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your rights to sell art
kiwi123
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March 7, 2007 - 5:51 pm
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Over on military-meshes, one of our members has had the “pleasure” of being contacted by lockheed martin to stop selling his artwork depicting an F-16 (http://www.military-meshes.com…..php?t=1355)

I asked him to post this on Ehangar, as this is surely a very valuable discussion topic for all aviation artists. But as this is basically starting to lead its own life on milmesh, I thought I post it myself here.

He posted:

“I did this art a couple years ago, for a print I wanted to sell on Cafe Press. But after being contacted by Lockheed Martin to “Cease and Desist”
I took it down.

I have it hanging in my office though. Lockheed Martin, however, was nice about it though they said they really liked it, but that I couldn’t sell anything that was their product, unless I go through their marketing division.”

“It was actually a group that was in charge of Lockheed Martin’s trademarks, I forget the name, but they represented Lockheed plus many more. I’ll go find the papers, because they sent us a whole packet of information and the laws. I talked to the guy personally, what he said, is that I could not have any kind of likeness of Lockheed Martin products and that they deal with Cafe Press a lot. Sorry guys, I sure didn’t mean to cause a shock wave through the Aviation Art community. The company acts on behalf of Lockheed Martin, so in essence they are the “voice” of Lockheed.

I even asked him about aviation artists and he said what they (artists) had to do was to go through them first, as all of Lockheed Martin products were closely monitored, basically rights managed. As a production artist myself, I deal with this all the time, so I understood rights managed as opposed to royalty free. And all of Lockheed Martin products are rights managed copyrighted stuff. What he was saying to me is that I couldn’t even make a painting without their permission.

What happened to fair use?

Any lawyers here? Could we look into this? Meanwhile I’ll see if I can find that information and post it here for all to see.”


I just saw this on CafePress – and this also applies for aviation art with a company like Lockheed Martin.

http://www.cafepress.com/cp/in…..p/law.aspx

This statement on CafePress sums it up. Though it doesn’t state my exact situation, the cease and desist from Lockheed Martin highlights that this is what I did. I guess in their eye’s, my painting was a representation of a product and that I shouldn’t be selling it without their permission. Even if it’s my own interpretation of their product.

“I took the photo, so I can use it however I want.”

FALSE. Simply taking a photo of a person, company, brand, logo or the like does not afford you the right to sell merchandise featuring that photograph. There are two distinct intellectual property rights in a photograph: (1) the rights in the photograph itself and (2) the rights in the subject of the picture, such as the product or person shown in it. For example, if you take a photo of a celebrity, you only own the rights to the photo, but not the right to use the photo of a celebrity for merchandise sale. In order to sell merchandise with the image, you will need to obtain explicit permission from the celebrity.”

To me this sounds like a nightmare for all of us. Opinions ?

Charles McHugh
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March 7, 2007 - 6:43 pm
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I have only heard of this before regarding advertising revenue. Motor Sport artists run the gauntlet with companies who pay big money to manage advertising and do not appreciate photographers or artists making a crust without having paid royalties.

It is rarely the original manafacturer that complains, but third parties.

I suspect that Lockheed are employing a big brother strategy in that few are able to contest what could well prove to be a minefield.

As a precident, it could all bar landscapes (in any media) at the stroke of a pen. You would think that Lockheed would appreciate their products being depicted on canvas, as art historically lasts for hundreds of years. Which takes me back to an advertising company flexing muscles that may have never been tested.

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mannyromano
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March 7, 2007 - 7:08 pm
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Interestng topic. I wonder if the AASA has had any discussions about this.

Experience the joy of painting all day, every day with Bob!

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March 7, 2007 - 7:16 pm
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This, I have to say, does not surprise me. After all, Lockheed-Martin are still creating an F-16 product at this point in time, in various guises. As such, laws pertaining to the rights of depicting any products apply – that’s true for an F-16 just as much as, say, a box of branded cereal. At the same time, one wonders whether other aviation companies decide to exercise such particular controls over their products.

The Virtual Aircraft Website:

http://www.the-vaw.com

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March 7, 2007 - 7:28 pm
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A factor in this may be if the image was digital.

Digital art in some cases is as good as a photograph, and if it is perceived as a photograph it could give rise to this dispute.

