How to Make Your Content Great Again and Make The Sloth Empire Pay For It

Not too long ago in a galaxy quite close to home there was an organization of some size that decided “hey, let’s just casually grab these cosplay photos and use them for an online ad for our event”. Unfortunately for everyone involved the organization in question were too lazy to actually check with the photographers and models, so for the sake of dramaturgy I’m going to call them the “Sloth Empire”.

Photo manipulation: Unknown

Now I’m not really going to go into the specifics of the actual story (because that would be unprofessional of me), but I will show you readers some of the most common objections and suppression techniques such organizations will  use to justify their actions or avoid a payout. I believe the saying “everyone in life has a purpose, even if it’s to serve as a bad example” is quite fitting.

The legal jibberjabber in this post will be directed towards my Norwegian readers but there are most likely relevant paragraphs in your respective, local copyright laws if you live in a country that signed the Berne Convention or the TRIPS agreement – which includes pretty much every civilized country in the world including North Korea. It’s a fairly low bar.

~ * ~

So one day you suddenly discover your picture on some site, ad, flyer, (whatever really), and you feel a pressing need to rain down righteous vengeance upon the filthy heathens that monetize your art or your face without even having the decency to ask first. Where do you go from there?

The first step towards setting things right whether you’re the photographer or the model in a photo, or if it’s any other type of artwork you’ve made, should always be to establish that the offending party is in fact in breach of your intellectual rights. My advice is to ask the Sloth Empire in a polite and respectful manner to clarify 1) how they obtained the rights to said picture(s) and 2) to detail how they have been using the picture(s) in question. Every now and then there will be a perfectly reasonable explanation as to why your face is plastered all over the internet. Most of the time however, the the answer will be “someone sent it to us”, or “we found it on google”.

Once it’s clear that they do not have the necessary rights, or if you dispute the rights they claim to have, it’s also common to state that the damage has already been done and to request that they stop using the picture until further notice. At this point you should ask them to suggest how you can resolve the situation amicably. In a perfect world The Sloth Empire would accept responsibility immediately and ask for your account information or an invoice so that they can pay your going rate for said photo. While this does happen, more often than not they’ll just give you the finger and It’s time for an epic battle of lightsabers (emails), force lightning (legal paragraphs) and wills.

To help explain how organizations like The Sloth Empire often react to fight a copyright claim I’m going to use an adapted Kübler-Ross model, also known as “the five stages of grief”. Just like with the Kübler-Ross model these stages will appear interchangeably and some may or may not appear at all. The whole model may in fact be deeply flawed but that’s a whole other debate.

~ * ~

The first response you’ll get from your garden variety of The Sloth Empire is often some version of “we’ve done nothing wrong”. They might argue that you’ve signed some far fetched, deeply buried Terms of Service agreement, that the copyright claim should be directed at someone else entirely or pull off some sad story about that one time their dog ate their homework in fifth grade and how they’re not responsible for anything in their lives after that. I’ve heard some pretty bad excuses over the years.

At this point you’ll ideally be talking to an editor-in-chief (the guy in charge of publications) but if you’re not, make a request to talk to the guy in charge. Your answer to excuses like the ones above should be two words; “editorial responsibility” and then some more words saying (much like in a game of tag) “You’re it”.

Editorial responsibility is (a bit simply put) the idea that the publisher of a publication, Instagram account, webpage, newspaper or whatever really, have the final responsibility to make sure that any and all content published on their platform adheres to certain legal and ethical standards. It does not matter if it was their assistant’s cat who posted a photo which was approved by some latte-drinking, unicorn riding, glitter-bearded graphic designer from fucking Narnia – it’s still their responsibility. If they have any sense of decency they should pay the starving artist and then make a regress claim towards the responsible party if there’s actual grounds for that.

It’s also worth to notice that Norwegian Copyright Law is quite strict regarding the how and when and where pictures are used. While you might have agreed to having your photo shown on-screen as part of a competition that does not suddenly mean that the Sloth Empire can use the picture for any and all competitions, advertisement or edit and alter the photo in any way unless this was specifically agreed upon in contract. If you’re the photographer look up §2, §3§39a, §39b and §43a. If you’re the model/cosplayer look up §45c.

