Artistic License – When is Copyrighting Taken too Far?

Hayley here.

So I’ve recently delved into the world of online selling a la Etsy and Redbubble for my art. Both use tags to enable potential shoppers to find exactly what they’re looking for – and their tagging system is great.

But I’ve been having a problem with Redbubble that I’m not having with Etsy – having my work taken down as copyright infringement.

This afternoon, a snowy owl (pictured below) I uploaded to the site tagged under Harry Potter and Hedwig because, you know, it’s a snowy owl, was taken down. Which WOULD be fair enough…if no other products on the site tagged as either of these things persisted on the site past a few days.

There are hundreds.

HP1HP2

The offending owl

As I took to my laptop to write this in frustration, I got two more emails informing me that a Daenerys and a Sansa-themed piece that I had drawn had been taken down. Search for either of these characters, or indeed Game of Thrones and, you guessed it, you get hundreds of products coming up. And these products have been bought dozens, if not hundred of times. These artists are clearly capitalising on a franchise that, apparently, does not want me to join in on.

From comic con experience, I know that artists selling at such public venues are not supposed to sell fan art (art depicting characters or scenes from TV/films etc. that they do not own the license to), but so long as they’re not making thousands and thousands of pounds and they’re not marketing it as “official” artwork, artists are left to do their own thing.

So why has my art been so unfairly singled out? I checked the Redbubble FAQs about it – they have an entire section entitled “Why was my artwork removed while other similar ones remain?

Here’s what the section says:

 

It is Redbubble’s policy to remove allegedly infringing works in response to valid complaints under applicable law, but content is only removed when it has been specifically identified as infringing in a legally valid takedown notice. We generally don’t go looking for similar works to remove from the marketplace.

When rights holders complain, they usually identify specific content on the marketplace as infringing and request its removal. We don’t know why they decided to leave certain content up on the site that seems identical or similar to the content they’ve asked us to remove. But in general, a few different situations might apply. For example, the rights holder may know that the similar work is legitimately licensed to an artist selling on Redbubble, or perhaps they think that the similar work is a fair use and not infringing.

Also, while it might seem like you’re being unfairly singled out if you see similar works that are still available, rights holders may be in the process of issuing complaints for other similar content and Redbubble may receive another complaint at any time.

Okay, so based on their own FAQ, anything sold on their site that is legitimately licensed should not be targeted, nor anything that constitutes fair use. And yet, you can bet that the bulk of the products tagged under Hedwig or Harry Potter or Game of Thrones or Sansa Stark will not be licensed, and a quick search for each of these tags presents artwork that definitely shouldn’t constitute fair use (literal quotes from the Game of Thrones TV show, photos of the character etc. etc.).

Which begs the question: what caused my artwork to be deleted?

It’s not even that they simply remove the offending tags – Redbubble removed the entire listing, yet I am free to reupload my artwork so long as I don’t use said tags (at least in the case of my snowy owl). But here’s the thing (and this is probably one of the most annoying things about this): it took me over an hour to decide on how I wanted my art to look on each of the 40+ products available on Redbubble. That means I have to redo this process, for each of the “offending” pieces.

And it makes my artwork difficult to search for, limiting my ability to sell the pieces. I should point out that neither of my Game of Thrones works depict likenesses to the actors who portray Daenerys or Sansa, respectively:

Without the descriptors “Sansa”, “Daenerys”, “Game of Thrones” etc. the average shopper on Redbubble would not know that these prints depict characters from the mega-popular series, so one could easily argue that my artwork is fair use. And as mentioned earlier, I wouldn’t even have a problem with it if every piece on the website that came up under the offending tags was subject to the same restrictions as my own…but they aren’t.

I have another two pieces up on Redbubble related to Sansa and Dany which I have now anxiously removed the tags for, knowing now that they likely won’t come up in any useful searches. Some of the most popular searches on sites such as Redbubble and Etsy are for art depicting shoppers’ favourite characters, TV shows, comics and movies, but official art is often uninspired and boring. This is why fan art culture is so rich and vibrant – we create what the official licensers have not. And when there is such a huge demand for it, it seems ridiculous that talented artists cannot sell their art just because it’s a homage to an existing franchise which they love so much.

And whilst Warner Brothers and other big-name companies remain inconsistent in what they deem to be “fair use” or not, the entire system will continue to be unfair, taking away opportunities for independent artists to get their foot in the door by selling popular fan art, before pushing original content to the forefront.

After all, if these multimillion-dollar companies aren’t providing the content that people want to buy anyway, why shouldn’t the rest of us take advantage of that gaping hole? If nobody created art (or, indeed, any kind of creative content) about their favourite characters, books or films, the world would be a much duller place.

I’d love to hear from anyone who has suffered similar problems, so give this post a comment or fire over an email if you want to rant/complain/exchange stories!

And if you want to see more of my art, rather more helpfully tagged than on Redbubble, feel free to check out my Etsy here.

One Comment Add yours

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s