Wednesday, 5 March 2014

Anita's Fanart Tomfoolery

Well here we are again. This morning I discovered another interesting revelation regarding Tropes vs. Women when an artist became aware of the project, and discovered she had contributed to it without realizing it.

UPDATE: I'll try to link to Tammy/Cowkitty's blogposts as this develops, which will be down below. In short so far there has been a small exchange between Tammy and Feminist Frequency, hopefully they'll work things out and as such I have nothing more to contribute to this topic. Now a few weeks later, Anita has apologized (although not without once again trying to paint her detractors in the worst light possible. Apparently it's our fault that Anita didn't do the right thing earlier) and done the right thing by removing the artwork.


Anita's Fanart Tomfoolery


So this promotional image is fairly familiar by now, right? It's the banner used during the Tropes vs. Women in Video Games campaign. We've got female characters from mostly promotional material from several different video game franchises lined up to show what the project is about.



Except it turns out the image of Princess Daphne from Dragon's Lair is not imagery from the game itself or promotional material for the game, but fanart created by Cowkitty in 2009 and used without permission for a commercial project. (Original image below in the sources section)




But let's not be too hasty. For all we know Cowkitty herself might have referenced from a piece of promotional material or a scene from the game, so to be entirely sure let's do an overlay to see how similar these two images are.


That's an exact match. So not only are your YouTube Let's Plays unsafe, there will also be no hesitation if you are an artist and you have an image Sarkeesian would like to use. Our gaming ambassador, everyone!

(NOTE: the following is not legal advice. It is based on a basic understanding between IP holder and the fan community)

You might be wondering: "But it's a fanart based on a copyrighted character. The original artist doesn't own the rights to the character anyway. How is this different from any of the other characters featured in the promo image?"

That doesn't take away the work put into crafting the image and the original touches unique to the artist. Copyright law might be a gray area when it concerns fanart, but there is more to it than just who the character belongs to. As such the artist still has rights when creating an image because it's their image. Those rights don't include someone else having the permission to take the work you put online to be used in a commercial project with the artist's watermark removed (it's also simply nice to ask before you take it from Google without sourcing). 
There's also still the issue that this was a paid project. The Tropes vs Women Kickstarter had $6,000 as an original goal, $158,922 as it's ultimate budget and apparently she couldn't even be bothered to ask anyone's permission regarding the content she stole.

How long until people finally hold her accountable for these things? This isn't about trying to undermine her arguments, this is about basic things regarding her questionable ethics and practices. Everyone makes mistakes, but please at least own up to them instead of trying to sweep them under the rug. The silence regarding all of these issues is more damning than the actual controversies.


Sources

Kickstarter: Tropes vs Women in Video Games

Cowkitty
Princess Daphne Artwork (May 06, 2009)
How do I deal with my artwork being stolen? (March 05, 2014)
Twitter (March 05, 2014)
You Stole My Artwork: An Open Letter to Anita Sarkeesian (March 07, 2014)
(Update & official response) You Stole My Art: An Open Letter to Anita Sarkeesian (March 07, 2014)
(Update #3) You Stole My Artwork: An Open Letter to Anita Serkeesian - RESOLVED (March 17, 2014)

124 comments:

  1. It shit like this that just reinforces the perception that professional games journalists are hardly professional or journalists.

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    1. When they as "professional journalists" cannot find anything wrong with her but I accidentally trip over controversy all over the place? Yeah, there's no journalism going on there.

      Delete
  2. Some might shout out fair use but I believe that she can take legal action and have them remove it since it is her work regardless of it being a fanart of something else. It's being used without permission as it was pointed out and it was used to gather money.

    She should be called out on this and forced to acknowledge what's been done (although she might simply call it another conspiracy theory and an attack by the cyber mobs and misogynist to deter her. Or wave it away claiming fair use another she's just used and cheated a fellow female.)

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  3. So WHERE did that money go to?

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    Replies
    1. She used the money for her project on cyberbullying so that she can play the victim card. She's a great opportunist and took those idiots for a ride as she stole their money.

      Delete
  4. I've said once that when someone's dealing with Anita Sarkeesian, they aren't dealing with an honest person, or at the very least, someone willing to cast honesty aside for what she sees as a higher purpose, and I'll say it again here. I don't know if the original artist can actually do anything since it's fanart and I'm not totally sure of what the law says on that because of the character rights issue. Like the person before me said, the odds are pretty good that Anita will dismiss this charge as a conspiracy theory or a call to a witch hunt by the Evil Gamer Dude Cabal to put a stop to her righteous crusade while ignoring the fact that she used other people's footage and art without permission for a paid project. I don't know if Fair Use applies once you start making money off something.

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    1. Yesterday and article was released in which they interviewed her for what equipment she uses.


      ... and she's still claiming she has an entire setup from which she records her own gaming footage.

      Yeah, we aren't dealing with an honest person here.

      Delete
    2. It's actually not worth it to go to court, although Cowkitty has a strong case for plagiarization and no citation.

      If she went to court, you'd probably get a lot of idiots trying to say that Anita was using fair use.

      Here's the problem... Under the Fair Use defense, Anita was supposed to be an academic here. She doesn't really have a case for it, particularly when she still has a problem citing sources. She isn't transforming the work, she's supposed to be presenting facts.

      And the list of BS just keeps piling up as she continues to show how dishonest she is.

      Delete
    3. Frankly, the stupidest possibility is that if Anita Sarkeesian is ever truly nailed and punished under law, it may serve to raise her martyrdom in the eyes of her supporters. There are those that are willing to blind themselves that far, after all.

      Delete
    4. @Juniper Most people tend to avoid going to court. They'll go for the easy way of simply editing the work to remove the plagiarism or giving credit.

      People may cry out fair use but they are not fully aware of what it is exactly. For Anita to really avoid infringing upon it she'd have to give her dvds away. She says it's for teaching but people can argue that it's a more biased and one sided and overall lacks any credible citation for her research and work and isn't really fit to be used in an academic setting.

      But what scares me most is if she were to go to court for whatever the reason I can foresee her devote followers constructing a petition and starting a fundraiser for her court costs and lawyers. If she were to be found guilty, even with evidence proving it true if the judge were male you'd hear cries of misogyny. It's easier to blame others rather than find fault in your idols.

      Delete
    5. "For Anita to really avoid infringing upon it she'd have to give her dvds away. She says it's for teaching but people can argue that it's a more biased and one sided and overall lacks any credible citation for her research and work and isn't really fit to be used in an academic setting."

      ^Well, shit. Weren't the DVDs a backer award?

      Delete
    6. @ PadMasher:

      As Far As I Know, the DVDs were a backer reward. So technically, she was selling them, so as far as I know, Fair Use doesn't apply in that case.

      Maybe she could've commissioned a few artists with some of that $158,922 (especially since there are lots of artists soliciting commissions all the time, maybe even some who would agree with her), instead of looking for pictures on Google Images and thinking they're free to use.

      Delete
    7. @Rubyfruit

      Yeah, that's what is so fucked up about this shit. Remember those buttons with Peach and Zelda photoshopped into looking like Mario and Link? Those were backers awards too...

      Delete
    8. @Juniper @Rubyfruit

      That's not true. Commercial and non-academic usage can still be considered "fair use", it's just non-commercial and academic usage will be easier to argue. In this case the usage is for purposes of criticism and commentary which is one of the things "fair use" is supposed to protect. It is partially transformed visually by being used as part of a larger collection of tropes and in nature by being transformed from a piece of fan art to an example. It's certainly not cut and dry, but she has a decent case for fair use. The main snag I would imagine, is that it's being used in a logo/promotional materials and that it was basically copy/pasted. I don't think that's a deal breaker though as it's clearly intended to be a distillation and representation of the commentary of the work of a whole and the "transformation" factor does not have to be a literal visual change of the artwork.

      What's not excusable is the lack of social grace to provide an attribution/thanks or respond to inquiries about it, though the latter is somewhat understandable - when someone writes to you accusing you of violating the law it's not exactly a great idea to respond directly. Usually you want to contact a lawyer or something, but at least a "I'll have to look into that, thanks for your concerns" would be nice.

      FTR I've never heard of any of the parties involved until just now, so I've no horse in this race so to speak.

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    9. Regarding the comment about not going to court. I couldn't agree more with all of your points but there is one even stronger issue against the artist that will present problems and its right here in this very thread. Libel countersuit for calling her dishonest, saying she stole peoples money through kickstarter, etc.

      Delete
    10. @Anonymous

      That has no bearing. A courtroom is tedious and tends to get clustered. The court of public opinion is quite swift. Further, Anita could claim Fair Use all day, yet here, the issue is plagiarization and lack of accreditation.

      As a person who has done an academic presentation, when in doubt, cite it out.

      The problem arises in the fact that Anita has dodged all questions regarding her series and has not allowed ANY direct debate against her and when someone IS trying to contact her with an issue, Anita is caught flat-footed and unprepared for the self invoked storm against her. And as shown further down, Anita was willing to claim misogyny on a game even though it was a "transformative work" while ignoring how she used this picture in a transformative manner and won't even talk to the person in a direct manner until she is called out on this.