When confronted with a reminder of their own responsibility and the odd legal paragraph most professional editors will cave in and throw money at you to avoid further embarrassment. The Sloth Empire however, will not. They will accuse you of destroying the cooperative spirit between everyone involved, they will rave and thrash about making unfounded claims, portray you as a gold digger and threaten to make you suffer in the most insufferable ways. The most common of these vile attacks is to threaten to sue or make a regress claim towards the model, indirectly saying “do you really want the model to suffer for this?”.  No one actually bills the model though.

Repeat the things you said about editorial responsibility and the relevant paragraphs from above. Tell them that if you are not able to come to an amicable agreement you’ll just send them an invoice. If they pull the whole “the model will suffer”-routine, question their humanity.

~ * ~

Right about now the Sloth Empire will usually start saying they used the photo “in good faith”, which is an actual legal concept between two roughly equal business partners. The problem is that they’re an Evil Empire TM and you’re a simple moisture farmer, a hobbyist-to-semi-professional artist struggling to make ends meet. You’re not equal partners in business. Cite the editorial responsibility bit yet again and say something along the lines of “Negligence of legal responsibility does not equal good faith. What exactly has the Sloth Empire done to ensure they had the proper rights to publish this picture?” In most cases the answer will be something along the lines of “we didn’t even know this was a thing” – which is exactly why they’re not going to make the model pay the invoice.

It’s also quite likely that The Sloth Empire ask you to make a deal that does not involve an exchange of actual, real life money. Instead they’ll offer something universally known as exposure dollars or just ‘the e word’. If you know your basic, latin alphabet you’ll know that after e comes f, which will make it easy to remember that the right response to an offer for exposure is: “Fuck no”.

Don’t get me wrong, exposure can be very rewarding for everyone involved when done right (and in such cases you’ll rarely hear the actual e word used). Pretty much everyone in the community does tons of work for free, but that does not magically equate to businesses like the Sloth Empire being entitled to use your work for free and without asking. While they are making/saving an easy buck by exploiting your work, you’re not going to be able to buy food, new crafting materials or cover your travel expenses with exposure. Say no to exposure. It’s bad for you.

Right now you might be thinking “just exactly what is my picture worth anyway?” and the answer is that it’s probably worth something within the range of 1.000 – 5.000 NOK depending on the quality of the picture, what it’s been used for and how much douchebaggery the Sloth Empire pulls out of its seemingly endless orifices.

~ * ~

Now that you’ve established that there’s an actual claim and that The Sloth Empire is not going to be able to worm their way out of the situation they’re quite likely to delve into some deep depression. Unlike the Kubler-Ross model where said depression is internalized resulting in apathy and self-loathing, The Sloth Empire is more likely to pin all of their woes on you.

“We’re good people, why are you doing this to us?”, “You only care about money”, “You’re such a terrible person”, “Go away!” Ad hominem attacks are not all that uncommon (but did not happen in the specific case this post is very loosely based upon).

This is your time to go on the offensive. Suggest that the whole situation can go away if they just agree to pay a reasonable invoice for your content. The invoice should be at twice the actual cost of buying a photo for the purpose your content has been misused for. This is a well established practice that most photographers (at least in Norway) adhere to. A picture for general web use usually costs about NOK 1.000 so a good place to start is NOK 2.000 per picture. If you demand some outlandish sum you’ll just be laughed at and lose in court.

Another approach could be to suggest something entirely different like free tickets, services rendered or anything else you deem appropriate that holds a reasonable cost for the offending party and equally reasonable value to you.

The fifth Kübler-Ross stage is “acceptance”. It represents the notion that “I can’t fight this” and the realization that death is in fact inevitable. There’s supposed to be some sort of relief in there, but Sloth Empires are powerful in the dark side and there’s often just hate, greed and anger. Don’t expect them to like you any time soon. They will however accept the invoice (or whatever solution you deem to be in your best interest).  If you’re lucky they’ll also be a lot more predisposed towards actually asking the creative people behind their content the next time they need something. They might not like it, but they’ll do things the right way (or fuck up even worse, as more than one best-unnamed-organization ended up doing).

