CSotD: A marginally qualified lecture on copyright

Today’s Non Sequitur (AMS) starts off a posting which also begins with my admission that I am not a lawyer and this is not legal advice. Close cover before striking. Void where prohibited.

Still, before I started critiquing cartoons regularly in 2010, “fair use” and “copyright” were the first things I looked into, including querying the syndicates for their input on the topic.

And I’m still here. At the last AAEC Convention, a cartoonist groused a little about my having chided him over a cartoon. I started to explain the mission, but he interrupted me: “No, no, when I’m off the mark, I want you to kick my ass,” he said.

A few months later, he won a major award, though it was likely based on the number of times I didn’t have to kick his ass.

Use of copyrighted images in criticism and commentary is fair use, though I give credit and links, and try to avoid using more of a book, for instance, than is necessary to make my point.

The morning began with a Clay Jones tweet that alerted me to a SCOTUS decision on the topic, and here’s a paywall-free copy of that Washington Post article.

And here’s another, briefer look at the matter from Bado’s blog.

And if you really want to take a deep dive, here are the SCOTUSblog files and knock yourself out.

And here’s the decision itself, which I will read later today but can’t wade through in time at the moment.

I’m not surprised Clay took this one on: He has a very loose, creative style and is militant on the topic of tracing and use of lightboxes by other cartoonists. He’s not the only cartoonist who complains about the practice, but he seems the loudest.

And, in this case, I’m going to give his ass a bit of a kick, in friendship and with the understanding that neither of us are attorneys. But, while the topic is of extreme interest to cartoonists in general and political cartoonists specifically, I’m pretty sure, as Russians politely phrase it, that he’s not exactly correct.

The woman who took the original photo of Prince that Warhol used as “a photographic reference” was paid a royalty for that one time use. But Conde Nast paid Warhol’s estate $10k to create a new, orange version of Warhol’s image for the cover of a tribute issue after Prince’s death.

A major issue is that they were using the image commercially, to sell copies of the magazine — which put them in competition with the photographer — rather than creatively, to offer a critique of Warhol’s art.

Another is that they paid royalties to the wrong person: The photographer had only licensed it for one time use and still retained the copyright to the original image.

Kagan and Roberts dissented in the 7-2 ruling, with Kagan suggesting that Warhol’s use was transformative enough to qualify as fair use, but I doubt their ruling in this case has established just what level of change has to happen.

If I were a cartoonist, I’d wish that, instead of this case, the Obama “Hope” poster matter had gone up the ladder to SCOTUS instead of being settled out of court, since it was not as clear a case of competing commercial intent, contractual violation and post-mortem artistry.

In fact, it wasn’t clear on either side and might have brought about a deeper conversation both in the arguments and in whatever decision emerged.

Or they might have listened to both sides and sent the case to the People’s Court, where, as Opus points out, confused, argumentative contradiction can be more properly adjudicated.

In any case, and repeating once more that IANAL, I can’t see that the Warhol case has any impact on political cartooning, which punches several buttons in the fair use definition: It’s transformative, it’s critical, it’s educational.

Though if I were one of those websites that simply re-publishes a bunch of cartoons without commentary, permission or compensation, I might be a little nervous.

Meanwhile, down in the Antipodes

First Dog on the Moon has had enough bad news and has been looking for more upbeat, if not necessarily uplifting, stories. This one actually comes from the Northern Hemisphere, but I’m crediting it as Australian because First Dog is down there and I like saying “Antipodes.”

I hate podes.

Fiona Katauskas is also from the Antipodes, but, as you can see, she has a little trouble putting a positive spin on things. Still, it’s encouraging to know that moving all the way down there wouldn’t set you free of the problems we’ve got up here in the Propodes.

Difference being that Australia’s lightly populated enough that they seem to take the failures of their government a lot more personally than we do, which is probably to their benefit.

Meanwhile, in Pros & Cons (KFS), Lyndon tries to offer an optimistic branch to his patient, only to learn once again that some people simply project doom in whatever direction they’re pointed.

Which makes me think of Dunbar in Catch-22, who, having accepted that he’s going to be killed on some godforsaken bombing mission, cultivates boredom while off duty, in order to make his short life seem that much longer.

Which in turn is a reminder that, when I was a young man, I thought Catch-22 was about war. Then I got to sample the corporate world. And then I simply grew older and learned more about life.

It’s one of those books that you need to read again every few years to see how it’s changed since the last time.

Juxtaposition of the Folly of Youth

The connection here may not be obvious to you, but it is to me. I don’t think I ever got drunk sophomore year. Indiana had a 21 drinking age and it was much easier to score weed than booze, and weed was a whole lot cheaper, at least until Nixon started Operation Intercept and shifted the trade from small fry grass dealers over to the Mafia, who offered more products and higher prices.

One of the few times anarchy was a much better idea, though that’s not what made me include the Pearls strip. Rather, it made me think of a graffito in which someone spray-painted the anarchy symbol on a brick wall and added “Rules!” under it.

Anarchy Rules.

Reluctantly, one assumes.

