Copyright for Artists - Lisa Congdon artwork

Some of you may recall my post Copyright for Artists - Congdon vs Cody Foster published  after a mini viral storm about copyright infringement on the Internet generated by Lisa Congdon (Today is going to be awesome).

[This post was revised and updated 26 July 2016]

This was followed up by two posts by Brian Sherwin:

• Let's Have an Ar(t)gument: You stole my idea! Lisa Congdon vs. Cody Foster & Company which reviews the legal arguments and the potential evidence. It seems there are lots of potential issues the claimant will need to address
• Lisa Congdon vs. Cody Foster: What about the photographers? At this point it became clear there was rather more to the story when it comes to alleged "copyright rip-off"! Again the images - of photographs compared to illustrations by Lisa Congdon - are very persuasive.

The latter has now generated 550 comments and is now one of the most extensive discussions I've seen on the Internet related to copyright infringement, the rights of photographers not tobe  copied and the whole thorny topic of derivative works

For example - Comment 424

I think it's fair to say that many artists, maybe even the vast majority of artists, are dangerously unfamiliar with copyright law. They think such things as "It's on the internet, so I can use it."

Or "If I change it 10 percent (or 20 percent or 30 percent) then it's legal."
Or "I'm changing it from a photo to a painting. That makes it okay."
Or "My work is stylized (like Congdon's) and because I don't work realistically I can use photos without violating their copyright." (Try telling that to Shepard Fairey.)
Or "If I make a sculpture (or an ornament) from a photo, I'm changing it from 2D to 3D, so that's not a violation."
Or "I'm only using this photo in a larger work, so it's okay."
Or "I'm only using a portion of this photo, so that makes it okay."
Or "I'm just a small time artist." Or a hobbyist. Or my heart is pure. Or everyone does it. Or no one will notice.

NONE of these is a defense in a court of law if you rip off a copyrighted photo to make your artwork.

One set of comments related to an artwork by Mathilde Aubier which it appeared had been copied by Lisa Congdon. The allegations - and the artwork - have now disappeared from view but the record of what happened remains in the comments.

A court case  about the appropriation of a photograph has also been quoted - the reference is Friedman v. Guetta – Copyright Infringement, Fair Use, and “Meaningless Art.” - and is very definitely worth a read if you are an artist who copies the photographs of other people.

However there have been further developments and one of them, from Thomas Allen (Thomas Allen Online) caused my jaw to drop..........

This is important and it's educational - particularly if you're not too hot on copyright!

Beware - this is a very long post with lots of links.  

Go get that hot drink and find a comfy chair now!

More identified sources

Finding the reference source for Congdon artwork seems to have turned into something of a hobby.

On Lisa Congdon vs. Cody Foster: What about the photographers?, one of the comments - Copyright comment 377 - lists a number of sources for images which apparently have been used by Congdon.  Although to be honest, a number of the alleged sources have themselves picked the image up from somewhere else.

Thus we have the comment

Lisa's Highland Cow;
http://www.etsy.com/listing/59806832/highland-cow-print
Highland cow photo (This image should be flipped horizontally);
http://www.menopausemaniac.com/03-28-2012/pink-slime-contributes-to-economic-decline/

Whereas I took another look and found the Balnafettach Farm website which has highland cattle and seems to be the original source - see its breed history page.  Take a look at the highland charmer on the right hand side!

A comment by the LA Times

This article Cody Foster responds to copycat accusations  in the L.A. Home section and highlights a statement by Cody Foster

"Cody Foster & Co. acknowledges that a small number of products in our catalog of more than 1,800 items bear strong similarities to ones being sold by others. When this issue first came to our attention in mid-October, we immediately pulled those products from our catalog and offered refunds to any of our customers that asked for them. We deeply regret any harm we may have inadvertently caused to our customers and the artist community at large. We are instituting new processes and procedures to reduce the likelihood that this happens again.
"Our explanation for how this happened is simple, though not excusable. Unfortunately it occurs regularly in this industry. Documenting 'artistic inspiration' for reproduced craft products -- particularly for those based on folk designs -- is a difficult process and presents a huge challenge for suppliers, artists and retailers alike. Our own designs have been directly lifted by other suppliers on many occasions and we have generally found straightforward ways to settle amicably between parties."