P.S. Always remember to be polite, respectful and understanding in your communication with people who have misused your art. Mistakes happen. What separates the good guys from the bad is what they do to remedy the situation. Money is not always the answer, what’s more important is that organizations learn to respect the creatives they rely upon. A good solution benefits everyone.

DM.

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The Art of Asking

A lot of people have asked me to write about copyright, and I’ve been planning to do it, but have been postponing it for quite some time now simply because I do not want to come across as the angry neighbor who shouts “get off my lawn” and waves at you with a shotgun whenever you trespass on my (intellectual) property. As a photographer, copyright issues can easily become a public relations nightmare. You are very capable of, with the law in hand, effectively alienating the better part of your customer base in a heartbeat, so instead of focusing too much on what you cannot do and how dire the consequences might become if you do, let’s try another approach..

~ Copyright 101 ~

Copyright is a legal right given by a country that grants the creator of an artistic work exclusive right to use and distribute his or her creative content [1]. This means that a painter, illustration artist, photographer, writer or any other creator of artistic work has the sole right to display his or her work in public. In addition to the right of distribution creators also have “moral rights”, which include the right to be attributed (credited) for their work whenever it is displayed publicly.

To be able to lawfully publish someone else’s work you therefore need either a transfer of copyright or more commonly a license. Licenses grant you the right to publish an artwork under a specific set of conditions. Selling such licenses of their work to private persons, newspapers or businesses is how photographers usually make money. In theory, that is.

~ Private use ~

In real life, most convention photographers put hundreds of hours of work-time into bringing out the best in you and your costumes and we barely make enough to cover the travel costs from it. Instead we often give out so called personal licenses, a free-to-use license that give you as an individual the right to publish our work on platforms you yourself control. This means you can publish a photo I’ve taken on your facebook (profile and page), Deviant Art or other social media accounts that represents you as a person as long as you credit everyone involved in the project.

Other than that there’s not much you can do with the photo. You cannot crop or edit it, submit it for community spotlights or contests or otherwise allow third parties to publish the photo. Some photographers allow a certain leeway when it comes to side-by-side comparisons, header photos and other Facebook trends as long as you don’t crop the picture (I’m one of those), but you should always ask first to see if it’s okay.

~ Commercial Use ~

A lot of cosplayers also do lineups where they feature what costumes they are going to wear at a given, upcoming event. The real problem here is not the lineup in itself but when people add official logos, fonts and information from the event organizer to the lineup, essentially creating free marketing material for the event.

Marketing material is expensive. If the event themselves wants to create a lineup header with three pictures they would have to pay the respective photographers a decent sum of money – something along the lines of what would actually cover the cost of travel, (a relatively cheap) hotel and food for an entire weekend convention per picture. But why would an event need to create marketing material when you do it all for them for free?

So please stop up for a second and think before you act, because you might inadvertently not only be in breach of the terms you have agreed upon with your photographer, but you might also make it a lot harder for us to be able to do what we love.

I’m going to write more about some of the pitfalls of commercial use at some later occasion, but for now let’s just say that if anyone who is not yourself wants to use, or greatly benefit from your use of a picture of you in any given context you need to get in contact your photographer before putting it online.

And that’s really the essence of what I want to communicate in this post.

~ The Art of Asking ~

Like all creative artists we photographers love it when people want to use our photos, whether it’s for features, interviews, contests, headers, lineups, prints or anything you could think of – we’re more likely to embrace the idea than not.

But we also have to protect our work from those who would want to exploit it. We have to read the fine print, making sure we’re not selling our very souls in the process of getting fifteen seconds of internet fame. We may have to consider that “if I do this work for free it means some other photographer isn’t getting paid” and if there is money involved we need to make sure we get a slice of the proverbial cake. We have to make an informed choice.

By asking us for permission you are allowing us to be nice and say yes when it is appropriate, and say no when it is not. We get to be the good guys who let you do cool stuff with our photos instead of the grumpy shotgun-wielding neighbors who keep sending you angry messages about how your feet is planted on our lawn.

