Artists Using Doll Likenesses without Crediting [Mijn Schatje discussion]

I hope you aren't saying that I am being 'combative or petulant'. All I was asking for was clarification, since I have never been on a forum where the debate forum allowed threads where debate was 'off topic'. I don't think it's 'combative or petulant' to want to understand the rules so that I don't make the same mistake again.

Thank you, armeleia, for clarifying the role this subforum plays on DoA. I think I'll step away this topic now, since so many people here are being so incredibly hostile.

 

I don't think anyone is being hostile, I'd hope we're all mature enough here to separate debate and discussion from arguing and offensiveness. They're simply saying that they disagree with you and that the situation you mentioned does indeed differ from the Mijn situation (which you'll just have to agree to disagree on, it seems) and have explained why they feel that way. For the record, I don't think you were being combative, just assertive in your comments, nothing wrong with that.

 

Agreed; I'm also a little more accustomed to more aggressive debate styles so I'll note for the record that I hope I didn't cause any offense also.

 

What someone stated a bit earlier about using someone's work in a commission peice is not a gray area and is in fact listed in the copyright laws on most if not all of the copyright law sites.

An artist can do a work for hire using an image of someone/something as long as it is between the artist and the buyer/commissioner. This is a one off and in some cases as in the case of artwork can be up to 10 peices of art.



Holders of a Copyright

A copyright is initially owned by the author or authors of the work, except in the case of a "work for hire." A work for hire can arise in two situations: (1) where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation; (2) where two parties enter a written agreement designating the work a work for hire and the work falls within one of nine specific categories of work designated by copyright law. If the work does not fit one of the specified categories, it will not be a work for hire even if the parties have called it one. In such a case, the author or authors retain the copyright and transfer must be accomplished through a written assignment of copyright. Where there is a valid work for hire, the employer who owns the copyright has the same rights as any copyright holder, including the right to initiate an action for copyright infringement.

The ownership of a copyright, or the ownership of any of the five exclusive rights afforded by a copyright (discussed later in this article), can be transferred to another and is regarded as personal property upon the death of the copyright holder. Copyright ownership and ownership of the material object in which the copyrighted work is embodied are two entirely separate legal entities. Furthermore, transfer of an object and transfer of the copyright to that object are separate, independent transactions, neither of which, by itself, has any effect on the other. Therefore, transfer of a material object, such as an original manuscript, photograph negative, or master tape recording, does not transfer the copyright to that work. Likewise, transfer of the copyright to a work does not require transfer of the original copy of the work.

http://www.answers.com/copyright

This woman is not doing a work for hire she is blatantly stealing/tracing others works/creations and using them for profit on a large scale.

 

Wikipedia disagrees with that. Work for hire means either that an employer owns the work of an employee (assuming a contract that specifies it), or that a commissioner own the copyright of a commissioned piece (assuming a contract that specifies it). This allows Microsoft to not credit individual programmers for their work, and allows people to maintain copyrights of their individual characters despite commissioning art of them (amongst all sorts of other grey areas).

This does not apply if the work itself violates the copyright of a third party.

Read here for yourself.

You can't simply get away with plagiarism by claiming you were commissioned to do it. Work for hire assumes completely original work, and simply assigns the copyright to the person paying for the work, rather than the artist.

(I know, I suck at staying out of topics... hopefully this isn't off-topic? )

 

Depends, kinda -- I mean, Disney could hire me to draw one of their characters, for example, which wouldn't be my intellectual property for subject matter, but the commissioner is the owner of the subject matter and, as it's a work for hire, the final work. It really is bizarre, situational stuff. Likeness and so on are pretty complicated matters.

There's actually a good link about it here: http://www.publaw.com/graphical.html -- and interestingly, it specifically mentions dolls if the likeness is 'virtually exact'.

The sad thing? It doesn't seem quite as clear in regard to 2D art made as depictions of 3D ones, which is more the issue with Mijn and her 'totally original from her imagination she just totally dreamed this up like whoa isn't she just the most creative chick ever' (ahem ) images -- if the dolls can be considered 'graphical characters' in some form. Personally, I would be inclined to say they -are-, as if making a 3D replica of a 2D image is improper, making a 2D image of a 3D object should be equally improper.

It's an interesting broader question: if including elements of a copyrighted work in a new work isn't in any way legitimate, would even taking photographs of our dolls -at all-, for fun or commercial use or anything else -- be considered a violation of the doll's copyright?