Anyway, here’s a song for Andy Warhol, an earworm for you and a reminder of when we all dressed like this but I couldn’t yet grow the mutton chops.

26 thoughts on “CSotD: A marginally qualified lecture on copyright

  1. I take issue with Jones’s use of the word “trace.” You don’t really trace a photo in the way, say, a child might trace a triangle. When you draw from a photo on a light box, you have to make composition decisions (e.g. you can’t draw every strand of hair) just like when you draw freehand. Two artists drawing from the same photo will create qualitatively different drawings.

      1. Most artists through world history have traced. In the workshops of old masters, this was part of the educational process, and images were copied by the artists and their assistants—the subject, the composition, the whole image. It wasn’t until the widespread availability of mechanical reproduction that people got so anxious and demanding that artists be unique imagineers.

  2. A minor nit to pick with Pearls before Swine: “anarchy” means no rulers, not no rules.

      1. Too many rules and too few people to enforce them. Self-fulfilling anarchy is upon us!

  3. First thought: Did Lichtenstein sell any of his swipes for commercial use?
    Does DC Comics or Marvel have a case against Lichtenstein Foundation?

    1. The argument over Lichtenstein continues…
      Excerpt:
      To put it another way. If a musician did this to another musician’s song, we’d call it a cover and demand attribution. If a filmmaker did this to another filmmaker, it would be called a remake. If a filmmaker did this to an author, it would be called an adaptation.

      The only way to view Lichtenstein’s work as transformative is if you view comic artists as unworthy or lesser than that of “real” artists.

      This, clearly, is the view the art community still holds when it comes to Lichtenstein.

      https://www.plagiarismtoday.com/2023/04/12/the-case-against-roy-lichtenstein/

      1. He also did it 50 years ago, and standards were different. Also, when you see the damn panel blown up to the size of a house’s wall, it has a different effect. I’ve never been a defender of his, but yes, seeing a show at the National Gallery of Art revealed them to be transformative. If rather one-note.

        I’m not excusing him – at the very least, he should have said, “….after Russ Heath” in his titles, but re-arguing this year after year only gets us further and further from the original time and concept.

        For context, arguing about similar pieces in his time would have been talking about pieces from the 1910s.

  4. Can we agree that the use of IANAL leaves readers in the difficult position of parsing the obscure acronym and discarding the concept of the author’s personal and private peccadilloes?

    1. No, we can’t. I spelled it out in full the first time, then even referred to that mention on second use.

      Aside from whether it’s any more obscure than BTW, LOL or FOMO, it’s standard journalistic practice to spell it out on first reference, then use the acronym thereafter.

      1. I am not a journalist (IANAJ), but I follow phrases that I acronymize with the acronym in parantheses to avoid future confusion. That seems to be standard practice in legal and engineering documents.

      2. IANALOAnE. But I’ve been online long enough that IANAL is as commonplace a term to me as BTW, IFAIK and YMMV. I have never ever seen anyone write “Laughed Out Loud (LOL).

        I used to argue with my editors that anyone reading an article on cross-border trade would surely know that NAFTA stood for North American Free Trade Agreement, just as baseball fans knew RBI stands for Runs Batted In. I never won the argument, so I was required to spell it out on first reference and abbreviate thereafter. The sports department was never held to such a high standard.

  5. Glad to have two people questioning the meaning of words so I don’t have to look like I’m picking on, or picking a fight with, either of them. And I’ll add that, when the original definition is meaningful, I would vote to preserve it. “Literally” is the opposite of “figuratively,” no matter how people may use it in conversation. “Might have” tries to explain something that didn’t happen, “may have” indicates a guess at something which did.

    In these two cases, accepted meanings overwhelm strict definitions. There is no degree of complexity that creates a distinction between simple tracing and more elaborate copying on a light table, and most people accept that laying paper over an image to copy it is called “tracing.”

    Anarchy technically means no authority and no government, and assumes that people behave in an agreed-upon manner without someone demanding it. The problem there is that such compliance flies in the face of any definition of the noun “rules.” The term “mores” might fit better.

    However, I used the verb form, which specifically means to wield authority, or, in slang usage, to be overpowering in its wonderfulness. So we agree on that definition.

    As for Roy Lichtenstein, Sotomayor, writing for the majority, offers significant discussion of creative adoption of works beginning halfway down Page 28 of the decision, which is linked above and quite worth reading.

    1. Mike, what you seemed to have missed was not your use of IANAL as an abbreviayion, but that it contains the word “anal” in it. That was the punchline there.

  6. Going to college in Indiana in the 60’s you had the option of driving to Ohio for a 3.2 beer buzz.

    1. Didn’t have a car until junior year and the Ohio border was an hour and a half away. If I wanted the level of buzz you get from 3.2 beer, I’d just go to the grocery store and buy some oregano to smoke. Or banana peels, if you believed Donovan (we didn’t).

  7. Let’s not forget that ‘cartoon’ originally had a different meaning as well, namely a preparatory drawing intended to be transferred — ie, traced — onto a final medium like fresco.

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