Well, I've pondered and wondered and I finally decided I would post a new journal.

I am no longer volunteering for =wesurvived. On 5th February I was informed the password to the club had been changed and that I was no longer wanted as a volunteer. This came as a shock as I've not had any complaint put forward prior to this and to this day I still don't have any knowledge of any incident.

I have therefore been unable to see the first campaign on Emotional Abuse and Survival through, which was supposed to take place yesterday. It saddens me greatly and I think the reasons behind this change are unfair.

I will not go into details as to what was said to me by the person who took the decision to remove my participation away from the club. I will only say again that I am deeply saddened that I will no longer be able to provide support to those who experienced the same ordeals as I have and find solace in knowing there was a place we could all meet and feel safe.

After a lot of thought and consideration following the last communications with the decision maker, I have decided to remove myself from further contact. I feel that whatever I do from now on to prove to this person that they are mistaken in their decision will never be satisfactory.

I wish all the club members to continue their fight against abuse and to keep the strength to survive. Only by doing so can we overcome the violence.



You may also have noticed my lack of activity lately. The whole debacle on tracing and copyright issues and whatnot has lead me to remove the majority of my gallery. I will now concentrate on my personal website and blog to showcase my photos, texts and art projects. This is not goodbye, this is "I'm having to stick around for another six months until my subscription runs out!!! "
I've got my on you, DEVIANTart...

The stock account will remain active for now...

If you want to keep in touch, then note me with a request for my address/email, etc. I reserve the right to refuse passing my personal details.

Additional information at the end of this journal.

First of all, let me say that my position reflects what a lot of independent and lesser-known artists are feeling about the current position dA is holding on its latest policy regarding allowing the use of tracing on its website. I'm not interested in protecting the interests of the fat cats sitting at the top of their multinational artistic business although by speaking for the smaller artists, all artists are given a voice.

After successfully sueing an employer in 2004/5 and currently being in legal dispute with the DWP (Department of Work and Pensions) for discrimination in the shape of an appeal against an unfair decision, both of which were/are being conducted off my own back without hiring a lawyer (not until the last leg of the employment case in 2005 at least), you'd be inclined to think I am aware of laws and how to efficiently research legal texts. You'd be right. I'm not a lawyer, I didn't go to law school but I am by no means unknowledgeable about law. I had several friends when growing up in France who are now lawyers, my neighbour is a lawyer, heck, my last boyfriend was a law student. I'm still in contact with the barrister that joined the lawsuit against my employer in the last three months of the case (before judgement was issued).

If that wasn't enough, I also am well versed in copyright law for the mere fact that both =jojodrums and I have worked in the music business, in shops, for magazines, hell, we even performed music live together! When we created our first webzine Funky Mofo we had to make sure that we weren't infringing copyright whenever using photographs of artists other than our own and quoting their artwork in the course of an interview. We never had any problems. However one of our staff was found guilty of failing to ask permission from the Irish magazine she was also writing for to use her work with them in our outlet. Her work was removed and even greater care was taken to insure we were always on the right side of the law. Only once was our work taken by another website based in Italy who, at no point, made us aware that they were featuring our work nor did they ask permission to do so. They even changed the name of the author to their own. Needless to say the article was removed after I kindly yet firmly demanded it was taken off their pages.

So in the light of this, I would like to invite everyone to read the following legal texts/articles in order for us to have an informed debate, one that stems from having a full picture of what the issue is.

The issue is not about me. It's got nothing to do with my views of tracing, it's nothing to do with whether or not I think it's a valid learning tool, or whether or not I think it is an art form in itself. My opinions on these details are irrelevant. What is relevant is what the law says regarding copyright, copying and infringement. That's all I'm interested in discussing. Anything else will be ignored.



BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971)

Article 2: Literary and Artistic Works Covered

Article 6bis: Moral Rights
(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Article 9: Right of Reproduction
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10: Fair Use
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 11bis: Right of Broadcast
Article 11ter Right of Public Recitation
Article 12 Right of Adaptation
Article 14ter Inalienable Rights in Original Works
Article 16 Seizure of Infringing Works

U.S. Copyright Office - Fair Use

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

[...] The safest course is always to get permission from the copyright owner before using copyrighted material.