      And I find it questionable that you would claim libel or slander issues are in play... For slander to work, the arguments would have to not be true and Anita can prove that they were false by showing her footage used in her videos. However, the burden of proof to prove that Anita has used Let's Play footage, is intellectually dishonest, etc, has been met. It is up to Anita to prove these claims, with the bars raised, meet slanderous behavior and falsely represent her actions for the past two years.

      Delete
  5. What pisses people off the most about Anita Sarkissian is her utter refusal to ever answer her critics or offer any evidence to counter the ever-growing amount of proof that she is a fraud and a thief.

    The moment anyone brings up her opposition she dismisses it as proof of the Grand Conspiracy to silence her in her valiant quest to expose the video game industry as Ground Zero for patriarchal orpression.

    Let's see her go over to Iraq or African and try and tackle REAL issues of female oppression. Then she's have my respect.

    Hell, I'd even send flowers to her grave.

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    1. Well, in her defense, none of her supporters are asking those questions(Least not the ones she can sweep under the rug), so she has no reason TO address them.

      Delete
    2. Still, I wonder how badly she has to act before they DO complain: Does she need to preform ritualistic human sacrifice while wearing a t-shirt with cuss words on it?

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    3. CashBailey, beyond this article, care to point out some more of this "ever-growing amount of proof" you mention? Not trying to be snarky, here -- I genuinely have a hard time filtering out any of the legit, well articulated, criticism that may be out there from the pathetic "I'm gonna kill you b*** c***" rhetoric that I've most definitely observed does exist, and is also ever-growing.

      Delete
    4. "Let's see her go over to Iraq or African and try and tackle REAL issues of female oppression. Then she's have my respect."

      ^If her Twitter is to be believed, she's kinda from that region of the world in terms of heritage. Not going to bother going back through her Twitter to pick out the specific quote from her, but the point is that she has openly addressed the whole "Go to Iraq!" complaint for all to see. So if you want to know what she thinks about it, she kinda already gave an answer.

      Delete
    5. "My family is from Iraq" is all she has said. That's hardly a defense for the millions of oppressed women in the middle east. That should be obvious

      And to the anonymous post above padmasher's. It's not hard to find evidence of anita's less than scrupulous activities... If you really want to see it.

      https://www.youtube.com/watch?v=gcPIu3sDkEw
      http://victorsopinion.blogspot.ca/2013/07/anitas-sources.html
      https://www.youtube.com/watch?v=p6gLmcS3-NI
      http://www.youtube.com/watch?v=IrOMP0hJPxA

      Delete
    6. ^ they still wont count it. They never do.

      Delete
  6. CashBailey, beyond this article, care to point out some more of this "ever-growing amount of proof" you mention? Not trying to be snarky, here -- I genuinely have a hard time filtering out any of the legit, well articulated, criticism that may be out there from the pathetic "I'm gonna kill you b*** c***" rhetoric that I've most definitely observed does exist, and is also ever-growing.

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    1. "CashBailey, beyond this article, care to point out some more of this "ever-growing amount of proof" you mention? Not trying to be snarky, here -- I genuinely have a hard time filtering out any of the legit, well articulated, criticism that may be out there from the pathetic "I'm gonna kill you b*** c***" rhetoric that I've most definitely observed does exist, and is also ever-growing."

      ^Shameless Self-Promotion Time!


      http://www.youtube.com/watch?v=zsnGeFhCtVQ

      Delete
    2. Hmm, I do agree with some of what you're saying, but I also get the sense that you don't believe video games can affect behavior or even possibly incite more violent tenancies?

      Firstly let me just preface by saying I would never advocate banning violent videogames a la Jack Thompson or anything along those lines.

      However, scientific studies these days strongly suggest that violent video games DO significantly affect behavior. At some point in the past one could have rationally took a "The jury is still out on that" stance with regard to this, but I don't think it's very reasonable these days. It's tantamount to "LALALALA I'm not listening" and as gamers I think we do ourselves a disservice by not acknowledging and talking about the research that's out there. Those that haven't should do some goggling on keywords "violent video games research", etc.

      To bring it back to the topic at hand, while I may disagree with some of the generalizations made in her videos and the overall lack of rigor, I do not agree with aligning her with Jack Thompson in some type of "Empire of Evil" plot to destroy video games.

      There are indeed science based ways of looking at this stuff, and we really should be talking about that. If social science experiements are strongly suggesting that violent video games can affect behavior on a societal level, there's no reason to outright dismiss that a similar dynamic could be occurring with treatment toward women.

      But fuck yeah, citations would be nice. Just more rigor overall would be great. If the only thing that comes out of this is somebody saying "FUCK, these videos are sloppy and lack citations, I'm going to do this and do a better job", then that would be fucking great.

      Delete
    3. "However, scientific studies these days strongly suggest that violent video games DO significantly affect behavior."

      No it doesn't.

      http://www.techdirt.com/articles/20131119/03314525287/study-11k-children-video-games-probably-dont-alter-behavior.shtml

      Delete
    4. @Anon

      "Hmm, I do agree with some of what you're saying, but I also get the sense that you don't believe video games can affect behavior or even possibly incite more violent tenancies?"

      ^Yeah, because nothing logically sound has proven otherwise.


      "Firstly let me just preface by saying I would never advocate banning violent videogames a la Jack Thompson or anything along those lines."

      ^Doesn't really matter. If games actually did have an effect on people (mainly children) and made them more violent, banning violent video games or at least making it illegal for children to play them is the only real "right" thing to do subsequently. This is like saying that you don't want to ban alcohol just to go on about the negative effects of alcohol...which is why you can't drink until you're 21.


      "However, scientific studies these days strongly suggest that violent video games DO significantly affect behavior. At some point in the past one could have rationally took a "The jury is still out on that" stance with regard to this, but I don't think it's very reasonable these days. It's tantamount to "LALALALA I'm not listening" and as gamers I think we do ourselves a disservice by not acknowledging and talking about the research that's out there. Those that haven't should do some goggling on keywords "violent video games research", etc."

      ^And if they do Google search this shit, they'll see the same thing I saw. A bunch of bullshit "studies" that literally based their findings off of ridiculous shit like increased heart rates in players after playing violent video games. You need to watch this.

      https://www.youtube.com/watch?v=tS1Ys7lNXYY

      Delete
    5. @Anon

      "To bring it back to the topic at hand, while I may disagree with some of the generalizations made in her videos and the overall lack of rigor, I do not agree with aligning her with Jack Thompson in some type of "Empire of Evil" plot to destroy video games."

      ^I think the problem here is that we're demonizing Jack more than anything else. People seem to have forgotten why Jack was asserting his nonsense so passionately. His reasoning and Anita's reasoning is what put them in the same boat, not their occupations. All because Anita isn't pushing an actual law doesn't change the fact that she is using the same illogical train of thought that Jack did.

      http://www.gamezone.com/originals/2013/09/18/gta-5-releases-a-wild-jack-thompson-appears-gamers-addiction-has-made-them-retarded

      TLDR - Jack argued that violent games trained children to be aggressive and helped murderers learn how to use guns. Anita is arguing that games were you save women from violent men and women are presented in sexualized ways teaches gamers (as in men since she never really addresses women in terms of effects) that women are objects, that women our their property, that women are weak and incapable, and, in all its nonsensical glory, that there is some kind of connection between disposable damsels in video games and domestic violence against women. See the similarities yet?


      "There are indeed science based ways of looking at this stuff, and we really should be talking about that. If social science experiements are strongly suggesting that violent video games can affect behavior on a societal level, there's no reason to outright dismiss that a similar dynamic could be occurring with treatment toward women."

      ^Except none of those studies make any sense.


      "But fuck yeah, citations would be nice. Just more rigor overall would be great. If the only thing that comes out of this is somebody saying "FUCK, these videos are sloppy and lack citations, I'm going to do this and do a better job", then that would be fucking great."

      ^As much as I want to be eventually done with all this feminism shit in video games, all I can say is that only one of Anita's GOOD critics can objectively take on that task. That means 90% of Anita's critics are out of the question. :P

      Delete
    6. "Doesn't really matter. If games actually did have an effect on people (mainly children) and made them more violent, banning violent video games or at least making it illegal for children to play them is the only real "right" thing to do subsequently. This is like saying that you don't want to ban alcohol just to go on about the negative effects of alcohol...which is why you can't drink until you're 21."

      How do you figure legislation is the only real "right" thing to do in that situation? One can try to educate (or as you put it "go on about") parents and children about the dangers of eating too much sugar without advocating for its outright outlaw (Moderate consumption - same goes for your alcohol example). One can educate others about the dangers of sex without advocating for legal abstinence (use protection).... I don't really follow your logic, here.

