For more information on copyrights, visit:
The author of one of my favorite "Pocket Dragon fan" websites has taken issue with our request that he remove our copyrighted images from his web page. He's made his objections public on his page, went two rounds of negotiation with us, and then refused to communicate further. This is a shame because I think with more time and discussion he could have come to a clearer understanding of copyright law, and our position on the issue. As it is, he's inadvertently violated copyright law again, by posting our private correspondence (sent via email) on his page -- I'm not going to ask him to take it off, though; if he'd followed Netiquette and asked permission, I'd certainly have given it -- I just point out this second lapse to bolster my argument that, perhaps, Jack does not have a good grasp of copyright law. Few people do these days -- I pay more than average attention to it because I am a writer, and I hang out with writers -- so copyrights are a common area for discussion.
What you, gentle reader, might like to understand about our copyrights, is that everything on our website *is* copyrighted -- if not by us than by someone else (and we have both asked permission to use their work, and give them credit for it). We do put notices up everywhere it's logical to do so without marring the work itself, but even if you don't see a notice, as explained in the 10 Myths site, pretty much everything on the Net is copyrighted unless the author puts on the page that it is put in the public domain.
It would be rare for us to allow use of our work on the web, for a variety of reasons (some of which you'll read in our email to Jack, below). But if you really want to use an image, or quote a passage, please ask; we might just say yes -- though usually with some conditions applied, like full credit given and a link back to our page.
If you want to know more about the disagreement between Jack and Astral Castle, read on. You might also want to read on if you really want to know why we keep our images (and text) for ourselves. Otherwise there's not much else of interest here, and you might just want to return to the Pocket Dragon pages.
You can visit Jack's comments about us by going to his page (currently our bit is at the top) and then can see some of our email correspondence here. After the points made by us, by Jack, by us, and by Jack, Jack stated that he was no longer interested in communicating with us on the subject. Since we are most interested in coming to an amicable understanding on the matter, we have continued with a few more emails. However, since Jack isn't responding anymore we'll just post the last two here.
From: Dave Bridges, co-owner of Astral Castle
To: Jack Furlong
I know you finished your e-mail by saying you considered the matter closed, but I would like to put forth a couple of thoughts of my own first, if I may:
The way we lose out financially is that other people, particularly people placing e-bay auctions for Pocket Dragons, see the images on your site and just lift them to help them sell their stuff because they are the best images around. Our website has copyright notices, though they are not obtrusive, but we have been finding a number of people using these images who did not get them from our site. Since we are a primary and secondary retailer of Pocket Dragons, these people are competing with us, and having them use our images to sell their Pocket Dragons gives them an advantage - we had to pay to get those images and they did not. And the cost of these images is probably a lot more than most people might realise; indeed, that cost is a substantial portion of our advertising budget.
The basic disagreements we seem to have is in the nature of what is, or is not, copyrightable, and in what constitutes an infringement of copyright.
To take the second point first, a web page is normally considered, for copyright purposes, to be a publication. It does not have to be a commercial undertaking in order to either retain a copyright or to infringe upon one. Making a photocopy, for your own use, of an article found in a magazine you have bought would be considered fair use; making multiple copies and handing them out free to friends would be a breach of copyright.
The first point is the main one, though. Real Musgrave owns the copyright to his creations, and he licenses the rights to produce and distribute them to CWS, Goebel, and others, who hold various related copyrights and trademarks of their own as a consequence of this. No-one disputes the fact that Real Musgrave is the artist here.
Let's look at another artist, Leslie D'Allesandro Hawes. She makes some of her income by selling prints of her artwork. To produce these prints she takes a high-definition scan of the original and uses a laser-jet printer to create the print. If a fan, or even a retailer of her prints, took a high-definition scan of a print and published it on their web page, anyone could produce a copy themselves and only pay for the ink and paper. So she would need to step in and defend her copyright of the image. She would be unlikely to do this if the image was low quality, particularly if it promotes her as an artist to the extent that it enables her to sell more prints.
But Real works primarily as a sculptor. One cannot (yet) scan a Pocket Dragon and create a Pocket Dragon from that scan, and Real is not likely to have any desire to stop people publishing photographs of his work because it is free publicity for him.
However, because Real is a sculptor, an interpretive photograph can be taken of his work. It's like when we take our kids to the portrait studio: unless we are prepared to pay a whole lot extra for the privilege, we can not publish or otherwise make copies of any prints we get from them because the portrait studio owns the copyright on the image, even though the photographs are of our own kids.
Another simile that comes from this that helps illustrate the other point; that of our threatening or not threatening legal action against you:
Most portrait studios are small, family run, businesses. One way they could advertise is to hand out a brochure containing samples of their work centered around a theme. Supposing someone with a small press publication devoted to that theme used a few of the images as illustrations. When the portrait studio found out about this they would, assuming they realised it was an honest mistake of judgment, simply ask the publisher to stop distributing that particular issue as it contained images they did not have the rights to be using. The implication might, of course, be that if they refused to comply with the request the studio would consider taking further action, but for them to actually state the nature of that action would be both impolite and an unnecessary invitation to conflict. One might expect something like that from a large and impersonal corporation that employs its own team of legal experts who need to show they are doing their job; one would not expect it from a small business or an individual who is rather hoping to avoid anything that causes more upset than is called for.
So, yes, we do have options such as those you suggest, but we *much* prefer to start out with a request and end shortly thereafter with a "thank you" than to start out with a threat and end with no direct communication at all.
Oh well. Those were my thoughts on the subject.
From: Linda Blanchard, co-owner of Astral Castle
To: Jack Furlong
Thanks, Jack, for the links to the wonderful copyright website. I'll add a link to that source on my personal web so that I never lose it.