I doubt if Robert Taylor is going to lose a second of sleep over his depiction of an F16. Digital or not, it is all a bit petty. Perhaps this is why the old and bold never moved into fifties jets hoping that WWII images would not attract such attention. I need a smiley of Bart Simpson mooning to conclude this post, if anybody has one, please forward a URL.

Got one, this is for all the PC extremists that threaten fellow artists:

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Wade Meyers
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March 7, 2007 - 9:24 pm
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I’m not a lawyer, but here goes . . .

My friends in the plastic scale modeling community went through this quite recently. I don’t know the exact details, but I do know that certain products now require a “license” from the “rights holder”. For example, before Tamiya can produce a Lockheed (the current F-16 “rights holder”) Fighting Falcon model, they must have obtained a (paid for) license to do so.

What this means is that each model kit costs a bit more – not much, though, when the license fees are spread out over thousands of models.

On moral grounds, I sided with the uproar of the modeling community when they said, “Geez, they’re only plastic models!”. But I reluctantly parted with them on legal grounds. Yes, the F-16 was and is produced on government (public) contract, but I think the point some modelers missed was that General Dynamics/Lockheed are private companies, and they are in the profit business! Thus, their designs, and the likenesses of said designs, rightfully belong strictly to them, not the government who let the contract … unless the contracts specifically specified otherwise.

The only way for the government (the taxpaying public) to own both the products (the jets) they paid for and the general rights to that product would be for the contract to specify “work for hire”, or the legal equivilent, that is, in that case the government is paying a fee for the entire work (all design work and copyrights and the final products themselves) done in relation to the project – everything done in relation to that project belongs to the vendee – everything. I seriously doubt General Dynamics, later Lockheed, lawyers let that little “work for hire” point work it’s way into the contract(s). Why? Because there’s money to be made with future foreign sales, etc, not to mention orders over and above the initial contract, price increases, etc.

Now, as for us artists (finally – !), back when the modelers were debating the issue I saw an immediate parallel to the selling of our prints for profit of the likenesses of “copyrighted” designs, and I had hoped we’d get “passed over” since there can’t be a whole heck of a lot of profit for license fees for selling 150+ F-16 lithographs and the like … but I’m afraid if they want you to stop selling your F-16 print then they are well within their legal rights and you must stop, as the artist mentioned in the first post had to do.

I have a little bit of a problem getting “approval” from Lockheed to do an F-16 painting, but that’s nothing compared to what really frightens me: if we have to pay a “licensing fee” for the privilege. That will spell death for aviation art print publishing for all but the few galleries who can pool their resources to pay the required fees. Sure, one may argue that prints may cost “only” $20 more (or maybe $200 more – who knows?!) or whatever, but what independent artist can afford to reduce their margins that much? Charging more will offset the license fees, if the market will bear it, but I suspect that the additional hassle of having Lockheed, et al, crawling up your anus to make sure you ONLY produce “X” prints, plus the fact (as discussed on the current NT thread) that prints aren’t all that profitable to begin with, will make most of us just say, “da heck with it!”

Hmm, I wonder if the upcoming “price increases” of RT’s work has anything to do with this subject? But, I digress …

Three questions at the moment I wish I had the answer for:

1. What about if I quit doing prints and only sell original paintings? If we advertise them for sale on our websites, will be have a “ton of Lockheed bricks (lawyers)” fall on us demanding a cut? Or worse yet, will they drag us into court for not consulting with them first, and demand that we not only pay them damages, but destroy the art?

2. How far back do they want to press the “copyright” issue? In other words, will Lockheed P-38 paintings be subject to the Lockheed “rights” police? I don’t know whether or not “Lockheed P-38” model kits are subject to the licensing fees. We need to find out if that’s so, because there’s not a big leap to selling P-38 prints.

3. Who will do the actual pursuing of us artists? As most here know, in some cases the original manufacturer no longer exists or the “rights” have been sold or absorbed by other companies (as with the P-51), but certainly somebody somewhere legally owns the “rights” to most designs we can think of dating back to the WWII era, if not all the way back to WWI.