      I feel that the research and how we should think about applying it is just more nuanced then you're making it out to be... it can't be boiled down to just "WTF heartrate BS! Sure little billy play hotline miami 12 hours a day" any more than it can be boiled down to "WTF OMG I'M JACK THOMPSON, BAN ALL GAMES".

      Delete
  7. Don't usually comment outside of Bob's blog, but I figured I'd mingle a bit. All I can say in regards to whole "She's even stealing fanart!" thing as that it really wouldn't be a problem if she just acknowledged these people and gave them credit. In all seriousness, she didn't even need to play these games to criticize the narrative nor did she need to provide all her own artwork to promote this increasingly atrocious series. Just mention somewhere in some kind of references page that these people exist. Something? ANYTHING?!?!? Not even a High School level report paper is accepted without a reference page of some kind so why she getting a free pass when it comes to citing who she's taking all this artwork and game footage from? Plus, she's making money off of it. C'mon, guys. You can't just ignore that...

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    1. Really. And I think those Let's Players would've been okay with the use of their footage if they were given credit and some free advertising. But then, as I said, Anita Sarkeesian isn't an honest person, and it's not about her credibility as a gamer, but as an academic. And her academic credibility is already at zero right now, because she and others have called her videos academic presentations, but not one citation of her sources, as if it's not too hard to find most of the content on TVTropes.

      Delete
    2. "But then, as I said, Anita Sarkeesian isn't an honest person..."

      ^Of course she isn't. She's a feminist. What were any of us expecting?

      Delete
    3. A lot less drama and something resembling sanity in a series about video games?

      Delete
  8. Actually, copyright law states that the original artist has full rights to the work she creates, even if she does not own the character depicted.

    Lets Plays are also protected so long as they use their own original recordings of games.

    I do sincerely hope that a class-action lawsuit against Anita is pursued, as she has legally offended enough parties with her profit of plagiarism and theft.

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    1. I'll have to edit that part a bit then. Thanks.

      Delete
    2. That's not the case about let's plays i'm afraid. Truth is it's a grey area.

      Let's Plays don't fall under fair use as they are not commentary, criticism or parody. The reason they stay up is because publishers don't want the bad publicity of biting the hand the feeds them.

      Sarkeesian can use game footage someone else uploaded as the publisher still owns the rights, not the uploader. The only way they can claim copyright is if they have a logo or watermark in the video as they can claim for that.

      I know all about this as I've had multiple meetings with media lawyers as I do gaming videos for a living myself.

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    3. @Anonymous - This is completely false (to the best of my knowledge).

      @Guru Larry - This is completely true (to the best of my knowledge).

      @Vicsor - You might want to double check what your article says about copyright. Ethical/moral issues aside, I don't think you're article is quite on point on the copyright stuff.

      I could always be wrong, of course. Legal sources to back up copyright claims would seem prudent here.

      Delete
    4. You seem to have a lot to say about copyright without an understanding of it...

      Care to back up your knowledge of the different parts?

      Delete
    5. @Jagos: Sure, why not?

      Considering all of this is going down in the U.S.: Title 17 of the U.S. Code

      A Brief Overview of Fair Use: http://www.copyright.gov/fls/fl102.html

      A fun case where a derrivative work lost all ability to defend itself under copyright:

      http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects_ukraine/copyright/cases/anderson_v_stallone.html

      Some articles about how fan works fit into the picture:

      http://www.plagiarismtoday.com/2006/01/18/fan-fiction-plagiarism/

      http://io9.com/5933976/are-fan-fiction-and-fan-art-legal

      If you'd care to challenge me on, well, any of my actual points, I welcome you to do so.

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    6. I was kind of expecting precedents such as Eldred vs Holder but oh well...

      Anyway, the Brief Overview is 107 USC of the Copyright Code, created from the Betamax vs Sony precedent when the court established Fair Use. That doesn't say anything about the court of public opinion though...

      Also, you might want to look at the Perfect 10 precedents because Anderson v Stallone has been overturned in a number of more recent cases.

      And in regards to fan works, that's still a derivative work that MGM hasn't decided to try out in a court of law. So why you're so focused on that is odd...

      Delete
    7. At last, substance!

      Eldred v. Holder? Don't you mean Eldred v. Ashcroft? Or perhaps Golan v. Holder? Either way, those had to do with the constitutionality of perpetual extensions to copyright terms, and really didn't touch on fair use as far as I can tell...

      Also, I think the "Betamax" case is actually Sony Corp. of America v. Universal City Studios, Inc. Betamax v. Sony wouldn't make sense, since Sony made Betamax. It's a quibble, but let's get things right please.

      The court of public opinion is not what I've been banging on about.

      Thank you for directing me to the Perfect 10 cases - this is fascinating stuff. However, it doesn't seem like it has much at all to do with the Anderson v. Stallone case. If you could direct me to some argument that the Perfect 10 decisions "overturned" Anderson v. Stallone (which itself is a misnomer), that would be fantastic.

      Anderson v. Stallone had to do with someone trying to assert rights over an unlicensed infringing treatment for Rocky IV; the courts determined that nothing in the work was protected because it was a clear infringement of copyright.. With the Perfect 10 cases, the matter was whether or not search engines were liable for their use of thumbnails of copyrighted pictures; here, the appeals court determined that the downscaling and usage for the purposes of web navigation constituted transformative and therefore fair use.

      There certainly are contradictions and unexplored areas in copyright case law. However, the Perfect 10 examples do not really pertain to fan fiction or fan works beyond some theoretical argument which is simply beyond my ken.

      Finally, the reason why MGM (or most other copyright holders) have turned a blind eye towards fan fiction, fan art, and other fan works is because they view legal confrontation as doing more harm than good. However, this does not imply any license or consent for utilizing their intellectual properties.

      As long as they can argue that they are not aware of these sorts of infringements, they have no obligation to defend their copyright. If they can't argue ignorance, however, they have 3 years to take action against these infringements, and failing to do so could dramatically weaken their claims to their IPs, and strengthen claims made by fan artists and such.

      Delete
    8. "The court of public opinion is not what I've been banging on about."

      Did you notice how all I've been talking about are court cases? There's a reason for that. They set precedents. Those take time. The reason for going to court is to set up precedents which allow for further clarification in copyright law and it's an arduous process.

      You're way too focused on judicial issues when there are swifter ways to be heard outside of a court system.

      As I've said, Anderson v Stallone isn't going to help anyone if it's not heard in front of a judge and hashed out at the district, appellate, and other levels. That's been the main issue with this entire fiasco. You might rely on it, but it could go an entirely different way using different precedents such as Verizon v Google which allows for Fair Use.

      But that still doesn't change the public opinion that Anita is doing some very shady business dealings when she was given money to fix the problem and could be more honest with what she's doing.

      In regards to MGM... No one cares about fan art because it's outside of their notice. You're talking about a billion dollar company that is working to make the next movie. Why would they want to stamp out on a girl who drew a photo from 5 years ago when they don't even work on the property now?

      Tamara never signed a contract for the usage and you know that. But she drew the art and she's not the only one that has been plagiarized by Anita. She still can draw whatever she want and permission is not required for that.

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    9. "You're way too focused on judicial issues"

      That is all I'm focused on, because that is what people are largely getting wrong.

      I've been using Anderson v. Stallone for a very specific reason: it deals directly with the issue of what happens to the original elements in a derivative work found to be infringing. The answer: they go unprotected.

      If you can help me see the relevance of any of your cited cases to this issue, by all means. As it stands, they seem tangential at best to the issue of whether or not the author of a fan work (art, fiction, etc) has any legal recourse by which to control their work.

      Yes, Tamara can draw whatever she likes. Can she publish it online and take credit for it? I don't see anything on the original page that mentioned who owned the rights to Princess Daphne and her image. If you use such an image to establish a reputation, who knows?

      Look, I don't actually think that fan art is actually a harmful thing - this is a devil's advocate situation. But do you realize how unique considerations over fan arc, fan fiction, and let's plays are to certain subcultures (gaming, science fiction, internet, etc)? I don't want to call anyone entitled... but I'm going to go ahead and call everyone entitled.

      But yeah, fan art and such is largely beneath everyone's notice... until it becomes a legal issue. If there's money to be made or territory to be established, hang on to your knickers, because the lawyers will be en route. IP has value, and even thought they aren't working on it now, I'd bet obscene amounts of money that they would elect to reserve that right exclusively for themselves rather than give it up to anyone else.

      Delete
    10. "That is all I'm focused on, because that is what people are largely getting wrong."

      And I doubt highly that this is going to court.

      " it deals directly with the issue of what happens to the original elements in a derivative work found to be infringing. The answer: they go unprotected. "

      There are other precedents that are in other aspects of derivative works that enrich the Fair Use doctrine:

      http://www.techdirt.com/articles/20110603/21344514552/obscureish-academic-fair-use-case-has-potential-wide-ranging-impact.shtml

      " Can she publish it online and take credit for it?"

      Yes. And she did. But that doesn't stop her rights given by trade agreements from the Berne Convention or the TRIPS agreement that gives her those rights on where her fan art is used.