Note there is no reference to who the injured parties were or whether there was any settlement which went beyond an apology and a withdrawal of the stock from their store.

A comment by Consumerist on design piracy

This post Cody Foster & Co. Speaks Up, Insists They Didn’t Steal Designs On Purpose comments on the article

A comment by "You thought we wouldn't notice"

This post The Congdon/Foster Plot Thickens, posted 5th November, contains this point

As long-time readers of this site know, the marketing of a new work by using an underlying work is only permissible with the permission of the creator of the underlying work. Otherwise, the artist for this derivative work would have protection only for what was added to the work and would not be able to monetize the work in its entirety. The photographs that were apparently used as source material by Congdon have not yet been authenticated, and it is unclear as to whether she obtained consent before using them, but if they are authentic and she did not obtain consent it could pose issues for any case she might bring.

Which is the conclusion a number of us arrived at some time ago.

Note that it precedes what comes next..........

Copycat - a new comment by Thomas Allen

Last month, Thomas Allen (Thomas Allen Online) weighed in with a very cogent and damning blog post called Copycat on 13th November - ie after the Cody Foster statement.

I am not exaggerating when I utter the cliche "my jaw dropped".

Read it for yourself. Make sure you click on any one of the images he has in the post.  He has:

• identified the photographer and/or the site where it can be seen for every reference "source". Some are places like Wikipedia and stock image sites, some are paintings by artists 
• matched it with an exact copy of what appears to be a Lisa Congdon artwork
• then flips back and forth fast between them such that you're not quite sure whether you're looking at the original photo or what appears to be an obviously traced animal/person/object.
• identifies every instance of a failure to credit the original artist as per licence and/or creative commons

Some of the examples used are old photographs which would definitely be out of copyright. Others are much more recent and will still be subject to copyright.  The issue as always is not about whether she traced or not but whether she had permission or a licence to trace from images which enjoy copyright protection.

Look in particular at the last example

Look at the original on the Thomas Allen blog
You can see where he has drawn horizontal and vertical lines between
the photograph identified as copyright Mark McCullough
and the gouache painting by Lisa Congdon used for a book cover
and now available as a print in her Etsy shop

For this one - it's definitely worth noting that:

• the only place where the McCullough image can be found online postdates places where the Congdon painting can be found online.  
• I can't establish from the image whether the McCullough whale is a photo or a painting and/or when it was created.  
• I have however taken a good look at the NOAA Photolibrary re. whales and note that there are very few images of a whale under the water.  Here's a genuine one - note the difference in quality.
• I did find a fisherman in Alaska called Mark McCullough who posts his photos on Deviantart and he has some ace wildlife photos - so maybe the original was his?  
• However it seems much more likely that Mark McCullough is a talented artist living in Maine who is also an endangered species biologist working for the U.S. Fish & Wildlife Service.

Just thought I'd mention this in the interests of a balanced perspective!  It demonstrates that what seems like fact might have a different interpretation when ALL the facts are known. However Lisa Congdon has refused to comment on the post.

A comment by examiner.com

This article also appeared on November 15th - Lisa Congdon, artist who accused Cody Foster, herself accused of copying

A comment by SF Weekly

The Ecstasy of Influence*: An Oakland Illustrator Has It Both Ways article published on 27 November provides some better informed comment - but also seems to suggest Lisa Congdon might have boxed herself into a corner.

Congdon says she plans to refute Sherwin's criticisms eventually, but she's waiting to settle ongoing legal negotiations with Cody Foster. 

A comment by a photographer

Photographer Jon Atkinson states that Lisa Congdon used his image without his permission (in Comment 524). You can also read the exchnage of correspondence at COMMENT530

I am one of the photographers, who owns the lemur image (http://jon-atkinson.com/Lemurs.html) that Lisa Congdon has copied.