[...] When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

It could be argued that dA is using the Fair Use term in order to justify tracing. For dA to do so would open the door to all sorts of infringements. As Fair Use is a still greyish area, in order to avoid conflict, every single copied piece appearing on deviantART would have to have obtained permission from each original author, famous or not. This means that by going ahead with their current policy, dA could potentially have millions of lawsuits on their hands.

Definition of tracing as listed in the Cambridge University Dictionary:
trace (DRAW)
1: to copy a drawing or pattern, etc. by drawing over its lines through a thin piece of transparent paper
2: to draw a shape by showing the main or outer lines.

Mishcon de Reya Solicitors - Art: Copyright Law, copy-right or copy-wrong?

Unauthorised reproduction and distribution are offences of strict liability so it doesn't matter if the infringer is unaware.

Artists intending to copy should beware [...] who ought not to fall into the trap of reproducing the work or allowing others to do so. In addition, galleries and museums should also look out, as they can be held liable for "dealing" in illicit copies.

If I want to copy an artwork, what should I do?
Infringement of artistic works applies to both copying across media, for example, painting to photography, and across dimensions. Most acts of copying are therefore likely to involve the law and can include, for example, a museum copying, in digital form, images of artworks in its collection.

1 Does UK law apply?
UK copyright law only protects authors "connected" with the UK (that is, either domiciled or resident here) or works first created in the UK. However, because the UK is a signatory to many international copyright conventions, including the Berne Convention, most foreign artists and authors are likely to be protected under UK copyright law.

A valuable article on the importance of protecting original characters and taking action in case of infringement.
WWLegal.com - Property In Fictional Characters


Finally, deviantART is an international commercial website and thus international copyright laws must be adhere to and abide, without exception. See the Berne Convention.



Thanks to Rufus for getting us out of bed at 3.30am and Jo for helping write this journal!



I forgot to mention a fantastic book:

Contemporary Intellectual Property
Law and Policy
by Hector MacQueen, Charlotte Waelde and Graeme Laurie
Published by OUP Oxford (6 Sep 2007)

Authors, editors, and contributors:

Charlotte Waelde,
Hector MacQueen, and
Graeme Laurie, all at the University of Edinburgh

You can actually consult some of its contents online HERE

The most relevant parts, I feel, worth examining are as follows:

What is Intellectual Property?
Section 1.17
Section 1.18
Section 1.19

Artistic Works
Section 2.69

Author’s Moral Rights

International Background
Section 3.31

Paternity Rights
Section 3.35

Paternity must be ‘asserted’
Section 3.36

Public Exhibition of Artistic Works
Section 3.37

Right of Integrity
Section 3.39
Section 3.40

False Attribution of Authorship
Section 3.47

Economic Rights in Literary, Dramatic, Musical and Artistic Works
Section 3.50

4. Part II Copyright 3: Economic Rights and Infringement

International Background
Berne Convention
Section 4.4
Section 4.5

Economic rights in general

Primary restricted acts
Section 4.10
Section 4.11

Secondary infringement
Section 4.12

Economic rights and primary infringements: general principles

General Principles: (a) taking of the whole or a substantial part.
Section 4.15

Issuing
Section 4.44

Use of a Trade Mark for the Purposes of Infringement.
Section 15.4

It should help clarify a few points. You should be able to find this in any good bookstore or maybe the library.

Online stores:

OUP Oxford University Press, the publisher itself says: “the text examines the complex policies that inform and guide modern IP law at the domestic (including Scottish), European and international levels”.

Amazon.

IT Governance.
IT Governance says: “Use this book to gain a highly insightful introduction to the topic intellectual policy law and policy. This highly authoritative book is one of the top-selling books on the subject.”

More information at Law Textbooks – a law textbook resource.

Tracing. It Needs To Stop NOW.

dA's view on tracing - WARNING: HIGHLY CONTROVERSIAL AND NON-SENSICAL!!!
Currently more than 1784 devious rejections against a mere 285 deviants approving! Will dA finally listen to the community that helps it function via their subscriptions and print sales? It should.

Seriously screwed poll about placing tracing works on dA WARNING: HIGHLY UNDEMOCRATIC!!!

And to think some people get paid to do this job... I mean this is not like they're saying it's ok to use trademark work... oh wait: THEY ARE!!!