      "But do you realize how unique considerations over fan arc, fan fiction, and let's plays are to certain subcultures (gaming, science fiction, internet, etc)? I don't want to call anyone entitled... but I'm going to go ahead and call everyone entitled. "

      Then next time don't be hypocritical about it and just say it. I've no time for someone trying to say one thing and do another. Anita does that more than enough.

      ". If there's money to be made or territory to be established, hang on to your knickers, because the lawyers will be en route. "

      And that has nothing to do with accreditation and there is no money at stake here. Why make it about that?

      " IP has value, and even thought they aren't working on it now, I'd bet obscene amounts of money that they would elect to reserve that right exclusively for themselves rather than give it up to anyone else"

      Imaginary property only has as much power as people give it. I've found no evidence that copyright gives people money.

      https://www.techdirt.com/articles/20120330/12402418305/why-missing-20th-century-books-is-even-worse-than-it-seems.shtml

      https://www.techdirt.com/articles/20121205/03474821235/why-copyright-shouldnt-be-considered-property-why-return-to-1790-copyright-may-be-desirable.shtml

      Delete
    11. "And I doubt highly that this is going to court."

      Understand: I'm on a bit of a copyright law *binge* at the moment. The ethical argument is interesting, sure, but I am inclined to first hone my understanding of the legal argument.

      To that end, thank you for feeding the maw by providing cases, articles, and so on. Truly, I do appreciate you indulging my bizarre fixation on this subject.

      "There are other precedents that are in other aspects of derivative works that enrich the Fair Use doctrine:"

      This is interesting, but ultimately tangential to the case at hand. Remember, what we are dealing with is the creator of a derivative work trying to assert a claim of copyright against another party (either the IP owner or a third party altogether). The closer it is to fan work, the better.

      "Yes. And she did. But that doesn't stop her rights given by trade agreements from the Berne Convention or the TRIPS agreement that gives her those rights on where her fan art is used."

      To the best of my knowledge, this would require the artist to establish a valid copyright, and without that copyright, none of this applies.

      Perhaps a new question: do any of the cases you have presented (or any others you are aware of) present an understanding of fair use that would encompass Tammy's rendition of Princess Daphne? Fair use is tough to nail down, but I cannot imagine something that is so easily *mistaken for official art* to fall under fair use and therefore be eligible for copyright protection...

      Perhaps, given a culture that essentially purloins IP in the spirit of celebration, we might establish a set of "weak rights" that would prevent false attribution or plagiarism by third parties, but do so in such a way as to not infringe on the exclusive rights of the IP holders? Then again, you have indicated a desire to overthrow the entire copyright regime as it currently stands, so, good luck with that.

      "Then next time don't be hypocritical about it and just say it. I've no time for someone trying to say one thing and do another. Anita does that more than enough."

      Hey now, that was just a lame attempt at humor. I'm just trying to point out how unique the internet is in its casual use of other people's IPs. Is it fair to assume that this would gel with moral reasoning outside of this domain?

      Some food for thought: http://grrm.livejournal.com/151914.html

      It could (and has) been argued that Martin's characterization of Lovecraft and copyright law is oversimplified and perhaps incomplete, but beyond that, there's something of a moral argument here as well.

      Food for thought.

      "And that has nothing to do with accreditation and there is no money at stake here. Why make it about that?"

      Because we're dealing with matters of civil law? If we want to take legal considerations out of this mess, by all means, I really have nothing to say beyond the legal considerations.

      Delete
    12. "Understand: I'm on a bit of a copyright law *binge* at the moment. The ethical argument is interesting, sure, but I am inclined to first hone my understanding of the legal argument."

      Okay, but I've been studying copyright since ~1998 when the RIAA got the Grokster ruling upheld by the Supreme Court even though it was never implemented in law.

      I read Larry Lessig's book and I've had to make my own adaptations when I saw the law burn people I knew. I'm not being facetious, but it's going to be rather hard to support the legal aspect which doesn't affect the ethical aspect at all.

      "This is interesting, but ultimately tangential to the case at hand."

      Uhm... No. You go to a courtroom and the precedents are king. In a courtroom, it's really about money over anything else and knowing the precedents does far more for your case than anything else.

      "To the best of my knowledge, this would require the artist to establish a valid copyright, and without that copyright, none of this applies."

      As per the Berne convention, copyright is automatically given. TRIPS upholds it and maximizes it further. You don't need to apply for copyright and Tamara has one from the moment of her expression of her work.

      "Perhaps a new question: do any of the cases you have presented (or any others you are aware of) present an understanding of fair use that would encompass Tammy's rendition of Princess Daphne?"

      There's a few cases in journalism and 2 Live Crew's case for commercial use might be relevant, but as it stands, you still don't know the beast you're dealing with... Is Feminist Frequency a non-profit or not? That is first and foremost the question. Then we can take it from there.

      "Then again, you have indicated a desire to overthrow the entire copyright regime as it currently stands, so, good luck with that."

      It's actually not that hard. It's just that 50 years of RIAA and MPAA corporate lobbying have essentially made it so that the law is unbearably complex and out of the hands of artists. It's not like copyright was ever FOR artists in the first place. It's always been about control by publishers and should be eliminated anyway.

      "Is it fair to assume that this would gel with moral reasoning outside of this domain? "

      ??? I doubt you'd get people to really care for copyright so long as it doesn't harm their free speech rights as per Article I Section 8 of the Constitution...

      "Because we're dealing with matters of civil law?"

      And as I've stated, civil law is different from public opinion, particularly how divisive Anita and her shenanigans are. Accreditation in an academic setting is far different from erroneous copyright claims and a lot of people mix the two sadly.

      Delete
    13. "Uhm... No. You go to a courtroom and the precedents are king. In a courtroom, it's really about money over anything else and knowing the precedents does far more for your case than anything else."

      Yes, I am aware of the basic functionings of precedents, thank you. What I am asking is for you, with your years of copyright study, to spell out *how* the precedents you've specifically been citing affect *this* case. Spin a yarn, tell a story, connect dots, do something to connect your cases with the situation at hand, because right now their relevance to this situation is completely lost on me.

      "As per the Berne convention, copyright is automatically given. TRIPS upholds it and maximizes it further. You don't need to apply for copyright and Tamara has one from the moment of her expression of her work."

      Yes, I am aware of this too, but infringing copyrights are generally not recognized as valid subjects of copyright. I have yet to see a standing interpretation of fair use that Tamara's fan art would fall under, and without a license, any copyright she might claim to her work is worth about as much as a fart on the wind.

      Eldred v. Holder had to do with the constitutionality of the perpetual extension of the copyright term (which is pure bullshit, I agree with you there). Relevance to this case?

      The Perfect 10 cases had to do with whether or not Google's thumbnail images, as well as Google and Amazon's linking to infringing sites, constituted infringing behavior. Relevance to this case?

      Verizon v. Google: I can't actually find a case that looks anything like this. For someone who has been studying copyright, since 98, would it kill you to get the names of the cases right?

      And the Georgia State case had to do with textbook materials being used in course packs, e-reserves, and other such educational uses. Relevance to this case?

      "I'm not being facetious, but it's going to be rather hard to support the legal aspect which doesn't affect the ethical aspect at all."

      We're taking the law as it currently stands, rather than the law as it should or shouldn't be. If you want to change or eliminate the copyright regime, fight that good fight.

      My point is that for Tammy to have a valid copyright, you would have to considerably change law and legal understanding from where it currently stands. You would have to adjust or weaken the ownership people have over their IPs to allow someone to stake a claim over a piece of fan art, fan fiction, etc.

      Delete
    14. "What I am asking is for you, with your years of copyright study, to spell out *how* the precedents you've specifically been citing affect *this* case. "

      That depends on the lawyer. And I highly doubt Tamara is going to get an Ira Rothken anytime soon so it's a crapshoot.

      "Spin a yarn, tell a story, connect dots, do something to connect your cases with the situation at hand, because right now their relevance to this situation is completely lost on me."

      Welcome to our completely disconnected judicial system where the person with the most money usually wins...

      "Yes, I am aware of this too, but infringing copyrights are generally not recognized as valid subjects of copyright."

      Infringement has to be determined by a judge. It's not really obvious if you haven't noticed, particularly in a digital world.

      "I have yet to see a standing interpretation of fair use that Tamara's fan art would fall under, and without a license, any copyright she might claim to her work is worth about as much as a fart on the wind."

      And by that token, it could go against Feminist Frequency, especially with her other unethical behavior.

      "Relevance to this case? "

      None. I was just talking about precedents.

      "Relevance to this case?"

      The perfect 10 helped increased the judicial knowledge about fair use.

      "For someone who has been studying copyright, since 98, would it kill you to get the names of the cases right?"

      Yep. It's a heart attack waiting to happen.

      "Relevance to this case?"

      Oh come on... Academic fair use in jeapardy? That's pretty damn relevant.

      "We're taking the law as it currently stands, rather than the law as it should or shouldn't be."