I’m not picking on Lockheed specifically, since I believe Boeing and a few other “big” companies also got into the act with the model companies, but in the end it really comes down to the individual companies or “rights holders” – which ones have the resources to pursue artists and the like. Lockheed obviously does … but then there’s aviation photographers and other artistic professionals who “capture” images of subjects the likeness of which is owned by another. Geez, where does this stop?

This will be interesting to watch, but I for one certainly won’t tempt fate by doing any F-16s or for that matter any other prominent currently operating US designs anytime soon! lol

I’m glad I specialize in WWII aircraft … my personal gut feeling for us artists is that the “rights police” are mainly concerned with currently operating designs, like the F-16 or F/A-22, and while they may indeed decide to go after “high visibility” model companies like Tamiya or Hasegawa and demand a license fee for producing that P-38 model (like I said, I don’t know if the WWII designs are subject to the licensing fees or not, but if Lockheed, for example, owns the “rights” to the P-38, then hey, there’s licensing money to be made!), I think we artists are safe in regards to producing original artwork, at least, of “copyrighted” designs of WWII subjects … selling prints may yet be another matter altogether, though.

I suspect that it will take a court case to resolve this issue. High-visibility model companies are one thing, but luckily artist’s rights have always been fairly well protected by the law – so far.

Thanks for putting up with my ramblings …

Wade

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March 7, 2007 - 9:48 pm
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I’m surprised by this story.
lockheed Martin is really supporting aviation art. Code One magazine (the LocMart Corporate mag) has featured K. Price Randell on many covers and even produced a special artwork issue (with the adresses of the artists included). So now, they change their minds on an aircraft which is almost at its end of life …

Did this outsourced company to manage the “marketing” is not taking some dumb decisions on their own ?

My painting of the Tha?? F16A has been seen by LocMart employes and even commented by the people at Code One and nobody came back to me to says stop making artwork about the F16 or enquired to know if I was about to sell related prints …

Curious story.

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Wade Meyers
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March 7, 2007 - 9:53 pm
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I’m surprised by this story.
lockheed Martin is really supporting aviation art. Code One magazine (the LocMart Corporate mag) has featured K. Price Randell on many covers and even produced a special artwork issue (with the adresses of the artists included). So now, they change their minds on an aircraft which is almost at its end of life …

Did this outsourced company to manage the “marketing” is not taking some dumb decisions on their own ?

My painting of the Tha?? F16A has been seen by LocMart employes and even commented by the people at Code One and nobody came back to me to says stop making artwork about the F16 or enquired to know if I was about to sell related prints …

Doesn’t surprise me at all … 98-99% of Lockmart’s employees, I’m sure, think our artwork is cool and ‘neat’. However, go down the hall to the Bean Counting department, and/or the marketing types trying to justify their jobs, and you’ll get a far different reaction.

I said in my post above that the “bean counters” were indeed well within their rights, but as I said, on moral grounds I’ve always felt that in regards to the model companies and now our artwork, “Isn’t there bigger fish for you guys to fry?”

Wade

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kiwi123
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March 7, 2007 - 10:01 pm
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Wade, you might not be aware of this, but for the flightsim IL-2, it was decided to not include any new US planes any more (and I think stop selling the sim in the US in general).

They were apparently taken to court by a US company for violation of copyright with their second world war fighters. I think it was Northrop which means grumman, vought and republic ?

If it can happen to games…..

So it seems it is not just modern aircraft unfortunately. Unbelievable stuff this.

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Wade Meyers
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March 7, 2007 - 10:22 pm
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Great news! (Not! evil )

I still have hopes that us “little guys” producing original art and limited runs of prints stay under their radar. With the popularity of flight sims, however, I can fully understand the aviation manufacturer’s lawyers “taking an interest”.

Maybe we as an aviation art movement should all switch subject matter and stay within the “safe” (for now??) confines of the WW1 era … hmm, where’s my SE 5A books again?? lol

Hey Russ!!

Wade

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mannyromano
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March 7, 2007 - 11:00 pm
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There is a Bill in U.S. Congress right now H.R. 4806 (109th) “Military Toy Replica Act under review:

H.R. 4806 [109th]: Military Toy Replica Act
HR 4806 IH

109th CONGRESS
2d Session
H. R. 4806
To prohibit defense contractors from requiring licenses or fees for use of military likenesses and designations.

