Fair Use in regards to Toy Photography

When you photograph someone else’s intellectual property, and by this I’m referring to licensed toys, the issue of fair use is not an abstract concept. As Paul pointed out yesterday,  we toy photographers work within an admittedly grey area. It’s hard to know where the line is drawn between the artist and Big Inc. when it comes to the idea of ‘fair use’. Continue reading “Fair Use in regards to Toy Photography”

Shades of Grey

By now you have heard about the conflict between artist Ai Weiwei and the LEGO Group. To summarize Ai asked to purchase from LEGO a bulk order of LEGO bricks for an upcoming exhibition in Australia and the company refused on grounds that they knew the content was for political purposes. Ai then went to Instagram and accused LEGO of artistic censorship. Continue reading “Shades of Grey”

Fair Play – Part III

At the risk of beating a dead horse  I want to revisit the issue of fair play and Lego System A/S that we talked about last week.  Me2 and I don’t always see eye to eye and his habit of adding the TM symbol to his words has always seemed pretentious to me, but after last week I think he is on the right track (he just promised me he will elaborate on his Why™ in another post here pretty soon).

Our original post was re-posted to Reddit and the reaction was alarming in its passivity. It seems that most fans in the Lego universe are more than happy to let Lego roll right over them without even a whimper as they believe it would only impact those who would want to sell their work. The over riding sentiment expressed in the comments was that Lego was well within their legal rights and that we, their customers, fans and LEGO artists need to watch our step.

Seriously? What has this world come too when we think corporations have the right to tell us how to create, show and ultimately sell our own creations? What would Andy Warhol have said if the Campbell’s Soup company had sent him a cease and desist order when he first exhibited his now iconic soup cans? I am pretty sure he would have laughed and kept printing his silk screens. So why are we taking this sitting down?

If the Andy Warhol example is too esoteric for you how about this one which hits a little closer to home: Peter Reid. If you are not familiar with Peter Reid he created the fabulous book LEGO Space published by No Starch Press. Oh and he is also the guy who designed Lego Ideas #6135: Exo Suit. You may have heard of it? You probably own one since Lego has been selling it for a few months now. I want to respectfully point out to Lego System A/S that you can’t have it both ways.

Recently a related issue was brought to my attention regarding a popular company (Ikea) and it’s enthusiastic fans (IkeaHackers). Last summer Ikea tried to shut down the popular web site that is dedicated to finding new and more interesting ways to use Ikea furniture. There was a public outcry and Ikea backed down. I guess it doesn’t pay to piss off your devoted core.

Do you really think that if Lego System A/S got nasty and removed ALL photos with Lego imagery off RedBubble and related sites (yes, including Flickr since the basis of the IP infringement claim starts at publishing and Flickr has been making noises about monetizing fan art uploaded onto their website) that the outcry wouldn’t be as outraged as the Ikea controversy? I am pretty sure it would be more financially damaging in terms of bad publicity and a pissed off fan base than any revenue lost due to these “illicit” products.  No one likes a $14.6 billion dollar bully.

Personally I think we are all well within our rights to photograph our toys and sell the images as a unique piece of art to enjoy in your home (we are not talking about licensing stock photography here to be used in a commercial campaign as that is a completely different topic, and we fully recognize that). I am pretty sure most of these artists photos would not be confused with Lego’s own marketing campaigns or franchise business and the financial damage (if any) the company might be incurring is well lets be real…it’s minimal and far less than the community gives back exponentially. If Lego doesn’t like us creating art with their shiny plastic bricks and having us share this with the world, than they should speak out now with a clarified Far Play notice rather than these random take down notices.

This whole fair play discussion is not about the ultimate sale of a piece of art (that is just the financial recognition that someone liked what you did), but about the fact we should own the unrestricted rights to do with our art what we want (as long as it does not violate any other laws like discriminating or racial ones), which is to share, publicize and ultimately gain some financial recognition from it if we choose to do so.

I for one will continue to promote my work with the ultimate end game of monetizing it. While I am not interested in selling through RedBubble, I applaud those who do. If I ever get a “cease and desist” order, personally I am going to laugh all the way to the fireplace where I will promptly burn it.

So I say to Big INC™, I am not afraid of you and I am tired of being bullied by you!

~ xxsjc

Should we let this topic die a slow death or keep talking about it?

Who knew?
Who knew?

Fair Play – Part II

Our Fair Play post from yesterday, highlighting the fact that The Awesome LEGO Systems A/S had sent their legal teams to Red Bubble with a set of claimed IP infringements on regular LEGO pieces created quite some reactions here, on IG, on bricked forums and reddit alike. Reactions covering the full spectrum ranging from great sympathy and annoyance with LEGO over the more neutral business as usual to the defenders of the right to protect ones IP. One recurring observation coming back was that sharing was not an issue, and that the problem was only with selling the art or as someone called it purchasable goods.

If you look back at yesterdays post we believe that it is not just about someone selling merchandise, and that the discussion goes much deeper on who owns the rights and that LEGO seems to be making a shift in their IP protecting policies here.

LEGO is only after those who sell their pictures.