I can categorically state that Congdon did not request or have rights to use my photo. All of my images have embedded watermarks that show they are copyright protected so she was fully aware that she did not have the rights to use it.

On contacting Congdon directly, she apologised (i.e. admitted guilt) and has subsequently removed my image (and by the looks of things all the others).

He followed up with

I am pleased to say that Lisa and I have negotiated an amicable, retrospective, licensing and future royalty agreement for the use of my image which is based on my standard fees. As such Lisa can now use her illustration of my Lemur image for commercial purposes across the Web.

So, in effect, he's achieved the minimum that any photographer or artist should expect for with respect to any use of their images without permission - as an alternative to complete removal from the web.

A comment - and a podcast - from Fresh Rag

Last week we had The Copyright Quagmire Between Lisa Congdon, Cody Foster & the Art Community  which is a podcast on Fresh Rag. It's the longest episode they have ever done. It includes:

• an interview with an intellectual property lawyer Tamsen Horton, who has specialized knowledge in copyright law
• Mark Brickey of Adventures in Design Podcast to speak from the professional’s point of view.
• All the sites referenced in the podcast can be found in the blog post.

The Copyright Quagmire Between Lisa Congdon, Cody Foster & the Art Community - Podcast

His conclusion - as context for the podcast (the audio version of his blog)

I should state that my own opinion about artists tracing images for their own art is not something I’m overly concerned with, but you should have the rights to use the images first, whether purchased, or through Creative Commons.
However, when an artist claims those same copied illustrations are their original idea, and then goes after another company for essentially doing the same thing, I feel it becomes important to expose the hypocrisy. I do not aspire to tear other artists down, but we need to be as accountable to our actions as we expect corporations to be toward artists.

The role of the Copyright Alliance

What I have also found very interesting is the way the Copyright Alliance are treating this story.

Copyright Alliance is an organisation which deals with copyright matters and representing the interests of people who create original items which enjoy copyright protection.

The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing artists, creators, and innovators across the spectrum of copyright disciplines, including membership organizations, associations, unions, companies and guilds, representing artists, creators and innovators, and thousands of individuals.

Back in October they did an interview with Congdon - see Lisa Congdon's Story: How One Artist is Fighting Back Against Infringement submitted by Alexandra Goldstein, a Legal Fellow with the Copyright Alliance on October 18, 2013

They were subsequently notified about the Thomas Allen blog post through repeated posts on their Facebook Page but to date have ignored it.

As one commentator put it - it really sends out a mixed message to give a high profile to one individual alleging copyright infringement and at the same time to ignore those who have illustrated there's a bit more to the story than first appeared.

Does the Copyright Alliance not support the copyright of photographers in the same way they support artists?  If one of the photographers involved contacted them would they also get an interview?

Is comment by its Legal Fellow a one way street with the Copyright Alliance?  Maybe Alexandra Goldstein would now like to interview Thomas Allen and ask him about his montage and why he developed it?

Conclusion

I've never ever seen anything like the Thomas Allen "montage" before.  Never.

It reminds me that the whole point about derivative works is you should not be able to recognise the original source work which enjoys copyright.  Plus you can't claim copyright unless you have permission to use an image you've copied.

As I indicated last time

derivative art has no claim as to copyright. To have a claim on copyright your artwork needs to be wholly original and capable in law of being able to assert copyright. Typically this means using your own reference photos as well as your own designs.

For me, it comprehensively makes the case that, if this so-called case of copyright infringement ever went to court, the legal debate would almost certainly involve an extensive debate about the derivative works apparently made by Congdon.

Plus it's entirely possible Lisa Congdon may be receiving letters from people asking for their share of the proceeds of artwork sold via Congdon's Etsy shop.  As we can see above the photographers have already started to extract licence fees for the unauthorised use of their images.

In conclusion - the Congdon case (allegation and counter-allegation) is rapidly becoming one of those copyright cases which will continue to be discussed for a long time.

For me it highlights the issues which can arise when anybody uses any image from the Internet for their own artwork - and then sells it.