So if you’re going to remember just one thing about copyright then remember this: Talk to your photographer.

~

(And yes the title is totally a reference to Amanda Palmers book “The Art of Asking” which you can read more about or buy here)

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Cancelled Competitions, Ethics and Those Sort of Things

There’s been a lot of chatter in the local scene the last few days in regard to the cancelled cosplay competition at Retrospillmessen in Sandefjord, and I want to make a few points that are entirely my own. To that end, I’m going to write in Norwegian.

I mylderet av meninger rundt kanselleringen av konkurransen på Retrospillmessen i Sandefjord har det kommet frem hovedsakelig to motargumenter. Det første er et argument om beleilighet og det andre et argument om målgruppe. Jeg skal komme tilbake til dem senere, men først vil jeg prøve å argumentere litt saklig for hvorfor det å kansellere var en riktig beslutning.

Selv om cosplaymiljøet har opplevd sterk vekst de siste årene er vi fortsatt et lite miljø. Arrangementene våre er (med unntak av Desucon) drevet av ikke-kommersielle hensyn, frivillighet, blod og svette . Målet er ikke å tjene penger, men å skape en god opplevelse for miljøet. Både Banzaicon og KawaiiCon er slike ikke-kommersielle tiltak for miljøet, og i Norge har vi i flere år hatt et eksepsjonelt samarbeid mellom de ikke-kommersielle aktørene, der man utveksler kompetanse, teknisk utstyr og lykkeønskninger seg i mellom.

De siste årene har vi som miljø blitt store nok til at også andre interesser har begynt å bli oppmerksomme på oss, og cosplayere inviteres i større og større grad til å delta på arrangementer som i utgangspunktet ikke er skapt for og av oss, men som kan appellere til oss på ulike måter (som spillmesser, LAN, filmpremiærer etc). For noen av dem har satsingen vært god, og for andre har cosplayere først og fremst vært gratis reklame, uten at cosplayere har blitt ivaretatt på noen god måte. Jeg liker å tenke at satsingen hos Retrospillmessen har vært av det gode slaget.

Samtidig har retrospillmessen og banzaicons nye satsing på cosplay vært et tiltak med økonomiske muskler og kontakter inn mot næringslivet som det blir vanskelig for Kawaiicon å konkurrere med. I tillegg er Banzaicon en av de mest profilerte aktørene i dette landskapet, og hva de foretar seg og støtter opp rundt har betydelig tyngde og rekkevidde innad i miljøet.

Nå var det at datoer skulle kræsje aldri tiltenkt, og det var nok heller aldri noen uvilje med i bildet når man først ble klar over det, men man satt fortsatt igjen med et utrolig skjevt maktforhold mellom partene. Med sin tyngde i miljøet, brede informasjonskanaler og muligheter til å skaffe mye større premier til sin konkurranse enn det KawaiiCon kunne drømme om, hadde Banzaicon og Retrospillmessen alle forutsetninger for å kunne drive en konkurrerende aktør ut av bransjen. Men er det virkelig et slikt miljø vi ønsker?

Banzaicon gav oss et klart nei. De ønsker ikke å være den store aktøren som ødelegger for den lille, og for det fortjener de stående applaus.

Motargumentene har først og fremst vært at messa er mer beleilig for enkelte, altså at det er lettere å komme seg dit, eller at det passer bedre med personlige interesser. Men da velger man jo bare å dra på spillmessen? Det blir sikkert et dritkult arrangement, og det er ingen ting som stopper deg fra å dra dit og ha det kult, med eller uten cosplay. Og hvis motivasjonen for å dra dit først og fremst var alle de fete premiene i konkurransen, ja da har man bevist poenget mitt ovenfor – at man på kort tid har klart å skape et sterkt tilbud til sine besøkende. Og det er jeg helt sikker på at Banzaicon vil gjøre for retrospillmessen neste år, når det ikke kræsjer med KawaiiCon.