Sorry for so many updates... Whilst researching copyright law (yes, I do know a few lawyers/barristers/solicitors) I have decided to store my whole gallery (bar stamps and conceptual work) and scraps as a statement of disagreement with the current situation the dA admin is trying to force onto the community that makes it thrive. It isn't about me, it's about being fair and acting within legality.



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A reminder of dA's Copyright Policy for those who never even ventured on the page:

Copyright and Your deviantART Submission

Here at deviantART we respect the rights of all artists and creative people worldwide and we expect our members to demonstrate an equal amount of respect and assist us in creating a beneficial and positive atmosphere for all deviantART visitors and members.

The bottom line is: Just about anything that is on this site, on the web, on TV, on CD's, on DVD's, in books & in magazines is probably copyrighted by someone.

Copyright can be a confusing territory for many people. In many cases the natural confusion over the sometimes varied circumstances surrounding copyright will lead people to rely upon rumor or myth more often than the actual legal facts which naturally confuses the matter even more.

In this document we will attempt to eliminate some of the confusion and counter many of the myths surrounding copyright. Understand that the following form is provided for informational purposes only and is intended to be used as a guide only. The availability of this document should not be construed as rendering legal or other professional advice, and this document is not a substitute for the advice of an attorney. If you require legal advice, you should seek the services of a qualified attorney.

What is Copyright Infringement?

To simplify this question, copyright infringement occurs when you do certain things with a creative work which someone else produced without first getting the proper permission.

Some examples of copyright infringement (this is only a partial listing) can include:

* Placing a photograph or creative work online without proper permission.
* Using a creative work commercially.
* Adapting a creative work of one medium to another, such as making a book into a movie or a photograph into a painting.
* Modifying or editing a creative work without proper permission.

How Can I Avoid Infringing on Someone's Copyright?

The best way to avoid infringing on the rights of another creative person is to use your skill, talent and imagination to create your own completely original work. When we use the word 'original' we don't mean that you must come up with an idea which hasn't been used before, when used in copyright matters "original" means that you created your work without referencing or deliberately copying anyone else's work during the process.

Ensure that all parts of your work, both visual and audio, are your own original creations. If you have used materials which are owned by other people or companies make certain that you have obtained proper permission or licensing for the use before you place your work online.

What Sort of Things are Copyrighted?

The easy answer to this question is that just about any creative work you might find should be considered to be copyrighted by default.

A work is not required to have a copyright statement printed on it or near it in order to be considered copyrighted so do not assume that the work is unprotected simply because you cannot see a notice written anywhere.

Also do not confuse the fact that a work is publicly available with the idea that it is public domain or free for use. Being easy to find on the internet does not affect a work's copyrighted status.

Some Cautions

* In most cases it does not matter how much of the material you have used. Whether it's a single frame, a few moments of audio, a short clip of video or any other sampling it's still considered to be copyrighted and you still require the owner's permission for use.
* It doesn't matter how you obtained the material, it's still considered copyrighted and you still need permission.
* It doesn't matter whether or not you've credited the proper owner, it's still considered copyrighted and you still need permission.
* It doesn't matter if you are not selling it or making a profit, it's still considered copyrighted and you still need permission.
* It doesn't matter if you can find other people using things without permission, it's still considered copyrighted and you still need permission.
* It doesn't matter if you've edited it a little bit or made a few alterations, if it's recognizable it's still considered copyrighted and you still need permission.

What Happens When You Submit Infringing Works to deviantART?

When we become aware that a deviantART submission infringes upon the copyrights of another artist, creative person or company, we will immediately delete it. This is a legal requirement which we fulfill immediately; you will not receive an advanced warning and you will not be given an opportunity to 'fix it'. Any copyright owner following the procedures in this Copyright Policy can require deviantART to remove his or her copyrighted content.

If you believe that a submission on deviantART infringes upon your copyright you may either report the submission using our internal reporting system or send us a copyright notice via email. A member of staff will review your notice and resolve the situation.

If you believe that one of your submissions was removed in error you may contact our helpdesk or otherwise file a counter notice. A member of staff will be made available to you so that the situation can be properly resolved.