At this stage I take away four conclusions as generic observations

• tracing is copying - and it's absolutely fine if the image is your own or one you have permission to use
• It's never a good idea to create artwork based on someone else's photographs. Your artwork is only wholly original and thus can enjoy copyright when it's based on your own photos
• It's not a good idea to use stock photos for your artwork . It can get really confusing as to what came first and who copied who if there is a dispute
• If you buy and licence an image make sure you observe all the licence requirements - plus keep all the paperwork and make sure you have an archive  copy in case anything happens to your computer.  One day you might need it!

RESOURCES: Copyright and Intellectual Property

Plus how to find your stolen images on the Internet!

Copyright infringements are very likely to occur when there's a conflict between big business, the individual originator - and people who try to steal images without paying.

My website Art Business Info. for Artists has a section about Copyright for Artists. This provides links to information available online about copyright, trademarks and brands for artists. Specifically:

• Copyright and artists' rights
• How to protect artwork online
• How to do a reverse image search - If you want to find out whether somebody has created copies of your photos or artwork on the Internet
• Global Conventions on Copyright This includes links to authoritative national websites and various bodies dealing with copyright matters. These include advice on what what to do in your country if your copyright is infringed. 
• Copyright in the UK
• Copyright in USA
• Copyright and intellectual property in Canada
• Copyright and intellectual property in Australia

Blogs post about Copyright on this blog

• Pinterest revises TOS and addresses copyright issues 24 Mar 2012 The Pinterest team has decided to try and address the very real copyright concerns of visual artists, photographers and others
• Takedown: How Pinterest moved fast to remove my pinned images (#2) 01 Mar 2012 Do you want to get your images removed from Pinterest quickly and easily? If you do read on. This is Part 2 of my post about remedies to the problem of images appearing on Pinterest without permission.
• How Pinterest removed all my pinned images in minutes (#1) 29 Feb 2012 This two-part post is about remedies to the problem of images appearing on Pinterest without permission
• Pinterest: How to prevent your Flickr images from being pinned 26 Feb 2012 This post explains how to prevent your Flickr images from being pinned - by changing your site preferences
• Pinterest: How to prevent your Blogger images from being pinned - Making a Mark 24 Feb 2012 This post explains how to stop images on your Blogger blog from being pinned to a Pinterest site - by inserting a meta tag in your Blogger template.
• Consultation on Remedies for Copyright Small Claims (USA) 10 Jan 2012 The importance of orphan works for photographers and artists is that digital images can easily become detached from their proper accreditation - and income can be lost and the asset value damaged as a result.
• UK Copyright law to be reviewed (2010)
• The difference between "copyright free" and "royalty free" 16 Dec 2008 A royalty is a way of earning revenue income from a copyrighted work. Artists can licence reproductions of their work. Most charge a fee as a royalty payment.
• National Portrait Gallery versus Wikipedia - Round Two! July 17, 2009
• You cannot copyright nature 07 Sep 2009 If you create art from nature, do you know what the elements of your own work are which sets it apart from what nature created?
• Art competitions and copyright - the AWS Gold Medal debate This is a lengthy post highlighting issues relating to the use of reference photographs for artwork. It references the controversy regarding the AWS Gold Medal 2008 and reviews issues within a wider context and is of relevance to:

• art societies which have to deal with disputes about copyright
• artists selling work or entering competitions with artwork based on a reference photo taken by somebody else, and
• artists who work in a hyperrealistic/photorealistic way.
• Statement on AWS Gold Medal controversy from President
• American Watercolor Society Gold Medal - the final verdict on Sheryl Luxenburg
• Making a Mark: AWS gold medal controversy - the final word
• Visual artists and Copyright in the Knowledge Economy (2008)
• To copy or not to copy - what is the law? 24 May 2007 you cannot copy what you like simply because it's on the internet and accessible. Copyright law applies to the internet and blogosphere and those who publish on it.
• Blatant breach of copyright by Deviant Art Member  31 May 2006
• Copyright infringement - what to do when someone steals your content (2006)