Mea Culpa - My infringement on copyright, and reflections on it.

I was contacted by  CharlesKendrick & Company about my post showing their Montage Resort model.  They informed me that the image was copyrighted and my use was a violation.  (I should say here that they were very nice and professional about it. Thank you for that.)  I want to apologize here for the unauthorized use. 

While I link back to the artists and/or studios whenever I can, that doesn't  equate to fair use, and I completely respect an artists desire to control how their work is displayed. 

I also want to thank them for prompting me to think about this as it relates to all of my Patreon Posts.  I decided to do a little reading, as well as some reflecting on how I post images.

Before I go on however, I want to be clear that I am not making any argument regarding the use of the Montage image.  I defer to them fully on their claim of copyright.  To even get the image in the first place I had to take a screen shot since their site protects their images from being copied or downloaded.  So that's being a little sneaky and definitely underhanded on my part.   Clearly, they didn't want the images disseminated and I disregarded that.  Apologies.


But as all of you know, I always include one or more images in my posts that I haven't created.  It didn't really occur to me to consider copyright for most of them.  The images I use in the headers of my posts however, have given me pause in the past about whether it's a copyright violation.  But I do it anyway, partly since the image source is linked (that doesn't mean it's o.k.) and partly due to how I personally view copyright as an institution.

Several questions for me arose about fair use from this incident and I wanted to learn about it more to better decide how and what I post going forward.  Here is my learning - gleaned from websites rather than original legislation sources.  At the end I'll give you my personal perspective.

1.  Is Patreon a commercial site?

I don't know.  I've tried to look for information on it but can't find any.  I'll be contacting Patreon for clarification on it.  Patreon does say that creators need to adhere to copyright restrictions, but those restrictions change quite a bit if the site is considered 'commercial use'. 

I can see it being perceived that way in the sense that patrons have paid to see the restricted content I post.  However, patrons are really paying to support the continuing generation of the creator's personal content .  Most creators don't really use Patreon the way I do.  So if posts are considered commercial content, then that makes a big difference on what can and cannot be posted.  This distinction never even occurred to me before.  I'll let you know what Patreon says.  :)

2.  What's fair use?

I knew some basics of fair use law but it seemed like a good time to review it a little more.  This is the 'jist' of fair use as I read it.  Caveat Emptor.  

-- Is the use of commerical nature, criticsm, comment, reporting,  or non-profit educational purposes?

Clearly many of my posts are educational in nature - monthly columns. I also think a post with an image that say's 'Hey, check this out' with the intention of sending people to view it to further their own art via inspiration or technique falls under education, albeit loosely.    Some posts such as my reflections on Giger's work seems to fall within criticsm, albeit very loosely.  However, I'm not criticizing the art work I show itself, so that sounds like maybe a no-no.

-- The nature of the work and it's potential damage to the artist through it's use.

Here I run into more nebulous grounds and from reading, it's nebulous for lots of people.  :)  To use Giger again as an example, his estate sells images of his work and licenses use of that work for publication.  Does my use in my post impact potential revenue to the Giger estate? An argument could be made that fractions of a penny add up.

 And do I display the work in a manner that damages its artistic value?  *shrug*  That might be one for the lawyers to call.  I do my best to showcase images in their original form as I find them, but I can't claim they haven't been altered before I came across them, which could be a problem for me.  Here, the Montage image is failure on my part.  Because I couldn't get the image directly I took a screenshot and that degrades the image quality.  This clearly is a no-no.  (This actually bothered me more than you might realize.  I want good work to be shown properly, but I guess I want to show it rather than not at all. )

Very often I really search hard for the most original form of the image I can find.  I hate pintrest for this reason.  It's a bear to track down the original image when 100 people have pinned some crappy version of it.  I might try using Google Reverse Image search feature and see if that helps.)

-- The amount of the work used in relation to its whole

It's an image and it's used in whole.  There isn't really another way generally.  I didn't see a clear consensus on this issue in the articles I read  so I'm happy to disregard it until I learn more.  :)

Conclusions -

Overall, I believe my use of images in my posts are o.k. for the most part.  Assuming Patreon posts are not consider a commercial environment, my use can generally  fit into educational, commentary or criticism use.  I generally tend to think my use isn't damaging the artist or the artwork, but I acknowledge they might differ with me.

The exception to the above are the images I use in my headers.  Our puppy above is a perfect example.  It doesn't do anything for the post other than dress it up.  This is a violation of copyright as far as I can tell, and can violate it in more than one way.

One solution proffered regularly is to contact the artist for permission.  To be honest, it never occurs to me.  And to be further honest, sleuthing them down to ask would make using images so laborious as to be a non-starter.  I can't see how it can even be offered as a solution based on the current state of the web.   

(It would have been easy to ask for the Montage image however, since I invited Charles into my patron community.  But again, it just didn't occur to me.)

My personal perspecitve -

I tend to frown on most copyright claims and IP in general.  I'm an outlier on this (what's new?) so this might raise some hackles on some people.

As an artist, I find IP to be damaging to the growth of art.  Keeping secrets only slows down the evolution of the medium, what ever it might be.  While it might provide a temporary benefit for the individual, it doesn't help them in the long run.  I feel the same for images of art.  A great photograph, an amazing sculpture, or a modular board set should be free access for dissemination provided the work is not claimed by someone else, or sold as in the case of prints of a photograph.  

I do think the artist should be credited in the reproduced image, but that is more a case of class and respect rather than legal obligation.  As someone who is always digging to find who made it and is the image unaltered, that is pretty important to me.   From my experience, art imagery is generally shared to gain it exposure.  As an artist, I appreciate that and encourage it.  I want to give props where they are due, and am grateful when props are given my way.  However, I also respect artists wishes on how their art is used.  The difficulty is determining that intent in a reasonable manner.  (Again, screen shots are something I'll avoid for my posts going forward.  Intent is being made in that case.  Lesson learned.)


And I will finish with our sad puppy above.  I can't justify it's use as anything other than 'I want something nice to head my post'.  It's clearly a violation of copyright.  But after some thinking on it, I've decided I will continue the practice. 

To me, the web is entirely 'the genie is out of the bottle'.  So long as my use doesn't injure the art itself, I can set aside the argument that it is damaging the artist mainly on the grounds of the system in place or lack there of.  Should he/she be paid for it's use?  Actually, I'd be happy to pay a nominal amount to use it for my post - $.25 - .$50, maybe $1-$2 for something jazzy  for instance.  But no system exists for that currently, and finding the person to negotiate for its use is unreasonable in my opinion. 

Should the fee for it's use be $5 or similar, I wouldn't be able to afford images in my post headers.  Historically, when I have been presented with fees that are unsustainable for me I've gone underground.  Case in point - My relationship with Adobe changed a lot once they offered their suite of software for a monthly subscription I could afford.   HBONow is another.  I'm going to watch Game of Thrones.  Let me pay for it and get high quality, please!!!  Finally they privided an option.  Offer me a system to buy, and a reasonable cost, and I'm happy to purchase.  Stealing is not my default option.  :)

So I accept that I'm acting as a small criminal when I put images in the header of my posts.  I have my flaws and I don't want to hide them.  I have many other flaws as well, but I'll trickle them out over future posts. 


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