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Saturday, May 7, 2016

What is Fair Use and What is Parody and Why it Matters

Last night's post kicked up some dust, so let's define some of the issues in question.

While "Fair Use" is a right (as per a US Federal Court ruing) what exactly IS Fair Use?

Stanford University Library defines Fair Use as follows:
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement. - See more at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/#sthash.UPv2xScF.dpuf
So, what about Parody?
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original. - See more at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/#sthash.UPv2xScF.dpuf
I suppose we now need to look at the actual books in question from last night's post.


I fail to see the parody intended. It also does not appear to be "transformative", unless you count a total cover swap as transformative, but certainly not in the manner defined above.

Let's step beyond for a bit. Here's an ad for The Front:


Looks awesome, right? I'd buy that.

Here's the source of the art:


I wonder if Vadim Makarenko knows his artwork is being used?

But that's fair use, right? Er... no.

So, what about this image from The Front itself? (page 18 for those following at home)


I found it here:


I also found it elsewhere on the net. It's a bit of a meme. That doesn't mean it's in the public domain.

Believe it or not, I get it. Small publishers doing it for the joy of the hobby and pennies of profits. It's not like folks are making notable amount of profit off of this. It's just a lark. Shit, it's simply a trade between friends. What's the harm? It's all in fun. No one takes this shit seriously, right? I mean, so long as it's a "hobby" it's got different rules.

Sadly, such attitudes will doom this hobby of ours. Artists, writers, publishers - they are all underpaid in this hobby and the world at large. Using the work of others without permission not only cuts into the monies the underpaid barely make, but it gives the hobby as a whole a black eye.

Certain smaller publishers seem to do it right by their artists all the time. +Venger Satanis sources amazing art for his work. Venger is not making a fortune doing what he loves but he's doing it right (even if we don't always agree)

The Tavern's banners are either donated or commissioned. While I'm not going to state what I paid for any of the individual banners, I've paid upwards of $1,300 in total for banner art to date. I've spent over $750 for stock art. I'm simply a blogger trying to do right by the artists and creators in this community of ours.

Doing things right is not only a good thing to do, but it's the only way for our hobby to succeed.

34 comments:

  1. Before putting anything in a FOE product, I will either
    1- pay for it
    2- make sure it is usable through creative commons (non-commercial) and usually offer the artist a copy of the book
    3- use public domain
    Exactly for the reasons you mention above. I want artists to keep doing their thing. Good post, brother.

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  2. Being a 1st edition AD&D loyalist, and knowing full well that my own enjoyment of the hobby is not contingent upon whatever WotC chooses to do with the D&D IP (or whether or not artists and creators continue to do their thing,) I still very much enjoy seeing artistry and creations that are genuine and truly inspired. As for The Front, that's just stupid, what they did with the Sgt Rock art. Joe Kubert is probably doing somersaults in his grave right now. Thank you, Erik, for exposing them for the frauds that they are.

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  3. You are NOT a Judge ... If as you say this is a legal issue then leave it to the experts. If this is an Ethics issue I realy really, really hope you took this to Mark FIRST, Or are ethics entirely subjective?

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    1. Never said I was a judge. I've been referred to as an "opinionated fuck" which may apply here. My blog. My soapbox. There are many like it, but this one is mine. Had no idea I needed permission to post my opinions and observations.

      Yesterday's post didn't point any direct fingers, but Ib had enough tagging on G+ explaining that this was "fair use and parody" I thought it needed to be addressed.

      BTW - notice I allow dissenting comments and ones that attack my integrity?

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    2. i am an attorney and i can say Erik's analysis, while certainly simplified and not accounting for the miles of gray area that can be dithered about in court, is pretty spot on. not sure why you feel the guy has to be "a judge" to weigh in on this topic; that opinion alone makes me raise an eyebrow regarding YOUR judgment.

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    3. One needn't be a judge to see someone used someone else's artwork and there is nothing "parodic" about it. It's flat-out copyright infringement.

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    4. "I realy really, really hope you took this to Mark FIRST..."

      Excuse me? If you put your work out in public, you open yourself to PUBLIC criticism. Tenkar didn't owe this guy any kind of private discussion.

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  4. As an artist and a lawyer I would also recommend that any business person who purchased content they did not specifically have created in-house at the very least have a written transfer of copyright or license executed well before spending a wad of $ on publishing. Make sure it is prepared by an I P lawyer.

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  5. Although i've not read the chat, it's worth noting that The Front is entirely based on The Black Hack (Beta - ie before i'd even officially released it) with some minor additions (I was only made aware after a review was posted saying as much, every other 'hack of the TBH has sent me a courtesy copy as, you know, a courtesy for using the fruits of my labour)

    At one stage the game's description on RPG Now was _verbatim_ the description from TBH's RPG Now page - until i requested it be changed. I didn't cause a fuss, because its OGL, the spirit of DIY gaming and it not damaging the (considerable) efforts of Peter and myself - but you can draw your own conclusion as to what this all means.

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    1. David, thank you for your frank and honest commenting. It's much appreciated, not just by me, but by the readers of The Tavern.

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  6. Amen. There's no way this use of art is Fair Use. There are plenty of public domain war images out there that could have been chosen. It's a shame, too, because an OSR game with tanks sounds awesome.