      Irrelevant to what I was saying.

      " If you want to change or eliminate the copyright regime, fight that good fight. "

      That was a side point in my eventual goal.

      "My point is that for Tammy to have a valid copyright, you would have to considerably change law and legal understanding from where it currently stands."

      ... No you wouldn't. You've yet to really show that she DOESN'T have a valid copyright. And since she's automatically given one on her work, you have a higher burden for fair use in this context.

      "You would have to adjust or weaken the ownership people have over their IPs to allow someone to stake a claim over a piece of fan art, fan fiction, etc."

      And here is the crux of your issue. You're confusing the idea with the expression. Her expression of Princess Daphne has an automatic copyright assigned to her and it's not in the public domain to be shared. Sure, Daphne still has ownership from MGM, but the fact remains that if she wanted to claim copyright on the expression of her fan art, she could.

      She hasn't though and people are getting way too hooked on judicial battles instead of observing the shenanigans right in front of them (such as Feminist Frequency changing her "nonprofit status" since 3/11...)

      Delete
    15. Read up on Walt Disney Productions v. Air Pirates, then trying typing what you just typed with a straight face.

      Then again, if after over a decade of studying copyright you can't even get the names of specific cases right, who knows how you will end up reading that case?

      Keeping fighting the good fight against low-key feminist video projects, centuries of copyright law, and whatever else it is you are trying to do. This link might be helpful:

      https://transformativeworks.org/faq

      Hopefully the next 16 years will serve your legal understanding better than the last 16 years...

      Delete
    16. This comment has been removed by the author.

      Delete
    17. *shrug*

      I really don't care what you think. A quick study of the law isn't going to change the precedents and quite frankly, acting as if one way is superior to others really ignores all other aspects of the law. But good luck on that insistence that the law is all that matters. I tend to look at the parts where common human decency and ethics actually matter instead of a pedantic look at everything law related.

      Delete
  9. To be honest, is she's ignoring your messages, then you can claim copyright on her videos on YouTube. I'm sure she'll bother to pay attention to your existence once you affect her message publicly.

    It's what I would do if she stole my artwotk. You've tried to speak to her in a polite and respectful manner and she chose to ignore you.

    ReplyDelete
    Replies
    1. No surprises there. When has Anita responded to any of her critics who weren't trolls?

      Delete
    2. When she can use their comments in TED talks about what mean and nasty poo poo heads these horrible trolls are to poor little 'ol Anita!

      Delete
    3. True Dat. I mean it's like she's doing everything in her power to not explain any of her points to people who may disagree. It's like if you don't see the sexism in "insert piece of media", the problem's got to be you and not her crazy-ass arguments that assert that games where you save women teach you to enslave them in real life.

      Delete
    4. Which is funny because the way Jonathan McIntosh is now defending this, it makes the Beat-Up Sarkeesian game and all those images of her Photoshopped into porn alright because "it's just transformative remixed works". Surely the moral implications don't matter? The double standards of these people are astonishing.

      (not to mention Sarkeesian herself promoting violence against Randy Pitchford by endorsing that fanfiction).

      https://twitter.com/deviever/status/441844819099267072

      Delete
    5. Unfortunately, people will STILL hate on the "Beat-up sarkeesian" game cause of the whole fact that it featured violence against women- ignoring the context it gave.

      Delete
    6. I'd advise against using a DMCA takedown. Then Anita can claim censorship. By being civil and polite, CowKitty has upended Anita in the most ironic fashion possible... She was nice and used social mores over copyright to influence cultural behavior about Anita's behavior.

      Any type of takedown is censorship and you lose the moral high ground.

      Delete
    7. I know I'm loving it,jago. And it was only a matter of time before somebody like this who was polite and considerate, got to a point where they couldn't be ignored. Not that all the people complaining about her arent trying to paint her in a bad light

      Delete
    8. @Guru Larry - You presented a clear understanding of copyright in a previous comment, yet you seem to have forgotten it here...

      Careful with this advice - a false copyright claim can have legal ramifications.

      Delete
    9. Copyfraud is punished in a court of law, not the court of public opinion. Even then, 512(f) of the copyright code is weak against punishing corporate structures such as Feminist Frequency's.

      Delete
    10. @Jagos You are of course forgetting how in 512(f) a misrepresented copyright claim can result in civil damages owed to the alleged infringer. Not to mention that while the criminal fine is hilariously small and ignored by larger entities, it's not an inconsiderable amount for an individual, like an artist or some such.

      All I'm saying is that, as always, consult a lawyer before engaging in legal action.

      Delete
    11. " You are of course forgetting how in 512(f) a misrepresented copyright claim can result in civil damages owed to the alleged infringer. "

      Good luck on getting damages in a court of law...

      "Not to mention that while the criminal fine is hilariously small and ignored by larger entities, it's not an inconsiderable amount for an individual, like an artist or some such."

      As of now, there have been no punishments, which is my point.

      Delete
    12. https://www.eff.org/press/releases/lawrence-lessig-settles-fair-use-lawsuit-over-phoenix-music-snippets

      I'm not saying legal consequences are likely. Just, it would be responsible to know what is *possible* before any legal proceedings.

      Delete
  10. The author has not always existed. The image of the author as a wellspring of originality, a genius guided by some secret compulsion to create works of art out of a spontaneous overflow of powerful feelings, is an 18th century invention. This image continues to influence how people speak about the “great artists” of history, and it also trickles down to the more modest claims of the intellectual property regime that authors have original ideas that express their unique personality, and therefore have a natural right to own their works - or to sell their rights, if they should choose. Although these ideas appear self-evident today, they were an anomaly during their own time. The different pre-Enlightenment traditions did not consider ideas to be original inventions that could be owned because knowledge was held in common. Art and philosophy were products of the accumulated wisdom of the past. There were no authors - in the sense of original creators and final authorities - but only masters of various crafts (sculpture, painting, poetry, philosophy) whose task was to appropriate existing knowledge, re-organize it, make it specific to their age, and transmit it further. Even the neoclassical worldview that immediately preceded Romanticism viewed art as imitation of nature and the artist as a craftsman who transmitted ideas that belonged to a common culture.

    Continued: http://subsol.c3.hu/subsol_2/contributors0/nimustext.html

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    1. I agree that this is historically the case, but that doesn't take away that this is appropriation of someone's work without credit and not just an issue of who the rights to the IP belong to.

      Delete
    2. What exactly is desired in this case? A cut of the Kickstarter proceeds? Or is it to bruise Sarkeesian with a public "Gotcha!" in the fallacious hope that it will somehow bruise her thesis by extension? Or is is merely hurt feelings at not being recognized for what amounts to a minimal contribution?

      If it's a crass money grab, then it should be taken to the courts, and those who would side with the claimant would do well to remain silent on the matter if they don't wish to negatively impact the claimant's case (the road to destruction is paved with good intentions).

      If it's a cynical "Gotcha!", then the cynics might benefit from a crash course in logical fallacies.

      If it's a desire to be noticed, then the Nimus text (a great read, thanks!) seems to drive the point home: Fanart is the naked expression of those historical artistic values, being a conscious recompilation of what came before (as in fact all art is, albeit subconscious, since the artist was not reared in a vacuum; and though its inspiration be veiled from the public eye by the illusion of having sprung almost magically from between the artist's ears). For a fanartist to demand attribution seems the height of contradiction -- not because they're laying claim to the "IP," but because they're acknowledging the traditional (and correct) view of art by virtue of their work, only to turn around and reject that view in favor of the more recent (and incorrect) view.

      Or is something else desired here?

      Delete
    3. Is a simple acknowledgment of the people who produced the stuff she took an impossible feat? Is it unreasonable to simply show good manners in a project that was funded to be professionally produced? Especially in this case where acknowledging the original artist would in fact help promote a female artist?

      The very fact that you have to reach back to pre-romantic notions just to find some sort of defense for a basic lack of manners is mind-boggling.

      Delete
    4. If one were seeking a defense for lack of manners, then one might do better than the Nimus text, since that clearly isn't its purpose.

      At any rate, I agree with you that manners are nice; but we both know that not everyone has them, and most people generally don't kick up a fuss over a lack of them. Writing letters referencing copyright law doesn't seem to be motivated by a desire to scold someone for lack of manners. I suspect that something else is desired.

      Delete
    5. What you suspect is none of my business. In this context I'm an artist seeking recognition for a fellow artist who has been the victim of art theft, and even though we can discuss the legality of fanart all day long, that's simply not very nice.

      On a more general scale, if you are expecting some grand design on my part to take Feminist Frequency down entirely, you are reading too much into things. I don't like what she's doing, but my entire push is nothing more than trying to get some basic acknowledgement for the people I feel she has wronged and to introduce some actual discussion on the topics she brings up (these are also 2 separate issues. I do not expect criticism of her conduct to challenge arguments). At worst I can be accused of doing that with a certain sense of snark because of the frustrations that go along with that.

