The unusually high volume of comments on a particular recent post from people without a history of posting at Fleen has made the spam filters go a bit wacky. If you’ve had your comments disappear (it’s happened to several posters) or are getting denial notices when you try to post, please use the contact page to let us know and we’ll clear that up.

This has happened before, during The Great Todd Goldman/Dave Kelly Contretemps Of Aught-Seven and during the MyFridj story. The only real alternatives to this occasional unpleasantness are:

1. Requiring moderation on all comments
2. Requiring accounts for all posters
3. Allowing a flood of blogspam

The first is a pain for me, the second is a pain for you, and the third is an offense against God, Man, Nature, or whatever you personally believe. So we’ll have these situations from time to time, apologize in advance, and thank you for your patience.

So last night, Internet Jesus tweeted about a particularly egregious assualt on an artist’s work. John T Unger doesn’t work in webcomics, or even comics in general; he makes outdoor fire-containment kettles (think “fireplace you can plop anywhere in your back yard”). He’s known for the distinctive look and feel of his work, and has registered copyright on his designs.

An imitator¹ (no link, he gets no publicity from me) has been selling knock-offs; Unger contacted him and provided proof of copyright, and asked said imitator to please work only with original designs. Imitator responded by filing a lawsuit seeking to overturn Unger’s copyrights so that he doesn’t have to stop. And now the punchline: because the imitator sued first, Unger must defend the suit or it’s automatically decided in favor of the plaintiff. It’s a naked attempt to force Unger to deplete his resources (he’s spent more than $50,000 so far) in an attempt to say, Hey, you’re not allowed to steal my stuff and have a court validate you.

As creators of Intellectual Property (those of you that are) and/or fans of those that create said IP, you should be appalled. Copyright and trademark require “vigorous defense” to show that you haven’t let them lapse, but I cannot believe that the intent of such a requirement was to permit naked thievery. If you’re ready to act on that anger, Unger’s using Kickstarter to fund his legal expenses; rather than just ask for donations, he’s created a new line of tabletop sculpture available for certain pledge amounts (and other rewards at lower levels). This situation is pissing me off, and I’m asking you that if you can’t kick in any money, at least read Unger’s account and talk about this. The glare of publicity is probably the best weapon available in this fight.

• Whoa, two updates from E. B-White? No, not Websnark updates (c’mon, guy’s been sick), but updates to the long-dormant (like three years dormant) photobased webcomic The Adventures of Bridadier General John Stark. Exciting! Bold prediction: General Stark discovers Mayan calendar prophecies (after all, there is a precedent for such in webcomics) just in time for either a third update, or for time to end in 2012, whichever comes first. C’mon, Eric — prove me wrong!
• Looks like WOWIO payments for Q2 2008 are still going out; just got an email from a creator that he was just paid. It would be caddish of me to point out that we’re now in Q4 of 2009, but hey — at least people are getting their money.
• If you’ve noticed a dread, palpable chill in the air, if the very atmosphere over New York City seems somehow befouled and borderline evil, there’s a reason. All that is unholy celebrates the unbirth of the darkest creature yet to tear its way into our reality, one that spews forth the very nightmares that will rend the world piece from piece, leaving all who encounter it gibbering pools of tears and sorrow. Also, there is probably cake.

  Happy Birthday, Andy.

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¹ Feel free to substitute alternate descriptors for this individual; suggestions include “–––––––”, “––––––– –––––––”, “–––––––” and “How Do You Live With Yourself?” Redactions because Unger has specifically asked that derogatory language not be used.

Maybe on the event itself, but the discussion rages on.

Firstly, I’ve received helpful communiques from both Xaviar Xerexes and Lore Sjöberg on the matter of case law. X-man (who, unlike myself, is a lawyer) shares that there’s plenty of case law on Fair Use and threatens his already-stretched family time with the notion of putting together a primer on the topic. Sjöberg helpfully pointed me towards Dr Suess Enterprises v Penguin Books USA, which both corrects my belief that there isn’t case law concerning third-party parody, and settled the question against such being protected by Fair Use.

