copyright

3 Reasons The South Park Copyright Infringement Claim is Ludicris

Animation /

Via: The A.V. Club

Yup, that venerable organ of parody and disrespect, South Park, has gone too far! They’ve been sued for copyright infringement [TMZ, apologies, apologies] for the episode “Imaginationland”. There is, however, a distinct whif of BS about the whole thing. Here’s X reasons why.

The Character That’s “Infringing”

Yup, the character that’s infringing, is, uh, the Lollipop King. And how is he “infringing”, well apparently he looks the same as the character in the video below called the Lollipop Forrest [sic] and the fact that in South Park he’s being throttled by a Stormtrooper makes him guilty

The Nature of the “Infringement”

Hmm, where to start. Infringement in copyright terms is a complex beast. There are tests to determine whether something is actually infringing. In this case, I find it hard to believe that the Lollipop King is guilty of that. For starters he’s multi-coloured and wears a crown. The characters in the video are mono-colored and don’t wear crowns. Moving on, South Park is animated, the Lollipop Forrest [sic] is live-action. That rises the bar in terms of proving infringement but even then, the character isn’t the same for chrissakes!

The Time Factor

Ah yes, perhaps the greatest thing that this lawsuit is done is revealing that South Park creators Trey Parker and Matt Stone have access to a time machine. No, I’m deadly serious about this. Imaginationland was broadcast in 2007 but the Lollipop Forrest [sic] appears to be from 2011 (presuming that creator Xavier Wardlaw uploaded it shortly after creating it). Being the engineer that I am, I’m fairly confident that Parker and Stone (if they did infringe) saw that last year and then travelled back to 2007 so they could rip it off a whole 4 years before the fact.

Personally, I’m decidedly curious to see what the court says about this and whether a precedent is created whereby you can recursively infringe on something by going back in time and creating it first.

Conclusion

This is one of those “there has to be a moral” stories and it is. I don’t begrudge Xavier Wardlaw for creating what he did, every creative thing deserves props for being made. However, there’s something about American that seams to whisper in everybody’s ear “sue, sue, sue” every time they feel even a tad slighted. C’mon folks, common sense can do wonders, and in this case, can save you some money too.

And now for the funniest part, watch the start of this making of video and see if you can spot the (even more blatant) copyright infringement going on. Bonus points for the characters names!

 

 

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Those YOOTOON Submission Requirements in Detail

3 Comments / Animation, Website /

So I was all set to write a post on the YOOTOON channel in general but Amid Amidi took care of that for me so instead, let’s take a closer look at those submission requirements shall we?

From the Tumblr submission page:

    1. Have fun! We want to see your style shine through your video.
    2. Make sure your video is set to UNLISTED on YouTube. Your video must be brand spanking new, not one you’ve previously uploaded.
    3. Videos should be 10 seconds to 2 minutes long.
    4. Only use licensed music or music that you’ve created. You can find free music online! If you use licensed music, we will need a copy of that license agreement.
    5. Please keep your video kid friendly to be eligible for submission. Get creative, but no nudity, swearing, bad stuff, you get the picture.
    6. Only submit your own original videos. If accepted, this video will be posted on the YOOTOON channel EXCLUSIVELY and CAN NOT be live on the internet ANYWHERE else, including your own Youtube channel.
    7. You must be over 13. If you are not over 13, please have your parent or guardian submit the video for you or have them contact us at: joinyootoon@gmail.com

Let’s break these down one by one:

1. Have fun! We want to see your style shine through your video.

Okie dokie, seems fair enough.

2. Make sure your video is set to UNLISTED on YouTube. Your video must be brand spanking new, not one you’ve previously uploaded.

So the video must not have been shown before. That’s OK too. A lot of few film festivals generally require that your film not be available online in order to be eligible to enter. In other words, it’s not a deal-breaker.

3. Videos should be 10 seconds to 2 minutes long.

Again, a straight-forward request.

4. Only use licensed music or music that you’ve created. You can find free music online! If you use licensed music, we will need a copy of that license agreement.

This is pretty much an indemnity clause. As you may well know, record companies love crawling YT looking for their unlicensed use of their content. Besides a quick DCMA takedown to YT, they also love to send legal nastygrams, sometimes extorting money in exchange for not suing you. With this, YOOTOON is basically saying that they won’t even consider a video without the proper licensing in place becaues of the potential legal pratfalls. Again, this is fairly standard.

5. Please keep your video kid friendly to be eligible for submission. Get creative, but no nudity, swearing, bad stuff, you get the picture.

OK, we get it; no boobies and F words.

6. Only submit your own original videos. If accepted, this video will be posted on the YOOTOON channel EXCLUSIVELY and CAN NOT be live on the internet ANYWHERE else, including your own Youtube channel.

OK, so this basically reiterates what was said above in addition to stating that the video can’t have been hosted anywhere else either.

7. You must be over 13. If you are not over 13, please have your parent or guardian submit the video for you or have them contact us at: joinyootoon@gmail.com

Fair enough.

