pretty much a judicial decision about how much of the periodical constitutes any single “work.” (The dicta from Mazooma doesn’t show up in US decisions on a cursory caselaw search).
In addition, I remembered the gist of Gaiman v. McFarlane and went back and looked at DeCarlo v. Archie Comics - both of which centered on ownership of characters. I think it’s arguable that Improved Archie also represents an appropriation of the Archie and Jughead characters, quite apart from the matter of artwork (in the series or in the panel).
Finally, while I don’t know the state of the law in the UK, the cover posting would be a pretty good fair use argument under US law specifically because reviews count as “comment or criticism.” It looks like that would qualify as “fair dealing” - or not?
May 10th, 2007 at 11:59 am
“Does that mean both you and they are breaking the copyright law?”
Nope, because it’s an image of the subject of the review, and fair dealing for the purposes of criticism and review is expressly permitted by law. (Section 30 of the 1988 Act and Article 5 of the Copyright Directive, from a UK standpoint.)