But the more interesting communication came last night (well after deadline) from Kelsey Armstrong, identified as the infringing party. An excerpt you may find enlightening:

I already appologized to Scott Johnson yesterday right after I saw what happened. I had no intention to rip anyones work off … I just started making shirts and stuff for some fun. Every now and then I would find stuff on google and just post it. I googled “geek” and came up with 56 Geeks. Not bothering to check where I got it from for the owner, any copyrights, etc., I just naively took it from google and posted it….

Like I said, I apologized to Scott for this whole thing and he seemed to understand where I was coming from. I was just being stupid with the power google gave me.

Salient points: it was more from a lack of understanding than from design practices that encourage the rapid development of visuals without regard to origin (cf: “artists” who pay others to come up with designs for them, then produce the work in question for large dollar figures; figures as notable as Todd Goldman engage in this practice) that caused this situation, and Ms Armstrong realizes her mistake.

I feel really stupid for this whole thing, and … although many people seem to think of me as the biggest asshole on the planet, I hope at least you can see me differently, as I hope Scott Johnson does now that I have emailed him. And no, I wont be a repeat offender lol.

Just a thought here, take it as you will. Ms Armstrong has learned a valuable lesson, and it’s one that I think a lot of teens can stand to learn at that age: the ability to recognize when you do something dumb is a valuable life skill. Anybody that’s tossing barbs towards her might do well to remember what idiot things they did at that age (I you don’t look back to that age and realize that you did dumb stuff, you’re fooling yourself) and back off. It took some considerable courage to:

• Contact and apologize to Scott Johnson
• Resolve the situation so quickly
• Reply to my email with a sense of responsibility and desire to do the right thing

In some ways, it would have been much easier for Ms Armstrong to be a defiant jerk all around, and that would make it easy for all of us to dogpile on and hate her. As it is, let’s agree to chalk this one up to a mistake, and at least take the comfort that the example may teach others the lesson about what you can ethically and legally sell, and what you can’t. In the long view, this turned out pretty well all around.

So, it all started a bit less than 20 hours ago (as of this writing): Scott Johnson of Extralife noticed a Zazzle store (it’s kind of like CafePress, except they can also print postage stamps) was selling a mug and a mousepad (and possibly other items) that lifted the art from his 2007 print, The 56 Geeks.

Word spread rapidly, as it is wont to do on Twitter. The store in question led to minor information about the proprietor, which led to a MySpace page and eventually a store page with contact info (note that depending on your browser settings, that last page may either immediately roll over to Zazzle, or just close). A sample of that store page, to give you an idea what we’re dealing with:

Here at Poison Art, YOU are what matters. The loyal customer, the one who appreciates the genious [sic] behind the artwork. At Poison Art we are all about supplying you with some of the most random, but most attention grabbing shirts, shoes, accesories, and more. There is no real theme to our products, just COOLNESS, so that you too can be cool. We are fairly new, and still getting ourselves organized, so the products are especially random at this point in time, but please, bear with us! When we get more products out there, it will be easier to sort through and create more understandable categories of merchandise.

If you would like to navigate our zazzle site, you can go directly through that link above, or use the quick links below. Hope you enjoy =)

-Poison Art Designer- Kelsey Armstrong

Okay, so Kelsey Armstrong is not so much of a “genious”, not much of a designer, and 18/F according to MySpace. Given that teens with access to the internet aren’t always up on the latest in intellectual property ethos, I sent a quick email (address withheld; no need to abuse the girl):

I followed some links at Zazzle to get this contact address. There appears to be a remarkable similarity between a design that you are selling and a print by webcomic artist Scott Johnson of “Extralife”. Any comment?

No reply as of this writing (about 19 hours), but as of 15 hours ago, the offending designs had been removed from the Zazzle store without comment. Contacted for comment, Johnson replied:

I get so disenchanted with “the system” when stuff like this happens, but then I remember, the system is a great big chaotic freak show, and I am lucky I don’t find that sort of thing every day. :)

What is it exactly that makes people think that because they found content created by someone else online, that they really liked, they have license to use it as if it were their own and sell things based
on it? It seems completely insane to me. For example, it’s one thing to share songs online with other people, it is another thing entirely to sell CD’s, t-shirts using other people’s music.