IN THE HOUSE OF REPRESENTATIVES
February 28, 2006

Mr. ANDREWS introduced the following bill; which was referred to the Committee on Armed Services

A BILL
To prohibit defense contractors from requiring licenses or fees for use of military likenesses and designations.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Military Toy Replica Act’.

SEC. 2. PROHIBITION ON DEFENSE CONTRACTORS REQUIRING LICENSES OR FEES FOR USE OF MILITARY LIKENESSES AND DESIGNATIONS.

The Secretary of Defense shall require that any contract entered into or renewed by the Department of Defense include a provision prohibiting the contractor from requiring toy and hobby manufacturers, distributors, or merchants to obtain licenses from or pay fees to the contractor for the use of military likenesses or designations on items provided under the contract.

I don’t know if this Bill would cover artwork in any way.

Experience the joy of painting all day, every day with Bob!

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March 7, 2007 - 11:10 pm
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Dang!

LITIGATION TO ECONOMIC STAGNATION.

If I was the CEO of Lockheed/Martin and saw my legal department pursuing this type of negative action, I would have to draw the conclusion that they are overstaffed.

Models, photos or prints…don’t they all return dividends to the respective manufacturers far beyond what they hope to obtain thru “licensing fees”? The free exposure of having the general public build models, hang photos or prints on their walls at home, of your product, I mean who wouldn’t pay for that, much less charge a tax that will surely result in the demise of that free publicity.

And where is the public outcry that would send these scumbags back into their fungus covered caves? Think about it. We are taxed (US citizens anyway) for almost half a year now, so our country can procure these weapons (profits go to the companys in question), then we send our loved ones off to combat using these weapons (the company in question enjoying the freedom and capitalism that their sacrifice has helped to ensure) and them WHAMOO! Little Johnny wants you to buy him an F-16 model to build, and you once again place a gift, thru “licensing fees”, at the feet of said company once again.

And where will these lawyers stop, unless their genes are rendered impotent? Think about it, your grand-father takes a photo of his Marine buddies raising the flag on Iwo Jima. It becomes famous and you decide to market it. But suddenly there is a knock on the door in the middle of night 63 years later. A young lawyer, representing a helmet manufacturer and no doubt having to pay off his student loans, issues you a subpeona that says you must pay a “licensing fee” for selling images that include said company’s helmet. Oh, by the way, he adds, the amount expected is retroactive with a fair return incured for the length of time that you have enjoyed profits from the image.

Yeah, they may have their rights, but they would have to be able to stick their arm up their arse further than the elbow to reach where I would put them. Feel free to refer to the Bart illustration above for a visual reference about how I feel about this one!

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Wade Meyers
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March 8, 2007 - 12:21 am
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SEC. 2. PROHIBITION ON DEFENSE CONTRACTORS REQUIRING LICENSES OR FEES FOR USE OF MILITARY LIKENESSES AND DESIGNATIONS.

The Secretary of Defense shall require that any contract entered into or renewed by the Department of Defense include a provision prohibiting the contractor from requiring toy and hobby manufacturers, distributors, or merchants to obtain licenses from or pay fees to the contractor for the use of military likenesses or designations on items provided under the contract.

Hey, there’s hope! The guy who approved that language in the bill has my vote – I’ll move to his state!

I don’t know if this Bill would cover artwork in any way.

If the bill passes, it sets an important legal precedent.

If I was the CEO of Lockheed/Martin and saw my legal department pursuing this type of negative action, I would have to draw the conclusion that they are overstaffed.

Let’s hope the CEOs – and/or the legislators who are in the affected committees – are modelers and/or aviation art fans!

Wade

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March 8, 2007 - 12:23 am
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Got one, this is for all the PC extremists that threaten fellow artists:

That’s bit rude. I see, it’s the PC artists that have brought certain doom and destruction to the aviation art world. Give me a break :roll:. Ooooo, beware! The PC extremists are loose 8O. The sky is falling; the sky is falling. I think it’s more of a case of an overzealous lawyer.

