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On The Subject Of Owls. Really.

So Jeff Rowland got what could be considered a nastygram from somebody claiming to be John White, the man credited with taking the original photo of what’s now known as the O RLY owl. He’s demanding that Rowland take down some of his merchandise for including a design referencing said owl, or he’ll rat Jeff out to The Feds. To the best of my knowledge, the claimant has not been proved to be John White, but for the purposes of this this discussion, we’ll assume it is really John White.

Rowland’s LJ thread has already referenced TGTGDKCOAS¹, and that’s the line of logic I wanted to talk about. John White took the photo of the now-ubiquitous owl, and he does in fact hold both legal and moral rights to that image (we’ll leave aside the question of whether selectively asserting those rights a half-decade after the original posting has created an easement or not). We at Fleen believe strongly in creators rights, so why does this situation not make us want to side immediately with White?

Fair Use:

Section 107 [of Title 17 of the US Code] contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,� such as criticism, comment, news reporting, teaching, scholarship, and research.

It’s comment that’s most important here. Rowland isn’t just dropping the White’s photo of an owl into his design; he’s altered it and placed it in the context of a comment on internet culture (such as it is). As such, he isn’t really incorporating or referencing White’s photo at all … he’s referencing the meme of photo macros.

Let’s take an analogous situation: once upon a time there was a photo of Marilyn Monroe that Andy Warhol then transformed, which David Willis then referenced in his delightful Finger Quotin’ Margo design. The relationship to the original Monroe photo is present, but entirely abstracted by reference to the Warhol transformation, via the filter of Margo (but not Margo as owned by the syndicators of Apartment 3-G). In the same way, Rowland’s Oujia-esque desgin (woodcut look, color scheme, but not a Parker Brothers branded Ouija board by any stretch) has referenced not the original, but rather the original artistic alteration. That’s Fair Use.

And the denial of Fair Use is why White’s claim is annoying all of us at Fleen; claims like this assert that no amount of transformation can ever be sufficient, and that any resemblance is enough to trigger copyright protection. It’s the same logic that led Ira Glass to note that pancakes he witnessed were existing in violation of intellectual property laws, because Disney has made a habit of asserting ownership over every possible permutation of one large circle with two smaller, intersecting circles at the 10 o’clock and 2 o’clock positions. It’s flawed logic on the part of the Disney corporation and similarly flawed on White’s part. The O RLY owl is something different from the original photo, and comment on that cultural artifact (even on — gasp — merchandise for sale) is allowed.

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¹ The Great Todd Goldman/Dave Kelly Contretemps Of Aught-Seven.

If White had painted the ORLY owl, and Rowland had taken his painting, traced it, and tried to sell it, then i’d see a comparison to the Goldman incident. But Rowland has art that is based off of a picture of an owl, like Worhol’s Monroe, based off of a photo. So I don’t see it as being the same as the Goldman incident whatsoever. What, people aren’t allowed to create art using photographs as a model anymore? Or is White trying to claim that his owl is the only owl in the world that can say Oh Really, and so he has the rights to that, like a trademarked catchphrase? I don’t know. This is pretty stupid at first glance, and pretty stupid at every subsequent glance.

If the photograph was taken by an obscure webcomic artist and the t-shirt appearing on a corporate site, everyone would be in an uproar by now.

If the photograph were taken by an obscure webcomic artist and the shirt appearing on a corporate website, there would be an uproar.

Is the IC3 even the appropriate authority for White to complain to? Even if he had a case, it hardly sounds like a “cyber crime” issue. From that alone, I suspect he’s bullshooting. (Yeah, I’m a prude. Deal with it. ;) )

Are the IC3 even the right bunch to complain to? White’s case sounds pretty feeble, but even if it had some merit it would hardly count as a “cyber crime”. From that alone it sounds like he’s just bull-dunging. (Sorry if this comes up twice – the first posting seems to have evaporated.)

Maybe White is afraid that Rowland’s merchandise will take the spotlight away from the Official O RLY Cafepress Shop (check out the selection! It’s incredible…)

As I understand it, copyright holders have an obligation to actively enforce their copyright claim. Failure to do so results in forfeiture of the claim, and the material entering the public domain. So, unless this guy has issued takedown requests to approximately 70 million websites over a span of six years, I doubt he’d have much of a leg to stand on.

IANAL, and all that, of course.

[...] at Fleen, Gary Tyrrell makes the argument that this is an instance of fair use. Specifically, that Rowland is commenting on the presence of [...]

Somah, if I had to guess, maybe you’re thinking of something likethis? Ubiquitous internet or cultural phenomena should be treated differently from most cases where copyright law is concerned, and I don’t think anyone would have a problem with a corporation using something that is part of popular culture in a product or site.

