Monday, 24 January 2011

The Curious Case of Walter Potter and the Stufffed Animals that Bite

Somewhat sobering but as something that has the potential to affect a lot of us I am honor bound to share this information with you. On Saturday I had an email from a very good friend of mine who runs a blog for the benefit of the art students who she teaches. She had posted a piece on an upcoming exhibition at the Museum of Everything featuring the work of the celebrated Victorian taxidermist Walter Potter. Potter was indeed a curious character, whose work revolved around stuffing small animals and dressing them up in Victorian costume all the better for them to inhabit the miniature school rooms and other mini-environments he had constructed for them. My friend had done a Google search for an image of one of Walter Potter's works with which to illustrate her posting. She chose what to all intents and purposes was a very innocuous photo (not the one above) of a group of stuffed baby rabbits in a miniature classroom.


This weekend she received a very intimidating letter from a German photographer who as the copyright owner of the photograph (which in effect had been originally sourced from a postcard with his copyright indicated) wanted payment within a fortnight of some €450.00 for usage of this image. His letter which was forthright to say the least stated that if this payment wasn't met by the due date, he would press for additional payments including lawyer's fees and interest totaling some €5000.00 and to further emphasize the seriousness of his intent he cited a previous example where he successfully sued a German publisher for DM 31,000.00.

Needless to say my good friend has been in an agitated state for much of the weekend, she has removed the offending photo but the guy is not to be so easily mollified. He is pressing for payment and is also pursuing bloggers in the States, Iceland and the UK, including the US blogger who had hosted the site from which my friend had sourced the photo.

I've done a lot of research from my end and learned enough about the dos and don'ts of copyright law and blogging to realize that a lot of bloggers, myself included are sitting on legal time bombs of our own construction.

For anyone with a blog that uses images from comics that aren't their own creation, the defense of "educational purposes" won't make much headway when copyright lawyers get stuck in. We're all hoping that as we're promoting comics the fates will smile on us but as my friend has just discovered, you just need one person with an axe to grind for your world to be brutally upended.

She is now faced with seeking advice from a copyright lawyer at £400.00 per hour or paying off her plaintiff and hoping he'll leave her alone.

In the meantime here's a couple of useful links:

Link 1

and:

Link 2

Needless to say the thought that my blog in common with a lot of other comic orientated blogs, is a potential legal time bomb is giving me a certain amount of pause for thought.

Watch this space ...

for as long as it's around!!!

38 comments:

  1. How extraordinary that a Victorian photograph can be copyrighted and "squatted on" by somebody today. That, coupled with the bullying demand for payment from a hapless blogger who quite obviously posted it with honest intentions, leaves a very sour taste in the mouth. I just hope that your friend can get out of this - indeed, if there's a whip round to help cover that legal advice I would happily make a contribution - if only to deny the bully a penny!

    ReplyDelete
  2. There's a lot more to this story Dave, but I can't for obvious reasons go into to it in much more detail as I don't want to do anything to compromise my friend.

    The thing that I need to perhaps underline is that the photograph was indeed taken by the plaintiff. The content of the photograph is self evidently not his though and when you see the photograph all your looking at is the creation of Walter Potter. All the "photographer" did was point his camera at the tableaux and press the shutter.

    ReplyDelete
  3. I'm so glad to see you write this Pete.
    I have known that copyright defences of 'fair use' are only legally applicable to articles/chapters of books/journals and are talking about text. I cannot see anywhere specifically in UK law that says copyright law allows for image fair use although the 'for criticism and commentary' argument can be seen to be a reasonable thing to do when talking about a comic.

    One of your links looks to be USA law as it states "materials produced before 1977 without a copyright notice" can be used. But in UK law the copyright automatically exists once something is produced - no need to attach a statement except it makes sense to identify your work and show you are willing to abide, but the scary thing again is you might still be in breach of the law!

