"Copyright, Schmopyright"

As reported by The Daily Cartoonist here and here, Tom Batuik, creator of Funky Winkerbean, recently took legal action against a blog that was reprinting his work in violation of copyright. In reading through the coverage and some of the readers comments, I found some statements that I feel are worth examining.

First from the blogger himself:

"I'm still reeling from having the plug pulled, then was feeling great about being able to move the blog so quickly. Now I'm feeling pretty anxious. I don't have a lawyer, I (obviously) don't have a deep knowledge of copyright, and really don't need to get sued."

I have a couple of issues with this statement.

Firstly, as a Wordpress blogger, he had to agree to the Wordpress terms of use which state clearly (as do Blogger, Typepad, Youtube) that you agree only to post content to which you own the rights. Systems like Wordpress and Youtube exist to give creators of intellectual property a forum in which to present their own work. This forum is not a place in which to exhibit the work of other creators with no thought to their rights. You don't have to be a copyright genius to know that "© 2011 Batom inc. Distributed by North American Syndicate. All Rights Reserved." means the material is copyright protected. If you are not the owner of that copyright than you cannot post that material on your site without paying royalties.

There can be exceptions to this under the terms of fair use (an overview of which can be found here). It took me a mere 25 seconds of searching to find this information on wikipedia and one doesn't have to be a legal scholar to decipher the following excerpt:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.^[1]

Without any legal expertise on my part, it still seems fairly clear to me that the blog in question is in violation of 1, 3, and 4.

So my second issue with the blogger and his statements is that he did not do his homework before launching this blog, regardless of how long ago he put up his site.

My third issue is that this blog exceeded fair use by concentrating on only one comic feature (rather than several as the comics curmudgeon does) and that the blogger posted every strip every day.

Now to some of the sentiments expressed in the comment section:

"I'm not opposed to him protecting his "copyright" (whatever that is, these days, in whatever country). He is welcome to hunt down whatever non-profit websites he chooses. (In fact, I'd be curious to know whether or not he's gained MORE readers resulting from the said blog, but I suspect that it's besides (sic) the point in this instance."

Where to begin.

Firstly, the commenter does have a legitimate point in that copyright of intellectual property of all types has a major problem in the global marketplace. It is most definitely true that laws vary from country to country and that some international standardization needs to be implemented. However the comment feels fueled by the sentiment "I know I'm violating your rights but your laws have no teeth so just try and stop me!"

Which is tantamount to saying - "I know that car is yours, but there are no police around here to keep me from taking it from you - get out and give me the keys."

Secondly, the statement about more people reading the strip demonstrates a serious lack of understanding  of the economics of being a creator. So more people read the strip. So what? Are those people paying to read the strip? If not, then what good are they? Is their enjoyment of the strip being subsidized by advertising revenue on the site that could be channeled back to the creator? If not, I say again, what good is that kind of readership?

As a creator of artistic content, you can only make money a couple of ways - from people who pay you directly for your work, (yes this includes t-shirts and mugs that bear your work - even if you let folks view your strip for free) or people who pay you indirectly for your work through ad revenue or royalties or both.

And here, I'd like to take a minute to unclear the muddy waters of syndication. Syndicated artists are not paid a salary. They are only paid a portion of the revenue from sales of their work. For instance, if a newspaper pays you $10 a week (which is pretty much the average, BTW) to run your strip, the syndicate gets part of that $10 and you get part of it. What the actual rate is and what the split is varies depending on the syndicate and the size of circulation. Some syndicates do pay a minimum royalty to their creators but, trust me, this is not an amount you would like to try and live on.

From another commenter:

"You can't stop the internet. I know people are talking about "net neutrality" and "The Big 'OFF' Button" elsewhere, but the fact remains that the internet has and is still changing the way media is distributed. If Tommy thinks most people will pay DailyINK.com 20 bucks a month for access to his 'toons, he better think again. It's way too easy to get the same thing for free with very little effort."

Firstly, I love how she is on a first name basis with Mr. Batuik. John is syndicated with King and does not yet have that privilege.

And, for the record - Dailyink is $20 a year not $20 a month. And it gets you access to over 70 comics not just one. And there are no ads. And it's a great app - go here and buy it.

Also for the record, you can read any King strip for free every day at Comics Kingdom. It is free to you, the reader, because it is ad revenue supported.

Anyway, this idea that you "can't stop the internet" and therefore this kind of behavior acceptable is ludicrous. As I mentioned before, just because you can get away with jacking my car doesn't make it right. And it actually is possible to get a handle on the internet to some degree and get things back on the right track so that creators are not getting screwed six ways to Sunday.

1) Form a global committee on intellectual property rights and establish a clear set of laws that apply internationally.

2) Enforce existing copyright laws against all web hosting services. Wordpress pulled that blog down jiffy quick because A) they knew the blogger was in the wrong and B) they didn't want to get sued themselves. Take note all of you that run blogs, you will see more of this sort of thing as creators get fed up and pursue their legal rights. Your server will cave and leave you out in the snow in your underwear. Count on it.

3) All copyrighted content should be write protected in a way that it cannot be scraped without compensation. I know this can be done because, in posting images on my blogs I have already encountered files I could not copy. To make this truly workable, however, a system of compensation needs to be established. I would like to see a micropayment system - maybe linked to paypal or some other account. When you attempt to drag and drop an image, you would get a dialogue box: "This image is copyright protected. Use of the image is available to you for a fee of .03 chargeable to your paypal account. Do you accept these terms and wish to proceed?"

Sure, you will have dedicated hackers that will find a way around that, but their action will be clearly illegal, and therefore, punishable by anyone who has the resources to enforce the law.

(Disclaimer - I frequently scrape comics and photos to illustrate my blog posts. If such a system were in place, I would happily pay the fee for proper use. As it is, I am careful never to exceed the fair use terms stated above.)

My overall take on the situation is this. For the last 10 years the internet has existed in what I like to think of as its "Wild West" phase. A lot of stuff has flown under the radar. And that has given rise to the belief that copyright doesn't matter anymore.


But the winds of change are on the horizon. You will see more actions of this type as creators decide to enforce their rights. Ten years from now, there may very well be a few new sheriffs in town.