And the denial of Fair Use is why White’s claim is annoying all of us at Fleen

And if anyone believes that this feeling of annoyance is not at all related to Fleen’s brand of fandom, I’ll happily sell them the Brooklyn Bridge.

He took someone else’s intellectual property and tried to make money off of it. The owner doesn’t want him to do that. Whether you guys think it’s fair or not because other people used it without permission is completely meaningless.

Try thinking with your brains and not your fannishness occasionally.

I’m sure if i made a shirt that said “I heart Dumbrella” with snipits of each artist comics, grayscaled and collaged, I would be deemed the anti-christ. Permission not granted by artist. Just because its on the internet does not make it public domain kids.

Makes me want to buy rights to the kitten.

likewise, just because it looks like it’s a snowy owl, doesn’t make it the “Orly owl.” if you go to http://wigu.livejournal.com/125035.html there’s alot of really good points brought up by the posters there. parody is allowed under the fair use law. heck, the image of the owl on the mouse pad doesn’t even say O Rly? so how is that ripping off the original photographer?

William, I think you may not be as familiar with the concept of fair use as you think you are.

Or maybe you’ve overlooked the definition in your rush to condemn a Dumbrella member! I know that you are a bitter, lonely, jealous man isolated in a far-away country but even you must recognize that the work is a) transformative, in that it does not use the original photograph, b) passes the amount and substantiality test, int hat it only resembles a portion of the original photograph, and does not use it in its entirety, and c)has zero effect on the value of the original work. In addition jeff’s work could easily be considered parody.

Basically this would be up to a judge to decide, it is not as clear cut as you make it to be and I personally think Jeff is within his rights here.

I have learned that anything you say about Dumbrella should not be taken seriously either. You are a troll who would do better to spend time working on your comics than attacking your fellow cartoonists on the internet. I dare you to come and meet any of the people you talk trash about at a convention and spend five minutes talking with them and see if your perspective is not changed.

If it’s the guy’s image and it was not sufficiently altered, there’s a case there. Doesn’t matter who we like or not, it’s the same as publishing a book full of Google image search photos or a comic comprised of nothing but Megaman sprites.

Dear Jon Rosenberg:

Congratulations on owning that guy. I would point and laugh at him but this is the internet and I really don’t know how to effectively do that. I don’t know how to convey to him the amount of shame he should be feeling without making eye contact and then finding myself awkwardly unable to meet his gaze, thereby expressing that his shame has in fact passed on like a terrible virus to all people around him.

Also, in regards to a much earlier comment, big corporations suck. That is why we hate them. Jeffrey Rowland does not suck. In fact, he is awesome. We do not hate him. He is not thoughtraping poor struggling artists. He made a mousepad. No one is very sad about this except for one dude, and that dude is not very cool. Therefore, we should all have cake.

CLEARLY.

Thank you.

Altering an image doesn’t nullify the copyright. That’d be like saying that using samples from someone else’s music, and then putting them through a distortion filter, makes them ok to use.

That, my good friend, would be total bullshit. At least Rowland’s being relatively big on the matter, admitting wrong about something that almost no one would’ve thought twice about from the start.

That’s just what we shouldn’t be paying attention too. It shouldn’t matter whether it’s a corporation or a struggling artist, or a webcomicker we love, no one should get away with theft. The case needs to be judged without regards to how we otherwise feel about the parties.

Honestly though, everything I’ve learned about appropriation and so on makes me think Jeff is on pretty safe ground. It’s a changed image, being a drawing, and it could be easily construed as a parody.

(My comment was directed at Androo, just in case anyone was confused).

Ninja-Bot, there is a difference between simply altering an image, and redrawing a small part of it (which is what I’m assuming Rowland did).

I think Rowland is definitely on safe ground legally, but as Sohmer indicated, that’s not the whole of the issue here. As creators, we all guard our intellectual property very carefully, legality be damned. Shouldn’t we afford this “creator” the same right?

Altering an image doesn’t nullify the copyright. That’d be like saying that using samples from someone else’s music, and then putting them through a distortion filter, makes them ok to use.

Ninja-Bot, you’re mistaken, transforming an original work into something new is allowed under fair use in many instances. Are you from 1970, perhaps? I know hip-hop was not around then, you may not be aware of it.

Here’s a small bit that explains transformative use, I snagged it from here:

Courts also favor uses that are “transformative,” or that are not mere reproductions. Fair use is more likely when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, and perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.

If you have some reason to believe that what you said was true, please, back it up with some actual law? I would love to be educated if I am mistaken about this.

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If you would like to incorporate my work into your products, I would like a fair share of the profits. Nothing more, nothing less.

[...] taken by Pelican used under Creative Commons as John White who made the original ORLY? owl is rather litigious – the inspiration for this image is this excellent animated GIF which has gone into GYBO [...]

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