If you are found to repeatedly post infringing content your account will be suspended and serious offenders will have their account banned and deactivated. If you are found deliberately misrepresenting the copyrighted work of another as your own your account will be immediately banned and deactivated.

What about "Fair Use"

"Fair Use" is the notion that some public and private uses of copyrighted works should not require the permission of a copyright owner. These circumstances are very limited, complex to analyze under the law and require the help of expert advice from a lawyer. We recommend you talk to your own lawyer if you want to know more about fair use as it applies to the work you are doing. If it turns out that it isn't fair use, you may be liable for very serious money damages.

To learn more about fair use you can go here, here, here, and here.

If you take my work down am i protected from a lawsuit?

No. Even if deviantART takes an infringing work down, if you put it up on deviantART you may still be responsible for very significant damages if the copyright owner decides to sue you.

Notification of Copyright Infringement

This section contains the formal requirements of the Copyright Act with respect to the rights of copyright owners whose content appears on deviantART without authorization.

To file a copyright infringement notification with deviantART, the copyright owner or an agent acting on his or her behalf will need to send a written communication that includes substantially the following:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. In this regard please provide URLs when you identify the location of the material.

4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.


Written notice should be sent to deviantART's designated agent as follows:
DMCA Complaints
deviantART, Inc.
attn. Daniel Sowers Jr
7095 Hollywood Blvd #788
Hollywood, CA 90028
Fax: 323.645.6001
Email: violations@deviantart.com

Under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Consult your legal counsel or see Section 512(c)(3) of 17 U.S.C. to clarify or confirm the requirements of the notice.


Counter-Notification

If you want to send deviantART a counter notice, please contact us by email at help@deviantart.com for assistance and instructions.

Under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please consult the Terms of Service and deviantART's Etiquette Policy in which we explain that you may be removed from the site if you are a repeat infringer or if you violate deviantART's policies.
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Like, er, huuuuuuuuuuuullooooooooooooooooooooooooo! Wake up people, copying is not ok, tracing isn't art, it's art theft. Period. Can you dA admins stop trying to pull cotton wool over our eyes? Do you really think we're that stupid? Not all original artwork belongs to big companies either, a lot of independant artists simply do not have the resources to employ a lawyer to sort out copyright violations on their creations and your "change of mind" regarding tracing is putting these people at risk more than the fat cats but by allowing John, Paul and Tracellera87 to continue their despicable trade, you're only encouraging for a generation of tracers, not artists, to develop. Now the deviant in deviantART takes a whole new meaning!

How on earth is that art?



I'm fed up having to report deviations like this one and getting a note back like this one:

devart said the following:

Your Prohibited Content Violation Report on Venus 12 was reviewed by a member of the staff and action was taken, marking the report as Invalid.

Additionally, the following comment was provided:

No action taken.

Please click here for more information.

This message was generated automatically.

-- deviantART Staff

---------------------------

This isn't art, this is pornography. This particular deviant already suffered a couple of his shots being taken down after I asked one of the GMs for advice and she agreed with my view that it isn't art.

So what does one need to do to make dA's rules regarding nudity and pornography be applied by its own staff?

FAQ #565: You prohibit the submission of 'pornographic imagery'; what do you consider this to be?

FAQ #60: Do you allow "Adult", explicit sexual or pornographic content on deviantART?

FAQ #305: Is posting 'Adult' oriented artwork alright if I censor it first?

FAQ #23: What are deviantART's policies on nudity?

Happy New Year everyone, let's make deviantART 100% pr0n-free in 2009!



On this subject, people in the Complaints forum had very little intelligence about. My feeling this photo isn't artistic has nothing to do with being a prude and I will only be a bitch if provoked. Seriously, people, get real. I'm in my 30s, I am too old and I have had some sexual experiences I could've done without to be even slightly prudish, also hoping for intelligible conversation doesn't make me high & mighty, it makes me opinionated. That's a difficult concept to some but that's the truth. I now understand that this particular bunch cannot reason or be reasoned with and it is futile trying to make sense with its population.

So, if you don't like me being outspoken, don't come and shit in my boots. If you haven't got anything clever to add to the debate, just be quiet. And get it right please, I'm not British, or just European, I'm French. From France. The Hexagonal Country, just off Australia in case you want to find it on a map.

Time to crack open the champagne! Happy New Year everyone!