      Delete
    6. When trying to understand someone's actions, it helps to understand their motives. It makes sense, therefore, for a person who wishes to be understood (and public blogging seems to suggest that wish) to make it their business to have their motives understood.

      So I thank you for doing so. As you've made clear, you are motivated by a desire not only to see Sarkeesian acknowledge the use of uncredited materials, but also to use the event as an opportunity to pressure her into giving a hearing to your arguments opposing her thesis. Which is to say, it's about playing "Gotcha!" after all -- although you acknowledge that it will require an actual argument to take her down.

      Delete
    7. I hope you realize the modern understanding of Women's Rights wasn't really a thing in early human history, right?

      Delete
    8. 1. A few centuries ago was not "early human history."

      2. You point is orthogonal to the subject. There is nothing hypocritical about arguing against the modern view on copyright law while simultaneously holding a modern view on women's rights. There are good things about the modern age (e.g., marriage equality), and there are bad things (e.g., the USA PATRIOT Act).

      Delete
    9. @Anonymous

      How by the Gods are you talking about women's rights and copyright when the two aren't even related in this argument?

      @judgezedd

      You read far too much into your own confirmation bias.

      Delete
    10. My point is that you're arguing something uselessly out of date for the proper context of this argument.

      But apparently, there are people claiming "the copyright issue is just detracting from Sarkeesian's actual point". Which is to improve women's representation in video games somehow. Which she does so under the affiliation of Feminism. Which is apparently about Women's Rights. Which is supposedly the real point meant to be talked about for some reason.

      So basically, it boils down to some of her supporters arguing "who cares about this copyright bullshit? You're not trying to debate Sarkeesian's points properly."

      Except no. This boils about credibility. Which also matters.

      And Vicsor has a point that I was trying support. Why are you throwing that sort of context into a debate about copyright issues?

      Delete
    11. Also, this wasn't about claiming you were being hypocritical about the two specific topics of "18th Century Authorship" to "Modern Women's Rights".

      The later was only relevant because Anita Sarkeesian. Allegedly.

      This was about bringing a view of "you know, authors didn't really have a presence, so authorship didn't matter back then" to the more modern-relevant view of "this person made this form of artwork. It's common courtesy to associate the person's name to their work" and using the former to somehow justify using another artwork without credit.

      Delete
    12. And this is why I think copyright law should be abolished...

      Ok, the 1700s gave us the Statute of Anne which is where copyright law came from. But what we're dealing with is plagiarization mainly. The problem arises in that people like to have accreditation for their work and Anita was passing off all of this work as her own "remix". She's been doing this for ages and Johnathan is willing to say that everything is a story:

      http://www.youtube.com/watch?v=B4noZRsVV30 (Johnathan says the world is made up of stories)

      http://vimeo.com/13058679 - Johnathon talks about remix video again.

      Basically, they'll reappropriate anything so long as the rules of conduct don't apply to them.

      Sorry, but after skimming the article I came to a negative view on yours and read it wrong.

      Delete
  11. Wow! A student of politics caught stealing? Totally unsuspected. What she is doing with her scam is what politicians around the world are doing at a much higher scale.

    ReplyDelete
  12. sue the shit out of her

    ReplyDelete
  13. Is it possible to imagine that an image was just googled and downloaded and then handled as an image to manipulate rather than an intentional search for fanart to ripoff?

    ReplyDelete
    Replies
    1. I think simply taking it from Google without consideration is the most reasonable explanation. I don't think she specifically went out of her way steal fanart.

      However, whoever made that banner did remove the artist's signature and used it without any sort of credit, which is heavily frowned upon (especially among artists, as you can imagine). I think it's reasonable to expect Feminist Frequency to own up to that fact.

      Delete
  14. Princess Daphne is a copyrighted character belonging to Cinemetronics. If Sarkeesian were to pay a royalty for that image, it would have to go to the owner of the character, not you. She'd also have to pay for *every other* character portrayed in those videos. She doesn't because it's fair use under copyright law. (lots of rights holders get confused about this, you're in good company.)

    Fair use protects her because she's using this imagery for educational purposes.If you haven't gotten a cease-and-desist letter from the owner of this character, you might ask yourself why your use is acceptable and hers is not.

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    Replies
    1. You need to read up on fair use. First of all, Sarkeesian's videos aren't non-commercial, she isn't running a charity, she's making money of her videos. So the whole "educational" defense is out, and even if it wasn't, it's not a sure thing even then - fair use is tricky, what you're talking about is simply one of many aspect that is considered when courts are deciding on fair use.

      Second, no one but some loud idiots are speaking about royalties or taking this to court (this is to small for it to be worth it) but about how a decent person go about when they want to use the work of an artists.

      For artwork like this, a decent person asks the artist for permission, usually with the promise that they will get credited for their work. Letting the artist decide how and where their art is used is important, even when there's no money involved.

      For example, how would you react if you found your art in a Christian anti-abortion campaign? Regardless if it happens to be fair use or not, to not ask, and to not even give credit, is what a douche-bag does. To go so far as to even edit out the signature of the artist, then you're really scraping the barrel for shitty behavior towards the artists.

      Delete
    2. I think it's more about stuffing one in the craw of the holier-than-thou feminists.

      I mean, the fanartist is female and drew a sexy picture. Tropes vs. Women is a series complaining about inherent sexism in games. If a female artist draws such a picture, doesn't that mean some women like these filthy, nasty patriachal games? And maybe that feminists don't represent the views of all women?

      At that point it becomes more about the individual not liking a game. There are games I don't like (even entire genres), but I don't start a web series and beg for money in order to enrage a group of political activists.

      Delete
    3. Geralt- considering Anita agreed with a straw feminist in a cartoon DIRECTED by a feminist to show what the difference between feminism and batshit insane man-hating is, I think this isn't about feminists not representing the views of all women- Anita doesn't represent the rules of all FEMINISTS.
      So really, this is more ANITA not representing the views of all women... Which has long been established.

      Delete
    4. From Anonymous:

      "You need to read up on fair use. First of all, Sarkeesian's videos aren't non-commercial, she isn't running a charity, she's making money of her videos. So the whole "educational" defense is out, and even if it wasn't, it's not a sure thing even then - fair use is tricky, what you're talking about is simply one of many aspect that is considered when courts are deciding on fair use. "

      Even if it were true that the Tropes vs. Women project was deemed a commercial enterprise, it could (and likely would) still fall under 'fair use.' Commercial fair use has a higher standard to meet, but all of the fair use guidelines, even the commercial vs. non-commercial, are taken into account as a whole, so no one thing can establish whether or not something is 'fair use.'

      Whether or not FF credits the fan artist for their work is an ethical issue, not a legal issue.

      Delete
  15. She can't bitch...

    It's not her character to start with, she owns nothing of it, thus has no legal right to anything regarding it, in fact the ACTUAL copyright owner could take HER to court for trying to pass this off as something she is legally in charge of..

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    Replies
    1. Geeze- LOTTA dumb people who don't understand how fanart and original works work.

      Delete
    2. Copyright doesn't work like that. Even though she doesn't own the copyright of the character, she still owns the copyright of her own art.

      This work similar to how copyright for music in the case of a song cover. The original artist or record company own copyright of the actual song, but if someone records a cover of that song, then that someone have own the copyright over their own particular recording, even if they don't have permission from the song's original copyright-owner.

      Likewise with all fan-art, the companies and original artists own the original copyright to all character etc, but the artists of the fan-art own their own art.

      The original artists copyright restricts what the fan-artists can do with their fan-art - for example someone trying to sell it commercially is likely to face legal actions - but the actual copyright for the fan-art is still owned by the fan-artist that drew it.
      This actually means that companies that own the original copyright simply cannot use fan-art of "their stuff" as they please - they need the fan-artists permission to use it (unless ofc it falls under fair use).

      Delete
    3. @Anonymous: Are you certain that YOU correctly understand copyright law?

      "This actually means that companies that own the original copyright simply cannot use fan-art of "their stuff" as they please - they need the fan-artists permission to use it (unless ofc it falls under fair use)."

      To the best of my understanding, this is demonstrably false. If you can hook me up with some legal understanding of these issues, by all means, I will stand corrected.

      Song covers are actually an interesting example, because they are pretty much all licensed in some fascinating ways. Because cover songs are largely licensed, their original elements (namely, the actual recording and accompanying video footage) do fall under copyright protection. However, the arrangement itself does not, as Jonathon Coulton found out the hard way when Glee was able to appropriate his arrangement of 'Baby Got Back' with impunity, without getting permission, giving credit, or paying royalties to JoCo.

      However, Fan Artists (and other unlicensed fan work) do not fall under this category, as there are no licensing arrangements (to my knowledge) that cover such materials. As such, Fan Artists don't really have any legal cover or ground via which to control or defend their works, since they are largely all non-fair use copyright violations.

      Delete
    4. ^ So something that every website in the world has been previously against, from Deviantart to the standards of practice for school work, is magically OK cause "Anita can do no wrong."- gotcha.