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  7. What exactly would be parodic here? It appears to be a direct reproduction if the original art in both cases, with some text slapped over it, but even the text is completely serious and no parodic in any way. The publisher had better hope he has some signed contract with the copyright holder. Warner Bros. isn't exactly short on lawyers.

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  8. Agreed, people deserve to be paid for their work and properly credited. I do my best to make sure all art I use on my journal is properly credited and the same for my upcoming RPG product (for which I have also commissioned art).

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  9. Wow there is no argument here.. this is NOT fair use and this guy needs to pay for or at least get the permission of the artist to reuse it..

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  10. I can tell you we had to drop a proposed KODT cover recently that was a spoof of Guardians of the Galaxy because the artist informed us Disney had gone after him for similar parody on the same IP. In both cases the art was clearly a parody but if a lawyer backed with money sees it differently? Are you going to fight that battle? In our case at the end of the day it simply wasn't worth poking the bear.

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  11. Weirder still is the utter laziness. An apparently WW2 game and the best cover they could steal references JEB Stuart and the Civil War? Plus there are tons of war comics covers that have fallen into the public domain since the 40s-60s from publishers who never bothered to renew or went defunct or both, so if you really need to take someone's art there is plenty available legally and this is just a lazy swipe all around.

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  12. Weirder still is the utter laziness. An apparently WW2 game and the best cover they could steal references JEB Stuart and the Civil War? Plus there are tons of war comics covers that have fallen into the public domain since the 40s-60s from publishers who never bothered to renew or went defunct or both, so if you really need to take someone's art there is plenty available legally and this is just a lazy swipe all around.

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  13. After reading these posts I went to remove the title from my cart on Drivethrurpg only to discover that they had beaten me to it.

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  14. No one stole anything. This was for a private item between friends. Mark Hunt and Michael Fuller had the item put together between friends. The artwork was used as a favor between the parties in question; it has never been nor will it ever be for sale period. The end. So the next time you all get you're panties in a wade over said game why don't you check with the parties involved.
    On a related note Erik, you've given Mark Hunt & The Front rpg a huge signal boast. The community on G+ wants to give you all a big thank you!

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    1. Eric, nice of you to join the conversation at a place I can post (apparently I'm blocked on the relevant G+ threads)

      This WAS a sale, as "a publisher" gave "a customer" the books in question. That is irrelevant, as this was not a parody and decidedly not fair use.

      I thought Mark was threatening to delete the community. Glad he decided to let the community stand on its own by the members.

      Why isn't said game currently available on RPGNow?

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    2. As far as I'm currently concerned at this point this whole discussion has taken up way too much of my time at this point. But I will say this much. Erik the game is up on Rpgnow.
      http://www.rpgnow.com/product/178719/The-Front-World-War-II-RPG

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    3. The commercial version uses "The Battle of Pantano" by Donna J Neary for the cover. Was Donna credited, let alone compensated?

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    4. But i was down for a bit. You yourself asked that question on G+

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    5. I did a reverse image search on the "Battle of Pantano" painting and it's in the public domain. I don't have a copy of The Front but I'd be curious to know if the artist is credited.

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    6. It's not credited. Nor are the photographs used, which are also public domain as they are owned by the US Govt.

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    7. Your definition of stealing indicates English is a language you are still learning. Taking something that doesn't belong to you without paying for it or being given it by the owner = stealing. There you go.

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    8. Doug, what source indicates it's in the public domain?

      The artist is still very much alive.

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    9. If the work was done under government contract (and I believe it was) it's public domain

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  15. Technically speaking, while it is polite to give credit for works in the public domain, it is not required.

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    1. Agreed, crediting was not required. Nor, as another pointed out, was anything besides referencing the Black Hack in the OGL required.

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  16. I'm still waiting for someone to freak out (in a public way, that draws a lot of attention) to the numerous uncredited, illegal art uses in DM's Guild products. There seems to be a little less oversight there.

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  17. Thanks for the shout-out, Erik! I just got back from vacation and my parting gift from the cruise ship was a nasty flu virus that infected the entire family. :(

    In the past, before Kort'thalis Publishing, I came really close to the line - taking images I found off the internet and using what feeble tech skills I had to barely manipulate them. Just one of multiple mistakes I've made over the years.

    Perhaps the greatest sin of all is pride. In the end, pride is what keeps me searching for high quality art and artists to illustrate my books. I want people to like my stuff, to be impressed, and recognize my creativity. I want to elevate the content... and the entire DIY/OSR movement.

    Pride can defeat ignorance, laziness, and fear. So, for those thinking about self-publishing, I recommend taking a little extra time and money, going those few additional miles and making something special and personal, something you can be proud of.

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  18. I'm still a little confused as to exactly what transpired to cause concern, and whether or not the issues have been corrected at this point. I don't need to know the first, but if anyone can fill me in on the second, I'd appreciate it, as I am pretty intrigued by the concept of The Front but woud like to know that the thoughts of the community have been taken into account before I purchase it.

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  19. You can actually buy some good art off of Deviant Art. Most of the artist have set rates and legal contracts. It is mostly what I use. The Dice Image may not be public domain but I would bet anyone with any talent could draw it in Photoshop. Dice only come in certain shapes so claiming original artwork you would need to pay Lou Zocchi.

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