 

That's the big question, to me, and it's been asked here before in regards to DoA's doll book policy - are we infringing just by taking doll photos? This is something I'm really interested in, and I'm curious to hear everyone's opinion on the subject.

As far as "for fun" goes, whether it's a violation or not, there are those doll companies like Bobobie that have their own forums and encourage users to post their photos, and enter them in contests. But what do the rest think? Do they dislike us posting photos all around, I wonder?

 

I thought this might be useful to post this here...it is also a debate thread...

http://www.denofangels.com/forums/showthread.php?t=265737

Debate is not off topic...what people were trying to explain is that there is a debate thread where you can debate the material you want to debate since the mods think it is not the same topic as this debate thread ^_^

Okies...


tigerbaby, thank you for addressing my concern. I do agree with you and I can understand where you are coming from. I feel mixed feelings on this topic and while I want to see the work for myself in person, I do not want to have it appear to galleries that she is good to have because she brings people in.

 

I think the simple answer to that question might be found in asking: how many of us have bought dolls mainly on the basis of owners' photos? How many of us are in the hobby in the first place because of a glimpse of an unauthorized photo caught in a web search?

However, people and corporations can be 'posessive' of images and ideas, beyond what you or I may find reasonable. The only way to know for sure would be to survey the companies and find out, but I suspect you would get a range of answers as diverse as the companies themselves.

 

And again a reminder about the DMCA which pertains specifically to use on the internet.

According to the DMCA, use of any other person's image without their license and/or permission on the internet is prohibited no matter HOW much manipulation you do. If you find someone using your image you can issue a takedown notice both with their host AND with the major search engines. If the site is hosted out of the USA they may or may not comply; the major search engines WILL block that page for US users (ever wondered why you click on an image or a page and get FORBIDDEN? That's why.)

 

I agree...and I think as long as we are not trying to make money off of their sculpts it is not a big deal. However, I often wonder about the dolls in pictures of outfit/wigs/eyes for sale. I think it might be that companies do not mind this as much as Mijn because these companies are not claiming ownership of the creation of the sculpt of the doll. They are not "stealing" it intellectually (omg I know I epic fail at spelling), they are not claiming it is their creation, just the clothes/eyes/wigs. Futhermore, I do not think most doll owners are claiming the dolls as their own creations. Plus, seeing all these pictures of dolls and people telling others where they come from sells more dolls.

 

The types of pics that show up on DoA and peoples LJs and the like are taken for fun to share with other hobbyist. No money is being made off of them, and it's typical to label what the dolls in the pic actually are.

I think it's also very important to take into consideration the culture that surrounds a particular hobby. BJDs have always been about creativity and artistic expression, which is something companies seem to encourage too. In this kind of atmosphere, I think there is less of an issue sharing doll photos with in the community. If people were to start using them for commercial reasons, then that would change things, but that's an entirely different situation. With issues surrounding use of images and copyright, I do think you have to put the issues in the context of the community and how it operates (and by community I'm including both hobbyists and doll companies), because standards will differ depending on where you go and who you ask. It's not just about the law as a black and white entity, but also how things are perceived by the community (because that's what sometimes is the difference between having a big group up in arms, or companies and individuals seeking litigation and people not being concerned). That's why I mentioned before that many things are not as black and white as they may appear at first glance--except Mijn who went above and beyond it seems, and companies who recast dolls--those are probably some of the most clear cut and easily agreed upon issues that crop up, but often things aren't that cut and dry.

 

In my opinion Mijn Schatje knew exactly what she was doing when she started to trace and make money, and she knew that it was wrong. Any adult in their right mind (even some children) knows that selling plagiarized/traced/stolen art/writing/etc. is wrong both legally and morally.

However, the truth is that I can understand tracing for practice only. In fact, it is how many have improved their own style and talent. BUT, I believe that tracing should only be done in private for learning purposes only and never for show and most definitely not for profit.

 