      Delete
    5. ^ I didn't say it was okay. I said it wasn't protected by copyright.

      If there is an issue here, it is ethical, not legal.

      Delete
  16. Look into the altered brain-function of ideologues, cause zealots and the like. Its why their blatant ignorance to logic, reason and proof leaves us flabbergasted. These people are in every way "religious nuts", just fanatics of a different stripe. They're cultists, and in most cases the only way to rip such a devotee from their obsession is martyrdom, the collapse of said cause or deprogramming (with limited success).

    And where many of these suggestively susceptible people might have traveled through life w/o being exposed to such causes otherwise, the internet allows movements to reach much larger audiences as we cross paths with more people than we ever have. It also allows these obsessives to more easily locate one another and organize. Making what would have been one "neighborhood whackadoo" into 'a movement'. The positives would be things like the Arab Spring, to think that there isn't a dark side to the global exposure and access to ideas and people is a mistake.

    Now for clarity I'm speaking of the reason denying "followers" referred to by many a people making reference to her unwavering supporters. Not People like Anita and Mcintosh, their behavior is very much in line with manipulative con artists, televangelists and other charlatans that prey on the susceptibilities of people for profit. As can be seen through their flatly questionable stance wording (many with a back door for potential future escape) and recent defense tactics when character, motives or actions are called into question. They don't display the plainly identifiable denial rooted zeal of their backers, but employ calculated tactics in an effort to escape accusations that *might* see credibility destroyed and with that the money train derailed.

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  17. Another amazing find, Vicsor. I'm interested in seeing how this develops over the next few days and weeks.

    I'm so sick of seeing the term "fair use" thrown around as if it's a catch-all for using anyone else's content without referencing it or asking permission. The fact is that everyone references information that they received from outside sources; students and professionals. Journalists have things like "Source: Getty Images" beneath images in their articles.

    The fact is that Anita doesn't do that. Her fans can support the project and say her use of videos and images is fair use ... but that just means it isn't academic or professional. The odd thing is that referencing other people's material isn't at all difficult but Anita Sarkeesian (and her producers) simply choose not to do it. It really is indefensible.

    I'm interested in seeing how this develops over the next few days, particularly with Jonathan McIntosh's very questionable response about fair use not having to be "noncommercial". That's a defensive statement if I ever read one.

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  18. Have you seen how Feminist Frequency appears as a corporation name? http://kepler.sos.ca.gov/

    Also, it doesn't appear in the list of exempted organizations for charities and nonprofits.
    https://www.ftb.ca.gov/businesses/Exempt_organizations/Entity_list.shtml

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  19. From this post:

    "That doesn't take away the work put into crafting the image and the original touches unique to the artist. Copyright law might be a gray area when it concerns fanart, but there is more to it than just who the character belongs to. As such the artist still has rights when creating an image because it's their image."

    Can you elaborate on this please? Legal opinion, court decisions, or even directly citing the law itself would be grand.

    I have been looking into this over the past couple of days, and TBH, I have not found anything so far to support this understanding of copyright (to the contrary in fact - check out Anderson v. Stallone).

    Ethically, you might have an argument. Legally? I'm not sure fan artists have *any* say over who does what with their work, other than the original IP holder and whoever is able to defend a claim of fair use.

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    1. I'm not a lawyer and I have no desire to do in-depth research regarding copyright laws from countries I don't inhabit. I have no intention of suing Anita Sarkeesian nor am I attempting to goad someone else into doing so. I went by common decency and personal stories of other artists who have dealt with this in the past and I've never heard anyone make the claim that this situation is ok.

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    2. It's a strange and sad state of affairs when you're apologizing for a known thief who conned you out of money when you can't even be bothered to understand copyright law and how plagiarization is different from legal shenanigans...

      Delete
    3. @Vicsor: I just thought it might be prudent to avoid dishonest and/or false representations of copyright law when criticizing someone for dishonest and/or false behavior in general. It would make you look like way less of a hypocrite.

      @Jagos: Good lord, can you back up any of your snark?

      I wish I had backed the Kickstarter, but that is beside the point. My point is that people have been just plain making crap up about how copyright does or does not work, and it's driving me nuts (I've supplied some of my sources elsewhere in the comments. I can't guarantee perfect knowledge of this subject, but when I make assertions about copyright, know that *I have at least tried* to be accurate about this).

      What really tweaked my nipples about this story is how the open letter and its followups contained accusations of copyright infringement, as well as how the artist, who seems like a lovely person and likely didn't mean to come off this way, made implied threats of legal action in order to demand that FF either prove itself to be non-profit or leverage them to remove her art from the collage in question. Now I don't know about you, but I don't respond well to threats, so FF opting to simply reaffirm their legal rights was hardly surprising.

      Now, an ethical argument? Sure, why not? Even if Cowkitty doesn't have any legal ownership by which to obtain recourse and control how her work is utilized, that doesn't mean she lacks ethical/moral ground to demand fair treatment. Copyright or no, she still deserves recognition and respect for the the time, effort, and skill put into a work that was apparently good enough to merit usage in a Kickstarter campaign and accompanying presentation.

      At the very least, she certainly deserves proper attribution. At this point in the game, perhaps an apology for causing the artist grief and involving her rather than using *actual* official art in the collage would be called for, not as a legal obligation, but simply as an expression of decency and courtesy.

      Unfortunately, between the threatening language and the inevitable chorus of hooting dickholes that inevitably poisons any attempt at civil and reasonable dialogue, I don't see that happening, which is a shame.

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    4. " Good lord, can you back up any of your snark? "

      Why yes... Yes I can. In fact, I can be extremely snarky and I'm just being nice right now.

      "My point is that people have been just plain making crap up about how copyright does or does not work, and it's driving me nuts"

      A 300 year old concept which has been changed 15 times in the last 30 years should kind of tell you that the law on this is borked beyond belief...

      "What really tweaked my nipples about this story is how the open letter and its followups contained accusations of copyright infringement, as well as how the artist, who seems like a lovely person and likely didn't mean to come off this way, made implied threats of legal action in order to demand that FF either prove itself to be non-profit or leverage them to remove her art from the collage in question."

      Anita claims Fair Use. She has to back up that claim. If Tamara wanted to shut down the website with a DMCA claim, she could have done so without trying dialogue first. It doesn't matter what you think on this or what you believe. The PRO-IP Act and the DMCA give her a lot more rights in this situation.

      "Now I don't know about you, but I don't respond well to threats, so FF opting to simply reaffirm their legal rights was hardly surprising. "

      Showing the letter and presenting her non-profit status would have resolved the issue. But of course, since it has come out that she's a non-stock corporation, who isn't doing this for educational purposes, that throws out the Fair Use defense, or at least minimalizes this considerably. Karma is a harsh mistress.

      "Unfortunately, between the threatening language and the inevitable chorus of hooting dickholes that inevitably poisons any attempt at civil and reasonable dialogue, I don't see that happening, which is a shame."

      Why in the hell are you victim blaming? She just wanted accreditation and there wasn't a vague threat. She just utilized a list of Fair Use to just ask if Anita was nonprofit and they didn't even answer that. And given their odd behavior, they want to claim things that may not apply to them. That's pretty damn unethical given the combination of other problems with Anita and her series for the past two years.

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    5. I do not represent copyright law regarding fanworks (especially the free online kind) as anything other than a gray area and nothing I've seen has convinced me that whatever someone creates automatically defaults to the holder of the intellectual property or is allowed to be taken by a different party entirely.
      Keep your allegations of hypocrisy to yourself.

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    6. @Vicsor: From your article:

      "That doesn't take away the work put into crafting the image and the original touches unique to the artist. Copyright law might be a gray area when it concerns fanart, but there is more to it than just who the character belongs to. As such the artist still has rights when creating an image because it's their image. Those rights don't include someone else having the permission to take the work you put online to be used in a commercial project with the artist's watermark removed (it's also simply nice to ask before you take it from Google without sourcing)."

      Forgive me, but my reading of this suggests that you are making assertions about copyright.

      If you are making a moral argument, you make a very strong one, so by all means. But you might want to reread this part, and ensure it doesn't say anything about copyright beyond what you understand to be true.

      Otherwise, my allegations of hypocrisy shall be shared! And readily! GIRD YOUR SCREEN. (Insert dramatic music here - fair use of course!)

      @Jagos:

      Just because copyright is fluid (as often happens with case law) doesn't mean it is a free-for-all. Probably.

      ...hopefully?

      Look, fair use is hard to nail down, I'll give you that. But from a legal standpoint, this case isn't particularly difficult. I'm not posting Anderson v. Stallone everywhere because I fail at google forever, but because it specifically addresses the rights of an infringer to their infringing work. Which turns out to be... jack squat. If you can find a court case that contradicts or supersedes this understanding, please, hit me. I've been looking.

      "Anita claims Fair Use. She has to back up that claim."

      In a court, she does. Outside of that, why would she? I mean, she holds about as much regard for gamer opinion as a cellular biologist holds for the opinion of a culture of E. coli.