Når det kommer til argumentet om målgruppe så er dette litt mer komplisert. Retrospill er en litt annen hovedmålgruppe enn det et rent cosplay event har, men som jeg innledet med er vi et lite miljø og for mange av oss som bor lengre øst kan det for eksempel være mest beleilig å dra på spillmessa dersom de har et godt opplegg. Det er også mange i cosplaymiljøet som er veldig glade i retrospill. Problemet oppstår når man markedsfører to cosplaykonkurranser på samme helg, i samme geografiske område i nøyaktig de samme kanalene. Det gjør at man langt på vei konkurrerer om de samme besøkerne. KawaiiCon er et lite, ikke-kommersielt arrangement som er helt avhengig av billettinntektene sine for å holde det gående,  og det betyr at det lett blir kroken på døra dersom billettsalget svikter, og det hadde vært forferdelig trist for alle de involverte partene.

Et tredje argument er at Banzaicon har et ansvar ovenfor sine samarbeidspartnere, og det er helt riktig. Men et slikt ansvar må ikke gå på bekostning av miljøet som helhet, og Banzaicon tok en utrolig modig beslutning som jeg tror alle til slutt vil tjene på. Det er ikke enkelt å avlyse så tett opp mot et arrangement, men innad i miljøet har beslutningen hatt en sterk (og veldig positiv) signaleffekt. Hvis jeg var Retrospillmessen ville jeg sett på dette som en mulighet til å skape litt god PR for neste års arrangement!  Man kommer langt ved å vise litt storsinn, så få heller i gang et samarbeid med KawaiiCon, gi de litt stæsj til premiene sine (billetter til neste års spillmesse?) og dra dobbelt så mange cosplayere neste år.

Jeg ønsker i alle fall både KawaiiCon og Retrospillmessen lykke til, og klarer man å unngå en kræsj neste år skal man ikke se bort i fra at jeg blir å finne hos dem begge.

(NB! I den første utgaven av dette innlegget stod det at Retrospillmessen var et kommersielt foretak. Dette medbringer ikke riktighet og beklages på det sterkeste. Jeg mener selvfølgelig ikke å ta noe bort fra det flotte arbeidet de gjør med å skape en godt arrangement for sin målgruppe. Jeg hadde selv dratt på messa om den ikke hadde sammenfalt med Kawaiicon).

 

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This is Why We Can’t Have Nice Things: Riot Games

People often ask me if they can use my pictures for a vast array of different things, such as social media accounts, Deviant Art, competitions, webzines, youtube videos or facebook groups. This is a really good thing. I love it when people ask me for permission to do all sorts of things with my photos because 1) it’s polite to ask and 2) it keeps me informed about what my pictures are used for. It also lets me be the cool photographer who says yes to a lot of things. As part of this new blog adventure however, I’m going to be writing about the times I have to say no and explain it from an artists perspective.

So without further ado: Welcome to the “This is Why We Can’t Have Nice Things” column, or TIWWCHNT for short.

Most cosplayers are people, and most people don’t really take the time to read things – like at my grandmothers 80th birthday party this weekend where those of us with allergies had one cake that said “gluten and lactose free” in big letters, on a table full of deliciously looking normal cakes and everyone at the party ate the allergen free one. The same principle that applies to cakes at a birthday party goes for photo/art release contracts. People just don’t read them.

There are a lot of companies out there who would love to feature your creative content in one way or another. Some, like Super Cosplay Girls are no fuzz, credit properly and only use the photos for what they are supposed to. Now please go submit my photos to them. Others might be advertising in big, flashy, neon colors something along the lines of “SUBIT YOUR ART HERE AND WIN A METRIC TONNE OF WORBLA“, and you, the model, just go “WHOA MAN! I gotta get in on some of that action!” Some of the times those companies are cool, and their contests and community spotlights completely legit. Some of them are Riot Games.

Riot Games, the owner of the incredibly popular League of Legends game run a youtube channel called All Chat that does a community spotlight section in each (?) episode. I havn’t really bothered checking out the show in itself, but what I did check out was the Official Fan Artwork License Agreement that you have to declare you’ve actually bothered reading  before you can submit your work.