    We all work on the basis we are not trying to rip anyone off, but honestly I am! The company may be the richest media company in the world but it is THEIR property and that's how they pay their employees - revenue

    It gets even harder when you try to talk about UK comic characters as Maxwell fudged the waters when acquiring properties but no-one knows for sure what! And don't even get me started on who owns the characters in the classic Eagle comic! We know clearly who owns the Dan Dare character alone, but does he also own the Eagle.
    More discussion needed

    ReplyDelete
  4. Who owns what can be a bit mystifying in some cases but when it comes to IPC's comics it's actually quite clear- saame for Eagle. IPC sold all their then currently published titles in the mid 80s to Robert Maxwell. Plus the rights to every title published from, I think, 1970. IPC kept hold of everything published up to Sally ( the cut off point). IPC also sold, as an individual character Roy Of The Rovers, because he pre-dated the cut-off point, but was still being published in his own comic at that point. Thinking about it, the same might hold for Buster. In the 80s ( or was it the 90s?) you might remember that 2000AD put out a summer special updating old characters such as Adam Eterno, Robot Archie, the Steel Claw and son on. As far as I'm aware they didn't actually have the right to do that.... oops ( I'm not sure anyone noticed!)
    When Dan Dare was bought, he was purchased from Robert Maxwell who had bought the charcter as part of the New Eagle. I understand that to mean that since IPC never sold anything from the old Eagle they still own all those properties. The problem arises in the lack of paperwork to prove current ownership- or at least any paperwork that I'm aware of.
    The Maxwell titles were subsequently sold to Egmont and 2000ad was in turn sold on to rebellon. IPc currently own the rights to all the pre-1970 comics they published, plus the post-1970 teen/romance titles ( these were then part of the teen division, not the comics division so were never sold on). The exceptions are the educational titles that were sold to the current Look and Learn company- that is, L&L itself, Tell Me Why, World Of Wonder ( I think), Treasure, Ranger and various Nursery comics. Plus The Trigan Empire.
    As for the apalling case of the postcard- of course, what the photographer is claiming ownership of is his own photo- the subject matter is irrelevant- so you can see that in law the image is undoubtably his. I'm not sure how things work on Flickr, but I think you can ask people posting on there if you can use their images - possibly for a fee? For artwork, for anyone who died before 1941 I think it becomes public property- after that it becomes more complicated. I think you'll find that in a lot of cases when you find an image library charging for the use of images- you're paying for their scan, not the picture itself. In other words, their contribution is to have sourced the image ( often a tricky thing in itself), it does not neccesarily mean that they own the atwork itself, just this particular image of it.
    But I stand to be corrected!

    ReplyDelete
  5. Yipes and double yipes! I know several comic blogs that reason since they only use partial stories, or selected panels, that they are safe from copyright problems. What does you research about that defense indicate?

    ReplyDelete
  6. Many thanks to all of you for your thoughtful and helpful comments and to David for his fascinating breakdown of the copyright status of much of the UK's comic output.

    Mykal's question regarding use of selected panels by some more cautious bloggers is something that i have been considering.

    I think the bad news is that if even if it's a partial story you could still be exposed to the kind of litigious procedure that my friend is dealing with.

    Bottom line is that if it's not your image or public property (which it self evidently won't be) then it's strictly speaking not yours to include on a blog.

    You might well be able to offer up the defense of non profit making activity, or it was only low-res your honor, or my blog is for educational purposes only, but technically you're still in the wrong.

    And even more painfully as it's copyright law - you will need an attorney who is on top of the rapidly changing world of international copyright.

    These guys are seriously expensive, as soon as you're on the phone to them you will be aware of a dry ticking in the background as their $700.00 per hour tachometer clicks into action.

    If you win your case fine - you'll hopefully get your costs back, if you lose you are stuffed and probably heading towards financial ruin.

    Now the chances are that this won't happen. I know that I have had visitors from many of the companies concerned with publishing books and comics visiting my blog. They are nice people who leave friendly and helpful comments and inform us of up coming projects that they think might be of interest. Like your blog Mykal as well as a host of other really informative blogs we are out there stimulating interest in comics and as my old mate Dave Morris battered credit card will attest, encouraging readers to go out and spend money on the actual publications.

    So we're adding to the knowledge and appreciation of this art form.

    But you only need one person with an axe to grind to start trawling through your blog via a Google image search, to start making your life very uncomfortable.

    As in the case of my friend a multiple of bloggers would find themselves on the receiving end of claims for punitive damages and these can be launched without any initial cease and desist notice being issued.

    As a consequence and with a heavy heart I have already started removing posts which reprint comics in a verbatim manner. Within the next few days they'll all be gone as it's a risk that for me is just not worth the candle.