      "
      Why in the hell are you victim blaming? She just wanted accreditation and there wasn't a vague threat. She just utilized a list of Fair Use to just ask if Anita was nonprofit and they didn't even answer that. And given their odd behavior, they want to claim things that may not apply to them. That's pretty damn unethical given the combination of other problems with Anita and her series for the past two years."

      When you are getting into accusations of copyright infringement and demands for evidence establishing fair use, you are getting into legal threats. Copyright law is, in fact, a legal issue.

      Do I believe that the artist intentionally did this? Hell no, and I said as much earlier. But FF didn't know that.

      Finally, I don't think it's that "odd" that FF wouldn't have an audit ready in case the internet mobs demanded them. Outside of a legal need, FF would only need to provide this documentation in the event that internet opinion mattered one bit, and considering how she funded the project by pissing off the internet, I wouldn't hold my breath.

      If I came off as victim blaming, that wasn't my intention. All I was saying was that this dialogue was dead before it started.

      tl;dr The moral/ethical argument against FF is strong. The legal argument, however, is baseless.

      Delete
    7. I am making the assertion based on the fact that every situation where this has happened, if it could be resolved, has ended favorable towards the artist. (And I mean specifically art theft vs fanart cases, not fanart vs IP holder)

      If you want me to make clear that I'm not a lawyer and I'm not giving legal advice, I will do that. I only ever meant that paragraph as an explanation for non-artists who may not understand what the big deal is. However what I see as the big problem is that you expect me to provide accurate legal justification on an issue that basically gets resolved on a case-by-case basis (if it appears in court at all because these things tend to get handled before they even get there), and I'm neither giving legal advice on how to proceed nor is the comment section of my blog a court system in which we can test these things out. And if I learned anything over the past few days it's that this sort of stuff being more thoroughly documented by appearing in court is basically what we need to sort out all the confusion.

      Also I appreciate the more humorous reply this time.

      Delete
    8. "I am making the assertion based on the fact that every situation where this has happened, if it could be resolved, has ended favorable towards the artist. (And I mean specifically art theft vs fanart cases, not fanart vs IP holder)"

      Are you referring to instances involving legal remedy, or instances where people did the right thing and respected the artist's wishes? If it's the former, I'd be *very* much interested in those cases.

      I don't know if you've noticed, but I am on a copyright law *binge* at the moment.

      I'm an odd duck. (Note: 'Odd Duck' is used under fair use principles, as Betty Ross is a non-profit entity.)

      Barring that, the only sort of change that I would humbly submit for your consideration would look something like what I have asterisked:

      That doesn't take away the work put into crafting the image and the original touches unique to the artist. Copyright law might be a gray area when it concerns fanart, but there is more to it than just who the character belongs to. *Even if they aren't necessarily protected under copyright law as it is currently stands,* the artist still has rights when creating an image because it's their image.

      Is that a fair characterization? This way your article doesn't commit to any possible overreach or misunderstanding of copyright law, yet it still makes a strong case for what is right or wrong ethically (and by extension points out where copyright law may stand to be improved or reinterpreted to fall in line with better moral reasoning).

      I'll leave that to your judgment.

      Delete
    9. Bravo - this is much clearer.

      On hypocrisy, I will leave my stupid comments in my pocket.

      http://www.youtube.com/watch?v=lfUj4QJGnok

      Delete
  20. I've put up a video on Johnathon's questionable behavior.

    https://www.youtube.com/watch?v=oDNkoTliIf0

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  21. Stealing copyrighted art to use for a commercial project is bullshit. Maybe Anita was lax when she used the image, didn't research it well (*cough* at all), and didn't realize it was fan art. Maybe she did know and used it anyway. Either way, she should have given credit as soon as she DID know whose work it was, and asked the artist if she was alright with it being used. If not, it should have been taken down.

    Not sure how I feel about the let's plays, though. If she's using short clips for criticism/critical review, I'm pretty sure that's kosher under fair use, but then again, I'm not a lawyer either.

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    1. I understand why for some games the use of Let's Play footage might be outright required due to rarity. What gets me about that situation is that she still claims she's recording her own footage when she's clearly not. For my part I'd be happy to see her simply acknowledge the fact that she does use them rather than constantly lying about it.

      Also apart from it simply being nice to cite the sources, it would also mean we get a list of videos we can check out to see the individual clips in context without having to track down and play all those games ourselves.

      Delete
  22. All that being said about the let's plays, she -still- should be citing the original owners and what the clips are from.

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  23. If someone is criticising a copyrighted work, does that count as “fair use”, even if they profit from criticising the work?

    I'm not sure why so many people seem to have a personal dislike for Anita Sarkeesian. I don't really understand what she's done wrong that's hurt so many people.

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    1. - Spammed 4chan with her Kickstarter, using the dissent to make her money, then blaming gamers when they weren't her target

      - Stealing Let's Plays and pretending they're her own

      - Running a corporation as a non-profit

      -Lying about herself and her background

      - Blaming the gaming community en masse with gender specific insults

      - Tropes series rehashed from Anita's old work, questioning why she needed the money.

      - Ignoring legitimate criticisms and merging it with trollish behavior.

      - So many contradictions in her Tropes series it's just ridiculous...

      - Journalism not doing its job of checking her details and basically taunting the public to expose her as Jack Thompson with a vagina.

      How much more do you need?

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    2. I see Jagos beat me to it with a short list, let me just add to that the reason why I care in the first place:

      I'm an advocate for better female characters in media myself, and I'm of the opinion that Anita Sarkeesian is setting that cause back rather than helping it.

      I'm also not fond of how she steps on the little guy for fun and profit (like using Let's Play footage and fanart without any sort of credit). I don't care how technically legal you think it is, that's morally simply wrong.

      Delete
    3. Don't forget the fact that in addition to that short list, we STILL can't hate her FOR THAT- it's ALWAYS cause we're "MRA dudebro trolls who hate womenz"
      This who thing is putting gaming back in the dark ages when people were ridiculed for it.

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    4. >I don't really understand what she's done wrong that's hurt so many people
      These boys got buthurt because someone (especially woman) is criticizing their games. In their little world that they are living in, only they have rights to say opinions about video games and how wonderful these games are. You can't discuss with gamers because they are demanding that only true statements are these which are created and accepted by gaming community. So if you are critical to many of myths created by gamers you will make them feel buthurt.

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    5. Strange that they say that RIGHT after MY point of the fact that people say that.

      Delete
  24. Re: Vicsor
    Sorry dude, no bate this time. I know that truth is painful for you but it's fact that gamers are one of biggest hypocrites. But what to expect from community where typical member's way of thinking is the same as uneducated teenage boy who can't admit to his mistakes and lack of knowledge but he will do everything to defend his false beliefs. Because of nature of gamers video games will never be serious medium like these boys would want to. But hey what can gamers do if not deluding themselves? It's the only way to feel better because looking more critically on themselves and video games is out of their capabilities. Deal with it dude.

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    1. If it's not bait it would be a straw man. Immature as certain sections of the gaming public might be, the crowd I run with has moral and intellectual reasons to dislike Anita Sarkeesian. Sure, that comes with certain frustrations (see also: your comment) but rest assured that the issue on my side has nothing to do with fear of women having an opinion.

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    2. @Vicsor

      It's amazingly sad when anyone has more insults for people they don't agree with and project their own biases on others which does nothing to make better games...

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    3. Funny, someone broad brushing a community as typical hypocritical teenagers. When the average gamer is over 30, and getting older. We didn't stop gaming just because they stopped making Colecos. We just had kids.

      Sleel (not bothering to make an acct for a reply, as I don't use any of the sevices in the pull down list. this is my name on any online stuff, since 1994, it's my online name as much as my real name is me. or Sleel_of_Wpg, if taken)
      P.S. If you have to hide behind anon, when user names are pretty anon in the first place? Sad sack.

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    4. Its even more sad that we're defending a woman having an opinion, and in fact her rights to KEEP that opinion, and we get asshats like this cause it's not the "right" woman.

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  25. As it turns out, Tammy isn't the only artist who has had her work taken by Anita without permission. I came across this article this morning:

    http://start.toshiba.com/news/read/category/Technology/article/destructoi-another_artist_speaks_about_having_their-ncrd

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  26. I'm glad that this has been resolved. I read the apology from FF and laughed a bit as it had that sort of apologetic tone backed with an excuse so that they could try to appear blameless.

    "Compounding our confusion, Tammy’s image is used on many video game sites and forums without proper attribution to the artist and without indication that it is fan art. It was on one of these sites that we originally found the image which was grouped with many other official images of famous female gaming characters."

    I think I know which site she got it from. It's just a thread voting on which female character is the best. The Princess Daphne used is Cowkitty's with the mark in the corner any everything as we see it. They actually had to erase the signature mark.

    Still isn't this sort of weird, controversy is what gave her project so much fame and them not willing to credit an artist caused controversy which is giving her fame (although she handled it beautifully and doesn't actually want it that way).

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