theartofmichaelwhelan:

Blurring the line of copyright infringement?

I’ve spent the last week dealing with Etsy shop owners (among others) using the symbol Michael Whelan created for THE DARK TOWER: KA pictured above. At times, it has been a surreal experience and perhaps that’s why it makes for a great teaching moment.

Origin of the symbol

Most shop owners don’t understand where the KA symbol came from in the first place. The symbol, of course, was first seen in the Donald M. Grant hardcover editions of THE DARK TOWER (book 7) written by Stephen King.

Michael rendered the stylized letters K and A inside an uneven circle set on an abstract red background. The image was ultimately printed in black and white as interior illustration. (Page 326 in the DMG Artist Edition)

If you look at the front of the book, the copyright statement is clear. Illustrations © 2004 by Michael Whelan. So why all the confusion?

From fan art to copyright infringement

Somewhere along the line, a fan reproduced the symbol and began sharing it. Others embellished on it, adding a bird or a 19 to the design. But it’s all the same symbol despite the variations.

Intellectual ownership was confused by lack of artist attributions, which is all too common on the internet. That’s why we discourage alteration of Michael’s images and insist on credit when his art is posted under fair use. Despite our best efforts, the symbol keeps appearing on merchandise (t-shirts, mugs, decals).

Believe me, I understand the draw of merchandising in fandom. KA is a powerful symbol, a visual shortcut to a great series of books. The problem is that none of this usage was authorized or licensed by the artist.

Obscurring ownership doesn’t change ownership

The funny thing is a lot of shop owners think the KA symbol was created by Stephen King. Even if that were the case, wouldn’t King hold the copyright? Why does this somehow make it okay to exploit the symbol for commercial use? It makes no sense, but that’s how many respond to takedown requests, with rationalizations intended to obscure ownership of the image. Because without clear ownership, they can do whatever they want, right?

I’m sure some do it to cover up their ignorance regarding copyright while others cling to any excuse to continue profiting off off something they didn’t create. In the end, it’s all still a violation of copyright.

Substantial similarity

But what if I hand draw the symbol? What if I make alterations to the design? What if I change the color?

I kid you not, I’ve heard all of these questions from sellers trying to drag out their unlicensed use the image.

There are great resources out there on copyright. I found this article from the Graphic Designer’s Guild which I find useful in defining “substantial similarity” which is what we’re talking about here.

No, it’s not okay to copy an artist, whether you’re tracing or blatantly ripping off the idea behind the work. Copyright covers both the concept and the rendering of the art.

When an artist notifies you of copyright infringement, just stop. Take the product down.

So who is to blame? The seller of the platform?

To be clear, the immediate legal burden falls on the seller. By declaring they have a right to reproduce the image—which pretty much every site on the planet requires—the seller assumes responsibility.

The problem is there are never consequences in place to stop them from lying. But threats abound for filing false copyright complaints. Ironic, huh?

Most commercial platforms skirt liability with legal boilerplate. Check this box to state you own the image. Worse, they shift the burden both ways, first to the seller then to the owner of the image by requiring artists to file complaints to defend their work, a complicated process that further eats away at the artist’s time, adding insult to injury.

And then what? Artists wait for days, sometimes even weeks to have unlicensed work pulled down. More often than not, the ads and products go right back up in an act of willful infringement.

It takes a ridiculous amount of time and energy to get the platform to do anything about repetitious infringement, but clearly it’s their responsibility once the issue is reported.

Social media sites have to do better at this.

Clearly Facebook knows they have a problem with fan pages violating copyright for commercial gain. By taking ad money, they have a clear legal responsibility to penalize users who abuse their platform, right? RIGHT?!? So why is it so easy to run those ads again?

Commerce platforms and on-demand printers have an even greater legal responsibility. They MUST find better ways to penalize shop owners who violate terms of service and intellectual property policies.

Simpy taking products down doesn’t make the issue right with the owner of the image. The offending party likely has been paid while the artist is out time and energy that could have been better spent creatively.

Protect artists’ time and energy

That’s essentially is what this is about. We want artists to create work that we love. So lets stop stressing them out tracking down theft of their work. Lets make the system work for them instead of penalizing them for creating something.