softowl:

All right, I have received permission to post these pictures.  Thanks to the person at Anime North who sent me these.

This was the booth in question.  As you can see they were selling ugly, poorly made HS bootleg items, plus lots of others (Adventure Time, etc).

Let me be really clear here: I don’t like it when people sell their fanart prints or handmade fan items, but I can understand.  This, however, is an act of pure scumbaggery.

This is apparently the “company” selling these items.  I urge everyone out there not to buy from them at any convention they may attend, and to ask others to do the same.  Don’t support thieves.  

I wanted to reblog this as a follow-up to my previous signal boost, seeing as though the offending vendor has been identified, along with some supplemental discussion inspired by related posts. I’m sorry I can’t hide this wall of text under a Read More tag, but this is an image post and thems the breaks.

Distribution Rights

Most everyone who follows me has likely read my post on US copyright law with regards to creative intellectual property.

While things like fanart and cosplay are difficult to pass definitive judgment on for a variety of reasons, copyright law is crystal clear on the distribution of the original property itself. By law, the creator of the content is the only entity who can distribute said content in any way, shape, or form.

The creator doesn’t have to make some sort of public statement forbidding this kind of activity. This isn’t an “I can do it unless I’m told not to” scenario. Their content is automatically protected by copyright law the moment it appears in a fixed medium. It’s theirs. Forever. Unless they license, sell, or give away said rights.

The products above don’t even fit a single criterion of the Fair Use clause. The images on the products were lifted directly from the comic itself, put on mass-produced items almost completely unaltered, and are being distributed for commercial purposes. The audacity is pretty astounding.

(Incidentally, this is also largely what is wrong with scraping/content aggregation apps and sites, even the free ones. Unless those responsible for offering these services received explicit permission from the artists whose work they feature ahead of time, they are violating the artists’ exclusive right to the distribution of their content.)

Fair Use (Within the Comic)

I can’t count how many times Andrew has been “called out” for copyright infringement of his own, both with regards to images used within the comic, as well as songs released on official albums. I can’t blame those who are unacquainted with copyright law for being genuinely confused, and genuinely wanting to know why “x” is wrong but “y” is okay.

Online, the comic falls into the same nebulous grey area all photomanipulations, collages, and otherwise altered imagery and content fall under. Since the images themselves didn’t appear on any commercial products, it would have been difficult to argue the legitimacy of their use. I mean, you could do it, but that would be taking most blogs, galleries, forums, news/media sources, and search engines to task as well.

Which people still do, I guess, but that treads dangerously close to the same line of thinking that brought about policy proposals such as SOPA and PIPA. You have to temper this kind of legal interpretation with the concepts promoted by the Fair Use clause, which takes into consideration the nature of the derivative work, its purpose, and its impact on the source.

That being said, Fair Use will always, always be a confusing grey area. It is vague in its guidelines because it is a subjective concept that, from a legal standpoint, can only be decided on a case-by-case basis. In court. That being said, the closest you can get to such a determination without actually having to be taken to court is through legal advisement. From a lawyer.

Which they have.

As a reminder, licenses were purchased by Andrew for the tracks that covered existing songs. They are strictly on the up-and-up. They have also consulted with their legal adviser on the subject of printing and selling the comic, which contains digitally altered photographs, celebrity likenesses, and brand names. As such, it can be safely assumed the books are on the up-and-up as well.

I could go into the minutia of how each celebrity/brand representation constitutes parody, and how the photographs pulled from the internet are edited to the extent that the substantiality of the original content is likely negligible, not even taking into consideration the fact that they may be available for such use through creative commons or public domain, and how photography is probably the most legally confusing form of art because copyrighted and privately owned content is photographed all the time SO WHO REALLY OWNS THE RIGHTS TO IMAGES CAPTURED BY A CAMERA?? but A) it’s not my comic, so I don’t know the particulars of every image used and B) I’m not a lawyer, nor have I spoken to theirs, so I could speculate all I want but it would all be legally and objectively irrelevant!

Nonprofit vs Non-Commercial vs Free

There has also been, and continues to be, confusion on the matter of what counts as “selling” products based on copyrighted property. Not making a profit on an item you have sold, i.e., selling something at the cost of materials, does not have anything to do with being nonprofit, which refers to charitable and educational services, nor is it non-commercial, which refers to the use of something in a way that explicitly does not involve commerce (often in the context of a nonprofit).

The minute money or its equivalent is exchanged, the use becomes commercial. Notice my inclusion of “or its equivalent”; the exchange of a service for a service (say, an art trade) or any other sort of bartering (services for items, items for other items) falls under the definition of commerce.

Free is the only free, but even that comes with legal restrictions. As another tumblr user aptly put it:

…if you don’t have a license that explicitly permits noncommercial usage, it is not even legal to give something away for free if it’s covered by someone else’s copyright. Music piracy is the obvious example. You’re not gonna make money uploading your Beatles albums to The Pirate Bay, but it’s still illegal without explicit permission from the Beatles.

To be fair, in this context, most creators are about as equally concerned with the private bartering of fan-made items and private art commissions as they are with fanart itself, but it all comes down to the point I made at the beginning of my post, which is the exclusive right of the creator to control the distribution of their intellectual property.

If you’re not sure they’re okay with it, ask before you do it. If they say no, don’t do it.

It’s not personal, it’s their right.