After a bit of fairly standard legal introductory nonsense it opens: “I hereby grant to Riot Games and its agents, affiliates, successors, and assigns a perpetual, irrevocable, universal, non-exclusive, fully-paid and royalty-free, sub-licensable, and transferable license to exhibit, use, distribute, and commercially exploit the Artwork or any portion, derivative, or modification thereof in any manner and for any purposes… Riot Games shall have the right to edit the Artwork in any manner and for any purpose, and to use any ideas, concepts, knowledge, or techniques contained in the Artwork for any purpose.”

In simpler words you give them the right to forever use the submitted artwork in any way they can possibly think of. Including monetizing your content while you get nothing. What you are supposed to get In return is all the exposure from having a big gaming company publish your work.. or..?

The answer is no. Riot games makes you waive your moral rights to the submitted artwork, which includes the right to be credited whenever it is used. Paragraph 2d of the License Grant even goes so far as to specify that “nothing in this agreement shall be contrued to grant me any right or ownership with respect to any content or intellectual property owned or licensed to Riot Games”.   Licensed is the key word here. Because Riot Games is saying that when you license something to us, you give up any and all control over the submitted material. For all practical purposes they own it now.  You still own it too by the way, but Riot Games could send you angry letters claiming you are in breach of their legal jibber jabber if you decide to monetize it somehow.

Now this is a pretty far fetched contract already, especially considering League of Legends is actually just a ripoff of another game, but that’s a whole other discussion I’m not going to go into and it actually gets worse. At some point some Riot Games lawyer-type probably said something along the lines of: “Hey you know what guys? Some of this shit is probably illegal in a lot of countries. Maybe we should make sure we get as much as possible out of the submissions even when local laws prohibit these kinds of completely one-sided contracts” – and so they did. If your local law does not allow a company to buttfuck you over if you hit the submit button then they have ensured that “the.. licensing of rights shall be modified to the extent necessary to comply with such local law while giving Riot Games the maximum rights possible to use and exploit the Artwork”.  Fancy that!

Seriously guys. This is rock bottom, right?

Nah.

Because section 4b and c  of the contract specifies that anyone associated with Riot Games in any way, from the top CEO to the volunteering coffe-runner at a convention, be protected from ANY action or liability that might infringe on the artists copyright. And and the same goes for your identity. The contract specifies that Riot Games may publish your personal information, ignore any and all privacy rights, including “defamation or portrayal in a false light, whether intentional or unintentional..  to the extent permitted by law.” If Riot Games (or anyone associated with them) want to say that your mother was a hamster, that you cannot draw or take a photo even if your life depended on it or that you’re the half-nosed, hairy lovechild of The Dark Lord Voldemort and a particularly wooly sheep THEY CAN DO SO because you’ve submitted a picture and said “Yes Riot Games, you can call me all the filthy things you want”.

I’m starting to get carried away here so lets just get to the point: This is probably the worst license contract I have ever encountered during my time as a cosplay photographer. I’m not saying Riot Games would actually do all these things, they probably wouldn’t. But this contract both completely sever the artist from any ties to his or her creation, and at the same time absolves the company from any and all responsibilities in regard to how they govern said licensed material. It is a completely one-sided deal with only the marginal benefit of maybe getting some exposure if- and only if – they decide to do a community spotlight post with credit back to the artist. Which is totally up to them.

Now I’m a total exposure whore and would probably sell my granny on ebay if it meant I get more likes on my facebook page, but this is just wrong. This is not how companies who rely on great art are supposed to treat the artistic community. And that is exactly why you’re not going to see any of my photos featured in any channel that requires me to sign the Riot Games Fan Artwork License Agreement.

Riot Games – This is why we can’t have nice things.

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And so it has begun.. again.

Every now and then there’s a case that makes me think “damn it, I wish I still had my blog so I could write about this”. Then I remember that I’ve had dozens of blogs and deleted them all eventually. But maybe it could turn out differently this time. I could do some photo Q&A’s, expose the odd bastard who tries to exploit my work, or write about how much I hate riding the bus, how I’m terrified of seagulls or just leave the whole thing dead in the water until something good comes up that makes me want to write again.

Well, this is the blog. Now I just need to come up with something remotely creative to write.

I have a few  ideas, but will happily take suggestions too.

Cheers,

Dan.

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