At this time it’s unknown whether Ms Armstrong actually made any money off of Johnson’s design (and it’s probably safe to assume that the use of Johnson’s work was more from ignorance of how artists rights work than from actual malice aforethought, thus we are unlikely to see her as a repeat offender), but we can at least take some lessons away from this:

• Regardless of law, policy, or common courtesy, it will in all practical respects be up to the owners of IP to hunt down those who would appropriate from them.
• The willingness of people to back their favorite creators and take appropriators to task means that time from discovery to resolution is shrinking. The Great Todd Goldman/Dave Kelly Contretemps Of Aught-Seven took 30 days to shake out (from first report to press release that everything was settled).

  The Great Jess Fink/Hot Topic Unpleasantness of Aught-Eight took 11 days. This one took about five hours from discovery to resolution, and hopefully each time we go through this, the word leaks out a little more — take inspiration, but draw your own goddamned art if you’re going to sell it.

• We desperately need some case law to settle exactly what constitutes “Fair Use”; clearly, any reasonable reading of current US law (those of you in less freedom-loving countries are on your own, and in any event, I Am Not A Lawyer) would say that you can’t just life an image and sell it as if it’s yours. But what of transformations, or visual quoting? I’m thinking here of Jeff Rowland’s Internet design, which got a C&D from the photographer that originally captured the image now known as the ORLY owl.

  Personal opinion, Rowland’s design quoted the owl (and ceiling cat, and the general look and feel of the Ouija board), but in the service of commenting on/parodizing general internet culture, which is Fair Use. Or it’s not. There’s zero case law on third-party parody (c.f.: Penny Arcade and American Greetings) and we need it settled; unfortunately, the way to get case law is to first have a case, which means somebody gots to get sued.

In any event, this situation has resolved itself quickly enough (and about as well as could be possibly expected), so let’s call it done. Barring a repeat from Ms Armstrong, it doesn’t even require the coining of a The Great ____ of Aught-Nine to enshrine it in the annals of webcomics.

Quick addition to yesterday’s item on Xeric winners with award work online — although I didn’t find it, Alexander Danner pointed out that Tymothi Godek‘s “!” was published online in its entirety, and that the thumbnails for “!” may be found online (Blogspot and Livejournal flavors), along with a writeup of what “!” is about. Fleen regrets the omission.

The question naturally arises, what would be an acceptable resolution to the Jess Fink/Hot Topic situation? As I see it, some of the remedies proposed last year in the Shmorky/Goldman don’t quite apply (given that Hot Topic aren’t selling $5000 versions of lifted artwork, but rather a whole mess o’ t-shirts). Here’s what I came up with as model solutions — feel free to comment.

1. Hot Topic enter into good-faith negotiations with Jess Fink and Threadless to determine an equitable compensation for the theft of the design; this should not be based on the number of shirts they sell, but the number that HT has stocked into their inventory.
2. Hot Topic should feel free to seek compensation from the vendor whose designer felt the need to lift so blatantly.
3. Hot Topic should let us know what they’re going to do to help prevent situations like this recurring regularly, as they have been.

Now, Hot Topic are of course a very large corporation that need not necessarily pay attention to what some artist somewhere is saying; then again, Todd Goldman was widely reputed to be a $90 million/year shirtmonger, and yet attention and behavior changes were forced in that case.

If you wanted to let Hot Topic know your feelings on this matter (and missed the alt text in yesterday’s post), note that Hot Topic has a contact page, complete with email, 800 number, and live chat with customer service reps. A polite inquiry along the lines of, Can you tell me how Hot Topic will be dealing fairly with artist Jess Fink, whose stolen work you are presently selling? that shows up in the call logs a hundred times or so could have a damn near immediate effect. Go make me proud.

Multiple people wrote to me about this, but credit Carly Monardo with getting there first.

Okay, for historical context, read here and work your way forward.

For “Shmorky”, substitute “Jess Fink“. For “Todd Goldman”, substitute “Hot Topic“. For my take on the whole situation, allow me to quote Kris Straub on one of the past iterations of Wikimesses: That’s pretty goddamn weak.

For lawsuit threats, wait a week until after the story has died down, then mail them to the contacts page.

