Who's going to win? Fan Art Copyright court case over reference photo

[davidhohn]

@agan What part of the video you linked do you feel applies to this conversation?

I ask because I got about 15 min into the 55 min video. Biana Bova seems to be focusing on tracing as a teaching tool -- which is fine and no one would take issue with from a copyright POV.

I did continue watching but skipped around. As I watched I realized early on she is misinformed about a number of legal issues, citing people who are not IP attorneys and muddying underlying copyright concepts.

I'm just wondering how you would feel disproportionately blamed if [you] were the tattoo artist? Do you feel that Kat Von D is being disproportionately blamed in the OP?

Does Biana Bova's tracing video get into the "art" of tracing as compared to the "act" of tracing? The distinction for me is one which involves a level of creativity (potentially copyrigtable) and one which simply transcribes the creativity of another artist.

If you can make it a bit easier on me my citing the time stamp in the video I'd be interested in viewing it. As I mentioned in my earlier post:

I will allow that there might be some aspect to tattoos that I don't fully understand that requires a level of creative choices

[davidhohn]

@NessIllustration wrote

I would imagine if you're unable to find the original owner, then you should just not use it and find something else right?

I would agree with you -- but not everyone does. And some of those "everyones" are big companies with very deep pockets.

I'll play devils advocate here and mention a situation in which finding something else isn't an option.

I don't know how many of you are aware of the Orphan Works bill that has been introduced to congress a number of times over the last 15 years.

Definitely worth educating yourself on this concept as it has the potential to alter the art community in both good and bad ways.

A shorter Communication Arts article written by Tad Crawford that highlights the problems with the previous versions of the Orphan Works bills

TLDR: There are genuine cases in which it is in the public interest to make infringing copies of films, photos, recording, and artwork because the original work is decaying and may eventually be unavailable to make a copy AND the IP holder simply can't be found. But these are very limited and specific cases.

The Orphan Works bills, as they have been previously introduced, applied a sledgehammer to a job that requires a scalpel. Previous versions of the bill would have effectively gutted the protections of copyright allowing everything to be deemed an "orphan work". I have been one of many freelance illustrators who have repeatedly written to the US Copyright Office to oppose the legislation as it was written.

BUT the problem of genuine orphan works remains, and I would expect the bill to be reintroduced in the future. Ideally it will be in the form of a very specific and limited (scalpel-like) form the problem warrants.

[agan]

@davidhohn Ooh yes I guess the parts of the video I found most relevant were from the 41 minute mark onwards, where she was talking about all the cases of photography on social media I hadn't considered before -- like when the original poster's account has been removed/privated, the original poster can't be found, the model can be identified but the photographer can't, indigenous and tribal photography where often neither the models nor the photographer can be identified, etc. I thought perhaps tattoo artists run into this a lot, and maybe that's why some of them stop trying to find sources altogether (although of course, they shouldn't). And thanks for mentioning that the poster's understanding of copyright law isn't correct in places...that's not good I really appreciate you watching the video and letting us know what you think!

And I think it's also worth noting that she mentions the reason that citing photographers seems to be so difficult on instagram is because other people don't think of some sorts of photography as "art"...so others don't cite it...and then yet others don't cite it...and so on with the vicious cycle. It's definitely a cycle I'd love to see stopped, so if cases like this Miles Davis one bring that to public attention, then that's a great result to come out of it.

Admittedly, the case of Kat Von D, like I mentioned before, is a different one, where she could have cited the photographer. The reason I empathize is because I was wondering if maybe the reason she included the original photograph in her post with the tattoo was a standard practice she had to make sure her audience knows she wasn't the originator of the tattoo art. Getting permission from the photographer, of course, would be miles better. And as I understand it from your earlier post, even just creating a tattoo straight from a photograph without permission is copyright infringement.

And that's a shame about the Orphan Works bills -- I read what you attached and that's very worrying...