    Further axe wielding may well be necessary, but I'd rather err on the side of caution then risk incurring the kind of grief that could well arrive on my doormat at any given moment.

    ReplyDelete
  7. This is a worrying story, and a salutary lesson for us all. However, he IS the copyright holder and she HAS stolen his work - however innocently - and should pay up.

    I know this sounds hard - and I'm really sorry for your friend, Peter - but piracy is going to prevent creatives from making a living from their work. Images are very easy to steal and I know a lot of photographers are v militant about it already (as this guy seems to be). I think you're very wise to take down anything that you either haven't got permission for, or don't know if it's free to use.

    Sad times...

    ReplyDelete
  8. Peter,

    "All the "photographer" did was point his camera at the tableaux and press the shutter."

    ... but that's the point of copyright. He pointed his camera and took the shot and therefore that image belongs to him. This doesn't mean I'm supporting the course of action he's taking - no correspondence should ever begin with the threat of lawyers - but he's perfectly within his rights to protect his copyright.

    'Fair use' applies to the internet just as it does to academic journals, magazines and newspapers but that doesn't give people carte blanche to make use of any illustration or image they want to. Fair use only covers certain contexts.

    Educational usage also has a very limited scope which may allow you to photocopy something to pass out to a classroom of children but certainly doesn't cover scanning a whole magazine and making it available to anyone with a computer which is, effectively, unlimited distribution.

    Whether a person makes a profit from distributing something across the net or not is no defense. If you're making it available for free you're still costing the author/artist/photographer money because they're not getting royalties on the book/feature/photo when you buy it in a bookshop or newsagents; they're not earning Public Lending Rights from when you borrow it from a library; and in the worst case scenario, the publisher isn't earning any money, so why continue publishing. (I'm reminded of the graphic novel boom of the early 1990s: graphic novels became the most shoplifted items in book stores, so book stores stopped stocking them, which is why most mainstream publishers don't publish graphic novels.)

    There are aspects of copyright that I disagree with but until things change we play with the hand we're dealt with. Only last year I had to remove a photograph from Bear Alley. No threats, no nastiness, no unreasonable demands, and the photo was back up ten minutes later once we sorted out what the problem was. Wherever I can I do my own scans (which mean those scans belong to me but the image on the scan doesn't), acknowledge the copyright owners (when I remember) and post an e-mail address so that anyone who has a problem can get in touch.

    Oh, boy... and all I meant to say was that The Trigan Empire isn't owned by Look and Learn Ltd. It was one of a number of strips retained by IPC Media when the sale of Look and Learn and Ranger was negotiated.

    ReplyDelete
  9. I'm fully with you on the preventative measures that you are taking Steve, but even following those procedures I don't think guarantees total freedom from what I think in the case I've quoted is vexatious litigation.

    The problem with copyright ownership is that it can be quite a gray area and hey presto you're back in the situation of having to seek legal advice.

    Sarah's quite right in saying that in legal terms my friend albeit unintentionally stole the "photographer's" work.

    There are literally thousands of bloggers out there who are in exactly the same boat, often unaware of quite what they are doing and the fact that anyone with a claim to an image could do exactly what the plaintiff in this situation has done.

    Which is why I've spent another evening nuking posts.

    Small is beautiful - well at least less prone to litigation.

    ReplyDelete
  10. Peter: I've decided to go on an extended vacation myself from many of my comic blogs (but not all). I'm just sick of worrying about things, and unless I have misjudged the wind, I think more cases like your friend's are in the wind.

    I think the photographer in question had every right to do a cease and desist on your friend. What makes the think evil to me is the ugly, cruel grab at money at the expense of a blogger that perhaps made an innocent mistake, yes, but one that shouldn't lead to this kind of financial hardship. It is a mistake I have made a hundred times over (but will not make again, I assure you). So, when thinking about your friend, - there, but for the grace of God, go I.

    Long story short, I believe artists have the right to a copyright to protect their work; even corporations - but, jeez, give a basically innocent blogger the chance to comply before snuffling like a hog at a payday.

    ReplyDelete
  11. My sentiments entirely Mykal but it takes just one letter such as arrived this weekend at my friend's home to essentially make your life a misery.

    I am writing this having pulled down a whole load more postings.