So much to talk about these days, what with the WCCA nominations, and How To Make Webcomics up for pre-order (Hey, Brad and Scott? You might want to put the book up in your stores like Kris and Dave have, ’cause I went looking to give one of you guys money yesterday, and I went with the first one who made it possible) and Ryan North‘s Goldmanesque situation. And that’s before yesterday’s trip to the local comics shop resulted in purcahse of volume 1 of Dirk Tiede’s Paradigm Shift and yesterday’s mail included Dave Roman sending me three (count ’em, three!) Nickleodeon magazine all-comics issues, none of which I’ve had a chance to read yet.

That’s because I’ve been reading and re-reading Jellaby. Want the short version? Kean Soo has put together a book that’s equal parts Owly and Amulet. If that’s not not totally awesome-sounding, I’m sorry — we can’t be friends anymore.

The longer version is that Kean Soo manages a number of things here that would make me inclined to like him a great deal, even without the bond of right-hand rule brotherhood that we share. In contrast to the usual comics convention of putting lots of deep, saturated color on the page (or the screen), Soo has elected to go with a subtle, almost ink-wash approach. That low contrast, far from making the pages hard to read, forces your eye towards the details that he wants you to concentrate on.

Case in point, from the online archives: Portia, our heroine, has a set of blinders on like you wouldn’t believe. Soo could spend eleventy-six panels of exposition telling us this, but instead shows it with an incredibly subtle and intuitive look at her emotional world. So heading down the hallway at school after a talking-to from her teacher, Portia’s entire world is washed out and pale, except for the much bolder window immediately around her. Looking at other people, walking past them, they suddenly come into sharp relief, then fade after she walks about two steps onward. And as beautifully as it works on your screen, it does so even better on the page.

The book just oozes that level of craft — Soo never tells us what he can show, and has taken the challenge of working with an extremely limited color palette and turned it into a strength. Everything in Jellaby is dominated by shades of purple, from motion smears (check out the very solemn head nod here) to seriously creepy dreams; that one basic color can convey so many moods was a happy surprise for me. And when a decidely non-purple color show up, the effect is arresting. Those are some mighty good lookin’ carrots there, Jason. Oh, and did I mention that it’s hilarious? And that Soo conveys emotion in facial expressions better than anyone this side of Tom Beland?

Best of all — Jellaby clocks in at nearly 300 pages, making it almost three times as long as the online (and sadly hiatused) version. Tensions build and release in the story, leading up to a cliffhanger that’s got me counting the minutes to the next installment (which I’m told will also be in 2008, but you never know with printing schedules). If Soo’s editors and publishers are smart, they’ll keep him happy and the rest of us well supplied with our favorite purple whatchamacallit.

Hey, did you know that there were some significant things to happen in the world of webcomics in 2007? Well, it turns out that there were, and here are some of them. Despite the fact that they’re numbered, these are in no particular order of importance.

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 [via the Wayback Macihne; the new Fair Use Index may also be consulted]:

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.

Steve Troop is offering a deal: more webcomic in return for some vote-related love at the MTV Movie Awards for his Snakes On A Plane/Shatner On A Plane/puppet mashup. In other news, it’s your last chance to get a SOAP shirt from Jeff Rowland, who has declared them newly ironic.

Help Liz Greenfield win stuff for having awesome hair.

Don’t forget: xkcd is daily this week, with an actual story (but don’t worry, still plenty of math, at least today).

Karen Ellis reminds us that there’s never a bad time to say nuuuuucleeeear … WESSELS.

And finally, as it’s now been officially a month since we were threatened with a lawsuit (or, more precisely, a month since we asked exactly what was actionable in our coverage of the Dave Kelly/Todd Goldman story … that chirping of crickets you hear is all the reply we’ve gotten), we at Fleen are now forced to conclude that Goldman’s lawyer believes there never was anything defamatory in our writing.

To commemorate the occasion, we have one (1) Dear God Make Everyone Die t-shirt (size medium) up for grabs; with the AwfulMart down at the moment due to postal rate retooling, this could be your only chance to get one. Anybody that emails to the contact link up and to the right by midnight, 31 May 2007 (EST) with the word “shirt” in the subject line gets entered into the random draw.