A wholesaler I work with has experienced a similar situation. He says they have received notices in the past regarding the use of company names in conjunction with the artwork on some of their products. It is not ok to use the company name (Lockheed, Boeing, etc). They tried to get him to stop using the designations (F-15 Eagle, F-4 Phantom II, etc) however, he kindly informed them it is ok to use designations for the aircraft since these are chosen by the government. He hasn’t been bothered since.

Very interesting topic. I wonder if Andy Warhol had to get a license to paint the Campbell’s Soup cans or any of his other pop art series – I don’t think so to my knowledge.

I think if it’s a military aircraft in government markings it falls into free domain area. What about all the airplane magazines – Wings, Airpower, Flight Journal etc. – do they have to pay a licensing fee to use pictures in the mag? I wonder. I think I’ll paint any aircraft I like and if they come after me I guess I’ll cross that bridge when I get there.

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March 8, 2007 - 12:25 am
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I think I asked this exact question on this forum a year or two ago. You’ll find the way the copyright laws are they can apply it to any age aircraft they built. They just haven’t gone after people yet. If Charles checks he’ll find he needs a license to do British military aircraft. I was told it was 200 pounds by someone who applied and got one. I think most artists are lucky that it hasn’t caught on yet. You won’t find much art around if they pursue their stupidity. The only hope is they will change the laws, but I wouldn’t hold my breath. Maybe they’ll add a charge to your brushes and paints like they have with CD’s. The greediness of our corporations now is staggering. They’re not happy enough to ship all the jobs out of country, now they want the art to go as well. evil

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March 8, 2007 - 12:58 am
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I have followed the uproar in the modeling commnuity for some time.
I saw at one point, IIRC, that this was not just this side of the pond.
There was a time when the RAF were trying to copyright the roundel.
Shame on the companies, whose product is purchased from the taxes taken from the middle class masses, to see a tax on a product they already paid for. These companies are not forced to enter a competition to receive a government contract. The contracts can be enormous.
As for Andy Warhol and the Campbell Soup label, I do think he was commissioned to do that work. Who knew.

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March 8, 2007 - 3:37 am
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Here’s some information I found on the ‘net regarding the Military Toy Replica Act – it says “Toy”, but the language of the bill clearly implies an end to US defense contractors collecting license fees and royalties for items built under a US defense contract. I would think passage of this bill would easily “cover” 2-D artists who depict such objects:

First, a recent update (24 Jan 2007) on a modeling site:
http://www.armorama.com/module…..38;catid=3

See the links in that article for more great information, including the letter Rep. Andrews, et al, wrote in the summer of 2006 to the Armed Services Committee conferees. That letter says it all.

I also found this blurb in the “Read More” link attached to the article cited above:

For more than fifty years, military aircraft, ships, and vehicle design and designations have been in the public domain and free from licensing restraints as the actual subjects were contracted and fully funded by the U.S. Government on behalf of the U.S. citizenry. Recently, major U.S. Defense contractors or their designated licensing agents have begun programs to appropriate these federally-assigned type designations (i.e. P-51, P-38, B-17, B-52), associated names, i.e. “Mustang”, “Lightning”, “Flying Fortress”, “Stratofortress”), and likenesses into intellectual property for corporate gain through royalty income from readily-recognized names and likenesses.

I don’t know if “disgusting” is the right word … “unbelievable”, as in pure-D greed, and stupidity, comes to my mind.

Can you imagine the public outcry (the US citizenry have always protected their artists and artistic freedoms – it’s a bedrock principle of our Republic) if L-M or whomever sues Joe Artist? Nope, THAT amount of bad publicity ain’t worth the $200 they would have collected from Joe had Joe rolled over.

On October 5, 2006, Robert Andrews, Member of Congress, sent a letter to Stevens International providing an update regarding the Military Toy Replica Act. No dice this year, but they aren’t giving up, and the fact that they aren’t giving up is keeping the wolves at bay for now:
http://www.modelaircraft.org/P…..%20Act.pdf

Unless I read it wrong, Rep. Andrews’ letter clearly states that a 2005 Act authorized the US Dept of Defense to license commercial activity involving military likenesses. I don’t see L-M or Boeing mentioned anywhere in there as having authorization to control “military likenesses”. Hmm.

Clearly, all “users” of likenesses of US military hardware are interested in this bill, 2-D, 3-D, film, what have you.