    Soon be just skeletal remains.

    ReplyDelete
  12. What a mess. As a photographer, I can confirm we own our photos in the same way as a painter owns his painting, provided we had the right to take the photograph in the first place. There are a few vagaries, but that's the broad brush as I understand it.

    Personally, I'd be flattered, but if I were that bothered, I'd never have put an unwatermarked picture online in the first place.

    At the very worst, regardless of his legal RIGHTS, it would have been far better to send a simple polite request to either remove the photograph or pay a sum for a licence to use it, before geting nasty. Completely needless - he is making work for himself when he could build goodwill with less effort.

    ReplyDelete
  13. Many thanks for your comments Andy. I think you have really hit the nail on the head. There is certainly no way my friend was seeking to make any money on the back of this photograph.

    Furthermore if the work had been clearly identifiable as a work of art in itself, rather than (as is the case with this photo) a verbatim record of someone else's intellectual property, she would have been able to avoid the legal entrapment that she has stumbled into.

    Which is where I would take issue with Sarah's assertion that as he is the copyright holder his work has been stolen and he should be able to receive damages that in this case far exceed what he would have received for the use of his image in a magazine.

    For all too obvious reasons I cannot post the picture in question, but all the man concerned has done is take his camera and point it down at the contents of a glass case and then pressed the shutter.

    If I were for sake of argument to take a similarly bog standard photo of The Angel of The North and as you say released it as an unwatermarked image, it's more than likely that it would eventually appear all over the internet. If I then used this as a means of securing damages from the people who had so incautiously sourced it, I think I might well be in danger of being sued for malicious use of Anthony Gormley's intellectual copyright.

    The only difference being that while Anthony Gormley is not only very much with us, but rich enough to be able to effectively police such encroachments on his creativity, Walter Potter is not.

    That to me is where the real theft in this case has occurred - but that is purely my opinion and I am not a legal expert in any sense of the word.

    ReplyDelete
  14. This's an adaptation of something that's been going on in the music industry for decades, now.

    Back in the '80s the use of a computer based device called a sampler took off because it enabled musicians to take a copy of, say, a particular drum sound or bass note off a record and incorporate it into their own work.

    At first, so long as no one pinched actual bits of tune, this was considered homage; but then a record producer called Pete Waterman, noticing many other record makers, much like himself, were sampling the US dance act, Chic, bought up Chic's sampling rights and set up a specialist collecting agency exclusively dedicated to monitoring every record released in the hope of spotting the use of even so much as a single incidental background 'Chic' cymbal sound.

    Since then groups like The Verve've had to hand over to the likes of Allen Klein every penny they earned, plus full copyright rights to such huge hits as Bitter Sweet Symphony, purely because they happened to incorporate a Rolling Stones sample the song didn't need anyway.

    A lot of this sort of thing is a complete out and out racket, with people purposely leaving 'stray' copyright 'generic' style material out there - a lot of it filched one way or another from work no longer in copyright - purely for the purpose of using the universal fear of legal processes to extort money.

    If anyone approaches you in this style, first demand absolute proof of copyright, otherwise you might end up like someone I'm aware of who was visited by a succession of crooks each of which insisted, no, no, that other guy was the fraud - I'm the REAL copyright owner.

    ReplyDelete
  15. Hey,

    I have received a crazy letter and an invoice from this guy and he is clearly nuts.

    I got the photo from a google search of taxidermy and it had no watermark or anything else to suggest that it wasn't in the public domain.

    The "photographer" sent me a cheap postcard with the picture on it, to prove that I stole it from him.

    I googled him (Stefan Richter) and discovered that some postcards he has "copyrighted" are available from some website, and include his photos of tattooed penises AND something horrible going on with someone's vagina that I couldn't look at.

    He sent me a rude letter with his invoice.

    I emailed him to ask for mercy. I am unemployed and traumatized by my son's suicide. All of this is well documented on my blog.

    He wrote back to me, opening with "I have no interest at all in your personal life"

    He went on ranting and raving and told me that I needed a lesson in RESPECT"

    Let me say this: I would rather gouge out my eyes than give this maniac any money. He should be sued for harassment. Perhaps there is some law against demanding money from citizens of different countries in this manner?

    Fuck him. And Viva William Potter.