The site is especially helpful because in the first section, which covers what can be copyrighted, there's a very brief and clear definition here:http://www4.law.cornell.edu/uscode/17/103.html
of what I am doing with my photographs; that it is copyrightable, and that it does not infringe or affect the copyright Real (etc) hold in any way. It says:
----- BEGIN QUOTE -----
Sec. 103. - Subject matter of copyright: Compilations and derivative works
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material
----- END QUOTE -----
The photos I put on the web are all derivative and some of them are also compilations. Derivative (defined here:http://www4.law.cornell.edu/uscode/17/101.html ) covers rendering someone else's artwork in a different medium from the original work (thus my photos are derived from Real's figurines). My compilations use many derivative works showing different views.
And so this brings me to answer your question:
>Please note the following from the Cornell Legal Institute on Copyright law:
> Sec. 1302. - Designs not subject to protection
> Protection under this chapter shall not be available for a design that
> (1) not original;
>Did you originate the designs for the Pocket Dragons?
No, I did not originate the design for the Pocket Dragons, but that's not what I'm copyrighting. I'm copyrighting the *work* I did in photographing them, the way I chose the angle to have them at, the lighting, the editing of the image to make it just right.
In the same paragraph quoted above, you say:
>CWS and Real do not pursue you for infringement because they directly benefit from
you selling their merchandise
which seems to imply that you believe I have infringed on Real's and CWS's copyright by putting up photos of them -- but if I did, then you did too. And you seem to say that they have chosen not to call me on that infringement. But copyright law specifically says I can do what I am doing:
----- BEGIN QUOTE -----
In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
----- END QUOTE -----
This says that photos of a copyrighted article can be used in advertisements intended to sell the item to the public (as well as in commentaries for distribution for sale, or in news reports). So even without concerning myself with the copyright on my photos, my photos are fair use.
Next you quoted fromhttp://www.law.cornell.edu/usc/17/110.html the beginning of which said:
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers
but that's about "nondramatic literary or musical work" not about photographs, so it's not relevant.
In the section on "Fair Use":http://www4.law.cornell.edu/uscode/17/107.html
you can find that there is some support for your position:
----- BEGIN QUOTE -----
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
----- END QUOTE -----
but that statement is prefaced by the words "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - " so it's not a hard-and-fast rule but something that would have to be considered in a court of law. Item (4) on the same page, on the other hand, would go my way:
----- BEGIN QUOTE -----
the effect of the use upon the potential market for or value of the copyrighted work.
----- END QUOTE -----
I understand that you don't see how your having my images on your page has hurt us, but that doesn't mean it hasn't/doesn't hurt us. The philosophy we have taken with our pages and our photographs, is that they are worth the time and expense we go through to get them up there (both the time and expense involved being more than you might guess) -- it's worth it because our content is unique and of very high quality and will therefore help us in selling Pocket Dragons by bringing in potential customers who want to see good quality images of what these figurines look like. When our high quality content becomes ubiquitous -- you can find it on other people's websites -- rather than unique, then the value of our work is lessened -- in fact it becomes worthless for its original purpose (that of bringing us revenue due to the unique quality of the work).
Stepping away from the copyright issues entirely, let's just look at it on a personal level. Imagine that I am spending huge amounts of time and money getting these wonderful images up there just because I want to build a website that's the best there is on the subject of Pocket Dragons. Maybe it's my hobby, not my source of income, but it is a point of pride for me, how good my photographs are, how well they portray the character of these wonderful pieces. I spend a lot of my time and money on it. But then other websites start taking my pictures and putting them all over their websites. Now my website is no longer special -- everyone has the same photos. Where's the glory in what I'm doing? Why would I want to keep spending my money and my time producing something unique and wonderful if everybody's going to take the images and use them too? No, I'm probably going to just give up and stop taking those great photos and that hurts everyone -- now there will not be someone out there spending all that money and taking all the time to procure the obscure pieces and do them justice -- so now the other fans won't have someone to take photos *from* because they've taken the heart and soul of the project.
Jack, I know and recognize that you're a good person. I can clearly see that you've got your website up there for the love of Pocket Dragons, to share that with others. Any income you get from displaying advertising might help support the website -- I doubt it pays you profits against the cost of the site -- and so I never even considered that yours was a commercial site.
I realize that you used my images in the belief that you were fully in your rights to do so, and that you were even helping us out by providing the link that went with the photos.
I don't dispute any of that. Our biggest problem here is that we have a different point of view on the value of having our images up on your site. You believe it's good for us, we believe it is not. This is merely a disagreement on philosophy, and it's my contention that since your goal was to try to help us out, you should help us out by not doing what we feel is hurting us. We're in the best position, from inside our business, to actually see the effect what you do has on us. I acknowledge that you can't see things from our view -- you have to take our word for it -- and that you were doing your best from your view, and we appreciate that. But you have to trust us that in balance, what's best for us is not to have our images displayed elsewhere on the Internet.
I apologize if my first message offended you. I was trying for humorous and light but should know better, by now, that words on the screen -- having left out all the tone of voice and body language -- rarely convey accurately the mood one is trying for. Perhaps I should have realized that this could be a touchy subject and humor was not the best approach especially when I'm not particularly good at it, but there you go. I can promise that the next time I contact someone about this issue, I'll put more time and thought into that first message (doesn't help you much in retrospect, but at least you have an apology from me for it).
Anyway, the hours I've taken drafting this message should hopefully demonstrate that my intent in writing that first message to you -- and all the subsequent ones that have come from Astral Castle -- was not to end up in a court, paying lawyers, but to begin a conversation like this one where we can come to an understanding between reasonable people, all of whom have the best interests of the Whimsical World of Pocket Dragons in mind.
Our bests to you and yours,