I feel a little bit better now – at least we’re not alone in this battle, us against the big corporations. All of us who sell “military likenesses” in any form are affected by this legislation.

Wade

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March 8, 2007 - 6:52 am
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Hi All,

I am very sorry to report that the situation has probably spun out of control more than most realize. This kind of idiocy is now reaching hysterical proportions across the Corporate universe, and has started to infect company behaviour here in Europe. Someone had commented, for example, that the UK government had attempted to Copyright the RAF roundel– make that did Copyright it. If you attempt to produce a model kit, for example, which features a sheet of decals with an in tact roundel (the avoidance of this is to print the red dot separately, so the modeller applies it in place), you will be assaulted by Her Majesty’s plonking buffoons.

My colleagues and I–and our institution– have been sued now twice by North American companies which I cannot name for Copyright violation. This is a direct attempt to destroy Fair Use and academic freedom, and I roundly wonder why persons are not out in the streets in their millions to protest this insanity (I presume that no one knows about it). More lawsuits are coming our way, in case one wondered, which reveals the depravity of the responsible Corporate imbeciles who are underwriting this assault. I do not accept that this is the result merely of poor behaviour on the part of those legal entities who represent them; these companies are directly to blame.

On the positive side, I can guarantee that this attempt to Copyright history is categorically against European law. For all those living in the EU, I urge you to openly defy these dolts, to mock them publicly and to brazenly render in all forms their comapnies’ products, logos and all other items of alleged “ownership”. This posturing and threats as issued by these maniacal poltroons is nothing more than banal bluffing, suitable for a poker game in the lounge and not for reasonable human conduct. Their bluff should be ‘called’ by all whom are able, and thusly consigned to the rubbish bin where it belongs. I do not accept, nor agree with, any attempt by these Corporate oafs to rationalize why they should profit on these matters. Likewise, I cannot see how on earth that artistic nor historically recreational use of these instruments is in any way whatsoever detrimental to these companies, a position most obviously shared by our EUC judges.

If I have in some way failed to express with sufficient clarity my disgust and repudiation for this conduct, allow me to repeat that in summary. This behaviour is vulgar and criminal, and should be treated as such.

Red Banner Aviation (redbanner.co.uk)

Charles McHugh
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March 8, 2007 - 12:28 pm
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British Crown Copyright:

The Crown copyright protected material may be reproduced free of charge in any format or media without requiring specific permission. This is subject to the material being reproduced accurately and not being used in a derogatory manner or in a misleading context. Where the material is being published or issued to others, the source and copyright status must be acknowledged.

This is fair enough although in itself could promote an abscence of historic fact. If I painted an Argentinian Skyhawk attacking a Royal Navy ship that subsequently sunk (and therefore battle lost!) would I receive a summons. Yet if I painted an RAF Harrier shooting down said Skyhawk, would that be acceptable?

You can paint what you want as long as my product wins!!!!

The world has I fear, gone stark raving mad 😎

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Damn!!! I knew there was a damned good reason I’m adding art law to my law degree.

As I mentioned elsewhere, I have also had the threat of legal action regarding defamation not even related to any of my own conduct. I fear that bulletin boards like these are on a knife edge. Reasonable use etc., are usually judged so in a court…. dollars, dollars, dollars.

Stavka, your assessment is eloquent and spot on. Most of the commentary here has been with regard to this discussion.

The brutal bludgeoning of impoverished artists strikes me as about as ugly as you can get. The thing that really cuts hard is that these corporations have the resources to push harder than the artist and they know it. Unfortunately the only way to get a result is go to court and few of us could afford that.

The trick to add pressure in various instances is to go for defamation. A landmark case in an Australian court – Dow Jones & Company, Inc v Gutnick [2003] HCATrans 385 (3 October 2003) illustrates how in a defamation case, the case would eventually be heard wherever the offended party sees the electronically displayed picture. In this instance the case was tried in Australia even though the material was posted in the USA. How would you like the added cost of having to defend yourself in an overseas country. “Case adjourned for fifteen days”… yeah… right.

In most cases, these payouts are not that high but the odd ones can be in thousands and more.

Having been given “my fright”, I’m keeping a close eye on covering my arse.

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