    Sister Wolf
    http://godammit.com

    ReplyDelete
  16. It's taken some time but I need to add to this blog. Whilst issues regarding copyright are relevant to all of us it's my predicament which has sparked off this debate. Can I just say thank you to Peter and to everyone else for your thoughts. All of your comments have helped me immensely and have made me appreciate what a minefield all of this is. And to say that I am so sorry that Sister Wolf is also in a similar position to myself.

    Whilst not wanting to comment directly on my own experience it seems from all I've learnt (and I'm clearly a novice) if there is an infringement of copyright generally a 'cease and desist notice' would be sent in response to any infringement. If there had been any commercial gain then some payment would be negotiated. In addition, damages might be added.

    Subtleties such as whether an artist's originality and skill are sufficient to warrant a copyright in the first place are argued in an expensive court of law. Stringent copyright regulations also exist in an educational context although It seems there is some space to use an image for discussion purposes. Obviously this is a bit tricky if you're discussing the subject of a photograph rather than the copyrighted photograph itself.

    I've been advised that the german approach to copyright is strict. If cultural differences impact on the interpretation and use of the law the consequences for bloggers are less predictable. In addition, as any 'infringement' may need to be argued in a foreign court it becomes unmanageable.

    Richter is 'invoicing' two other people which I'm in contact with. What one of them has told me regarding Richter's response to an apology is consitent with what Sister Wolf has written of her experiences.

    It's not a great state of affairs is it?

    ReplyDelete
  17. just to add for Sister Wolf I have approached DACS, an organisation who protect copyright, and they have put me on to www.advicecentre.law.qmul.ac.uk

    You can access legal advice here should you want it.

    ReplyDelete
  18. I don't know if this is relevant but I have seen cases where people using peer to peer file sharing web sites have received what are called 'speculative invoices' from firms of lawyers/solicitors. There is a PDF document 'Speculative Invoices' on the web if you search for it, which indicates what to do as a result of receiving such a demand. While it is not legal advice as such, it is a fair assessment of the methods these type of solicitors use and why they use such threatening language in order to get payments.

    It seems that many people contacted this way opt to pay up, because of the threat of expensive legal action, this results in a much higher level of profit for the lawyers than if the content were sold in the usual way.

    It would be highly unlikely that very many people would be prosecuted for anything other that the most blatant and commercial copyright infringements. I doubt if featuring a photograph such as the one under discussion requires anything from the web site publisher other than a notice to cease and desist from the copyright owner.

    Once the photograph has been removed the problem should be solved – as was the case of the anagram London Tube map which the London Transport managers forced being removed from a web site purely because the artist had included the trademark underground “roundel.”

    So my advice would be remove the photo, inform the solicitors that the offending item had been removed apologise for any confusion over copyright ownership and refuse to make any payment on the grounds that this was extortionate and disproportionate to a possible offence, and make this the substantive reply to any further threats. I don't think they are in any danger of ending up in court.

    ReplyDelete
  19. I am going through the same thing with the same person over the same issue, I removed the pics and apologised, nearly 3 weeks later he just sent a demand in email for payment by this Friday, it is worth mentioning that a major uk newspaper used one of the same pics and attributed the rights to a museum not the same photographer... I am terrified what will happen. I'm in the UK by the way and hes hes threatening to take me througfh the German courts..has he started any legal proceedings with non German citizens or your friend yet?

    ReplyDelete
  20. I'm really sorry to hear this and it sounds like exactly the same process that is being taken against my friend with this Friday as the due deadline.

    The man responsible for visiting this misery on hapless bloggers has joined a German photographer's union and it is they that will be footing all the court costs should push come to shove. Plus he has stated that all correspondence should this go to court has to be submitted to the unions legal representatives in German.

    He is pursuing people in Iceland and the U.S. The advice from at least one U.S. attorney to one of the U.S. citizens being intimidated by this character is not to pay. His union would have to submit their claim via a U.S. court and would by all accounts receive a fairly dusty reception as there has been no attempt to send a cease and desist communication first.

    The problem for UK citizens is knowing how much U.K. law has been undermined by EC legislation.

    Copyright lawyers in the UK can cost £400.00 an hour which is heading towards the sum being demanded from my friend by this man so you can see the problem in contesting this claim.