Agreed. I think Mihn Schatje knew exactly what she was doing. If she is selling stuff to make a profit that is a copy of someone elses work that is already copyrighted, it's illegal. A company can also own rights to their 'look' via trade dress. For example: Pepsi has a certain 'look' that people can say "Hey! That's a can of Pepsi!", besides their logo. Another company can use red and blue in their logo or can, but if it becomes close enough that someone can say - "That looks like a can of Pepsi.", it falls under trade dress for look and the competitor could be legally sued by Pepsi and would lose. I've seen this with a fantasy artist, whose work I collect. She sculpts dragons and other fantasy creatures in a very life-like manner out of heavy gypsum (with some prints here or there). Her pieces have a certain 'look' in the way they are painted, that I could not take one of their paint-your-own sculpts and paint it exactly in the same colors and/or way as a production dragon would be painted, and then sell it for profit. I could always do something like that for my own collection and horde it away on my shelf, marked clearly with my name on the bottom for the rest of my life), as anyone could draw a picture or try to copy something for practice, but not to sell or pass off as their own. I couldn't sculpt or draw one of her dragons with the same style and scale pattern that it could be confused with something she might have drawn or sculpted. The artist is a wonderful person who would give her pieces away for free if she could (her husband would probably smack her silly with a rubber chicken if she did!), but it's her livelihood and if she did not go after people who violate her trade dress or copyright, they would lose the validity to go after people in the future should they decide to just go after some violators. Usually a simple letter to desist works. Doesn't matter the medium, age or intent (some people do honestly make a mistake and not realize, though that doesn't seem to be the case here) doesn't matter. It's still illegal.

 

That was what I was trying to drive at, Tibby. The line from reference to plagiarism had been crossed with MS. Reference is more like having two images to work from... or 5 or ten or a whole google image 12 pages. With reference you get a better understanding of the object and can visualize it in 3 dimensions. Plagiarism with google would be typing in "doll" and grabbing the first pic you see to mess with it. It becomes primary and only source and there's no understanding of how the doll is put together or the correct proportions or anatomy. All the work was done for them... perspective, proportions, lighting to show bone structure, etc and so forth. The only real "work" is to pick out which filter to use. Reference doesn't actually look like any one picture... it looks like a little bit of everything. Found the nose shape over here... eye shape over there.. ooo this is a good ear. Laws of proportion kinda pop them into place. Make the eyes a little bigger and the mouth little smaller and voila! Doll face.

I have heard that the reason people plagiarize is because they are rushed to do something. It starts out with just borrowing and then OMG! Everyone likes it so they continue just to keep up appearances. Or they really like the glory that comes with showing off the stolen piece. When my fanfiction was plagiarized (yeah... characters did not belong to me but storyline and the words surrounding the character names did) it seemed they did it just to get glowing reviews and page views. They tried to pick something popular that would earn them more praise. Praise junkies. The problem was in picking popular, my fans found out and contacted me so I could go have it removed. I averaged around 5 plagiarists a week at some point. MS is counting on the fact that BJDs are popular enough to wow people and yet not popular enough that she will be caught.

 

The sad thing is that, at least judging from her non bjd/copied works, she is talented. There's no reason for her to trace when she would probably do just fine drawing free-form.

 

The problem with that, though, is that every element in her pieces seems to be copied from somewhere - even a rubber stamp set. And if that's what we DO know is copied, then every single aspect may be as well. I just feel like if she did have the talent to draw, she wouldn't have traced in the first place.

 

Drawing really isn't terribly different from tracing, you know; it's just a trick of perception & hand-eye co-ordination. People make it out to be a lot more than it is, but it's a skill that can be learned with practice; some people just pick it up a little easier than others.

What you decide to do with that skill, on the other hand? is where the 'art' comes in. Sad but true: nobody gets famous or wealthy for simply being able to draw well.

Well, that wasn't exactly what I was aiming at, at all. I don't see how making a face via piecework is any less plagiaristic - just more difficult to detect. Does this mean that 'straight' drawing is also plagiarism? I like to draw pictures of my dolls; I like to make them as accurately representational as possible, because I find that interesting and challenging. When I am done, who 'owns' that image? Is it an affront to try and sell or display it?
I'm not even sure myself, anymore; suddenly, making paintings that are just flat swaths of non-representational colour and line is looking increasingly inviting...

To me, what makes Mini Schlemeil's stuff plagiaristic isn't the appropriation of an unaltered image - it's the failure to justify it with meaning. There is nothing in those pictures that infers to me any content; they don't really even pass as decorative, imho. The only purpose I can see them serving is "a terrible example to others" (to mis-quote either Groucho Marx or Mark Twain...or both!)

 

That's how I feel about it. I can make photos look "artistic" in 5 seconds with the simple application of some photoshop filters. Just because it takes a while for her to trace, overpaint and cut'n'paste from various other photos doesn't mean she has talent, it just means she has a lot of time on her hands. I could do it too if I had the time, patience and software and so could any of you. No real talent was required, unlike the photographers, faceup painters and other artists from whom she stole the elements of her "art". They did the real work with their real talent, Mijn Schatje just copied it for profit.

 

Yes, Reshana, you worded it just how I always try to, xD.