While Red Bubble core business is indeed the sales of art and craft, they follow a similar user community model as Flickr and DeviantArt and actually Red Bubble does not force you to sell your work. You can perfectly share your work without the option of making postcards or poster prints available for purchase. And this happened to quite a few people on Red Bubble when Lucasfilm went after all the Star Wars fan art and sent notices to sellers and sharers alike, not making any difference between those who just shared their fan art (derivative works) and those who tried to sell it.

Red Bubble user Byron explains it pretty clear in his beginners guide to copyright and dmca :

” … It is a misconception that it is ok to upload derivative works without permission – so long as you don’t offer them for sale. The real issue is with the act of publishing the derivative works … and in this day and age “publishing = uploading to a website”

And Helen mentions exactly that, her work was taken down while it was just being shared, and not up for sale.

Screenshot 2015-01-21 23.34.08

So this really brings us to the bone of the meat.

Is original classic LEGO copyrighted as a whole and using any brick or figure is violating the copyright of Big Inc. and anything we dream or imagine and build with LEGO is actually owned by LEGO Systems A/S and is to be considered derivative fan art of the brick company ?

Is a classic LEGO brick or mini-figure equally protected by the copyright laws dream makers like Marvel, Disney and Lucasfilms  enforce when they take down fan art of Spiderman or Darth as they vigorously protect their creative IP (and they do, they are in the first place dream makers, while LEGO was up to now a toy maker) ?

Can one imagine and make a unique piece of “art” (and then photograph it) of some classic LEGO bricks, studs or minifigures that is not subject to be considered derivative fan art of LEGO Systems A/S ?

So when Mark created his own LEGO fantasy character Goovy with a few LEGO pieces as an homage to Ash Williams (a series never licensed by LEGO as most probably to violent) and put this on Red Bubble after a retweet by the original actor did he then truly violate the copyrights of the LEGO Systems A/S ?

goovy

Is every mini me or alter ego actually owned by LEGO because this iconic piece of toys (the mini-figure) is trademarked and copyright protected and any derivative work is owned by LEGO. If you follow the letter of the claims that is what LEGO lawyers are enforcing here when they invoke the IP infringement letter against Mark at RB.

And here is another victim of yesterdays take down.
A bunch of pirates in a pool.
A photo taken by the fantastic storyteller bricksailboat called the Party Pool.

bricksailboat

I can only see a creative mind taking a cool pirate picture that wants me to join the pool party and I would happily buy this postcard on RB to invite my friends over for a party in the weekend.

So, this whole take down is hopefully just a storm in a glass of water and will not go any further as the few cases we saw (and they should not ruin the fun, Big Companies may have a bad hairday as well) but we should not shy away from the discussion and push back to our beloved childhood toy manufacturer that we do want to continue to play with the toys and soup cans alike, and use them in our creative work and maybe even sell some of it on the way.

Me2

Fair Play

Today we hit an all new high in the battle of Big Inc. against the small Artists™ when LEGO System A/S filed a large set of complaints against LEGO Artists™ small and big on RedBubble using the second half of the Millennium Act to enforce their powers and have the small art and craft work removed with the stroke of a legal letter on claimed ownership. Yes, you read that right, ownership of the artistic photo they took featuring LEGO in an artistic shoot.

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A new high (or is it low) in the battle against Artistic Creativity because it was not George Lucas going after his iconic Stormtrooper Helmets or Darth Vader silhouettes like we have seen in the past to “protect” their merchandise market, nor Disney protecting Mickey from any mischief, but the Awesome LEGO company itself who is going after any photo using LEGO people or objects in it. So far simple bricks, age old pirates and genuine minifig series outside the licensed subsets of Disney,  StarWars or Marvel have been reported as being taken down by LEGO System A/S as they are the claimed owner of the intellectual property.

Maybe with the acquisition of Lucasfilm by Disney the LEGO Group took over the legal department from George instead ?

It is an interesting (and scary) development to see the European company that inspires creativity and imagination going single minded after a relatively large group of its AFOL community, hiding behind the powers of Big Inc. and DMCA to break down the creative movement of Toy Photography and try to put a stop to sharing our work.

This is not about protecting the exact replica merchandise market of iconic symbols in mass consumer goods (for example the LEGO logo, the Stormtrooper Helmet, The Statue of Liberty, …) but killing the creative use of an inspiring role model brand.

It is as if Campbell’s (the soup company) would claim intellectual ownership of Andy Warhols painting and have it confiscated because he used a soon to be iconic soup can.

Today it is not clear if LEGO Systems A/S is just dipping its feet in the legal rumble of fan art with some overeager legal team that got inspired by George in the ramp up to The Lego Movie II or is getting its chest wet to go all in and will soon  go after Flickr and other websites where LEGOgraphy is being shared and claim back all their bricks. Imagine.

In the meantime, if your work have been taken down on any site, don’t hesitate to share your legal notice take down letter and tag it with #legodoesalucasltd or let us know in the comments below.

All we ask is that their should be fair play.

To be continued …

 

* The original art work in the header is owned by the LEGO group and created by the artist Jung Von Matt for the minimalistic Imagine series. It has been selected for its journalistic relevance as it is unclear if LEGO claims the intellectual property on all turtles or just the Ninja ones.