    Advice can be found here with a link to a UK lawyer who will give you twenty minutes or so free advice.

    http://extortionletterinfo.com/

    and also:

    http://www.guardian.co.uk/technology/2008/nov/27/internet-photography

    Might be worth contacting the paper you mentioned as this man is using German copyright law (which is VERY strict) in ways which some people might find quite newsworthy.

    ReplyDelete
  21. Thank you Peter, (this is the lady in the uk) I am going to the see someone this evening regarding the matter as I really cant go on with such worry anymore I suffer chronic depression and anxiety & its eating me up. Your friend seems to have had the same letter as me, and I can understand her panic, I have no financial means nor assets so wouldnt be able to afford anything near what hes asking or legal fees. I think the newspaper in question may have removed their picture, so maybe they are even aware of him, I got my friend to do a screen shot of the article when it was live so I do have it and may approach them as well. I had no cease and disist warning first either.
    I appreciate any advice, so thank you and I hope your friend is ok, is this only women who are approached? at least 3 of us seem to be
    Regards cat

    ReplyDelete
  22. I'm sorry to hear this too. That's four others apart from myself. What would be very very useful is to know the name of the picture and the newspaper. If they can for absolute certainty confirm that the copyright is owned by the museum and not Richter it means everyone can ask Richter to provide uncontested proof that he has the copyright. I have emailed and spoken to the museum which has, since 1992, changed hands. They, I hope, will check with whoever worked at the museum in 19992. This MAY offer a way forward.

    ReplyDelete
  23. ..thats just who we know of Joanna, I have spoken to the newspaper who i cant mention here due to potential legal issues. I would like to be able to give them the link to this thread if I may, I cant promise it will help but as Joanna says it MAY ofer a way forward. I am so glad to have found this thread, and while I am sad to hear of everyone going through this, I am glad to have found you.
    Cat

    ReplyDelete
  24. This comment has been removed by the author.

    ReplyDelete
  25. I can see that this might be difficult. I hope, however, we can work out a way of dealing with this which won't cause distress to anyone else.

    ReplyDelete
  26. Here's an idea

    Given that Mr Richter is a "famous" photographer why not share his comments with several German newspapers and Braus, whom I would sure would love to read it.

    ReplyDelete
  27. How many people have been affected by this do you think. I know of 3-4

    ReplyDelete
  28. This comment has been removed by a blog administrator.

    ReplyDelete
  29. This comment has been removed by a blog administrator.

    ReplyDelete
  30. This comment has been removed by a blog administrator.

    ReplyDelete
  31. Welcome to the fan club,

    ReplyDelete
  32. This comment has been removed by the author.

    ReplyDelete
  33. Sorry about all the blanks - but in the interests of personal security and to avoid possible harassment from certain sources, I've removed the references to email addresses from the correspondents concerned.

    ReplyDelete
  34. Decent people should have a voice against those who can exploit technicalities. The legal machine however has no moral code, just a set of rules and regulation, which apparently, ignorance is no defence to.

    ReplyDelete
  35. I did some more research into this and "Getty images" are doing the sames "pay up" demands, but to a much larger audience and it was reorted that they have program that searches the internet looking for their digitally watermarked images and "hello" here comes and invoice. It is interesting to notes that the search engines are also guilty of the offence if you like as they "host" the images.

    The copywrite machine is an interesting one to be involved in. I agree people do need to protect their livilihoods from people wishing to exploit their work and take their hard earned income away. Bloggers merely "infringe"

    Now that I have been exposed to this, a lesson learned, I am actually glad in a childish way that there are serious fraudsters out there making tons of cash from copywrite abuse and exploiting peoples IP. As it makes the copywrite laws, complicated, expensive, worthwhile, vey necessary but ever so pointless. It might make the industry eventually look at itself and ask "where is the real damage / harm being caused". Wishful thinking

    ReplyDelete
  36. Last word on this. I actaully think that Walter Potters work is horrible. A man clearly "touched", acting out whimsy fantasies in a little village in sussex. Looking at the body of his work and the subject matter, clearly suggests a repressed sexuality. Hey Walter, YOU FREAK, YOU should have got laid more (LOL)

    ReplyDelete
  37. Nasty piece of work for sure.

    ReplyDelete
  38. Trying to find the Ultimate Dating Site? Join and find your perfect date.

    ReplyDelete