Now, this is where it gets interesting because below those requirements, is another statement:

YOO retain all rights to your animated creation, we just own the particular video you submit. We want your idea to succeed! If it attracts an audience under the YooToon banner, we will provide the funding deemed necessary by YooToon to make more videos. If the idea REALLY takes off and goes viral, YooToon will strike a best effort deal with the creator to make the video into an online series! Imagine, you could be making an online series with Butch Hartman!

Now IANAL (I am not a lawyer) but this is most definitely an ill-drafted legal agreement if ever I’ve seen one. Let’s break this one down too:

YOO retain all rights to your animated creation, we just own the particular video you submit.

Any lawyer worth his salt could find fault with this. Who is “YOO”, he is not “you” because legal documents love specifc language. “YOO” is not specific, and could even be construed as being short for “YOOTOON”, thus making this clause a bait-n-switch kind of deal.

If it attracts an audience under the YooToon banner, we will provide the funding deemed necessary by YooToon to make more videos.

In other words, if the video is good, we’ll fund the promotion of it to an extent that we think is OK. Not sure why this is in the agreement, YT has the same basic thing in their agreement because that’s how YT makes money too! Surely no reason to call it out specifically for a channel, right?

If the idea REALLY takes off and goes viral, YooToon will strike a best effort deal with the creator to make the video into an online series!

Let’s isolate the key words here:

YooToon will strike a best effort deal with the creator

What is a “best effort deal”? Well, what that means in the context of YOOTOON is that they will make you an offer with the best intentions of hoping you’ll accept it. The gist is that “best intentions” can translate into “we hope you accept this offer, but if not, then we tried really hard to make it so that you would, and now that you don’t like it, we’re not going to offer you a different one”. In other words, we’ve fulfilled our side, you can take it or leave it.

That’s an awful lot of trust right there, because chances are, the agreement will be skewed in YOOTOON’s favour and there is little you can do about it.

Some of the particulars that aren’t described or mentioned include copyright. You can’t sign away your copyright unless the agreement specifically states so. I therefore find it hard to believe that the above agreement, where YOOTOON claims to own your video, would stand up very well (if at all) in court.

Secondly, it’s interesting to note about this channel is that it’s based on YouTube but accepts submissions through Tumblr. Yup, I haven’t quite figured that one out either because presumably, submitter’s videos will be on YT too. This adds an extra murky aspect to the whole scenario. Which license supersedes the others? YouTube because that’s where the videos are hosted? Tumblr because that’s where they were submitted? Or YOOTOON, because they are the channel’s owners?

It’s all a bit too much for a Tuesday morning before the first cup of coffee. So grab a cup and share your thoughts in the comments below.

And don’t forget:

Let’s be honest, this makes me think that Butch is siumply the frontman for the operation.

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“Visual Creator” Sues the BBC for £2m for Copyright Infringement

Animation /

Images (with apologies) via the UK Daily Mail

Here we go again. This time from the UK, where Michael Mitchell is suing the BBC for copyright infringement over a show called Kerwhizz, which he claims is based on his idea, Bounce Bunch. From the Guardian article:

 Michael Mitchell told the high court on Thursday that he was shocked in 2009 when his daughter noticed that three characters in the CBeebies show Kerwhizz bore “striking similarities” to his own cartoons.

Mitchell suggested that the BBC copied the characters – known in the show as Ninka, Twist and Kit – after they were uploaded to his own personal website in 2004…….

……Mitchell claims the Kerwhizz character “Ninki” was derived from a combination of his two characters Simrita and Jomo, that “Twist” was copied from his character Charlie and that “Kit” is a version of his character Yana. Outside court he told journalists that he had sent the characters to the BBC directly as a proposal package in October 2007, but had been rejected.

So, judging from the two pictures at the top, is there a case for infringement, bearing in mind that it focuses only on the three human characters in Kerwhizz?

The similarities are obvious:

  • they’re human
  • they’re kids
  • wearing brightly coloured spacesuits of some kind
  • wearing headband microphone
  • of multiple ethnicity

The only problem is that these traits can’t be considered under infringement. Why? They’re too ubiquitous and easily conceivable. The closest thing would be the brightly coloured suits but even then giving characters their own coloured clothing is nothing new.

Presuming that the similarities are generic enough to be precluded from the case, the next avenue open to Mitchell is to prove that the BBC used his show as a direct influence for creating Kerwhizz.

Now this is where it gets interesting, because Mitchell sent an unsolicited package that was rejected. As most studios will tell you, they send any unsolicited idea back unopened to eliminate precisely this scenario. The BBC should have been smart enough to do this, so this route can probably be rejected.

That leaves only the fact that Mitchell posted the Bounce Bunch online at some point prior to the launch of Kerwhizz. What form this took is not specified. Was it development art or full animation? Does it make a difference? Probably not. There seems to be enough difference between the shows themselves that Mitchell focuses only on the characters.

The really tricky aspect to this development is whether or not Mitchell can prove conclusively that someone from the BBC in the same department that created Kerwhizz saw or had access to the Bounce Bunch page.

This could be next to impossible to prove and the details are still sealed in court documents so we won’t know for sure until judgement, but I would hazard a guess that Mitchell doesn’t have the substantial proof he needs.

It’s always disheartening when you feel that someone else has copied your design (not idea, remember you can’t copyright those), especially a corporation as large as the BBC, but that does not preclude them from coming up with similar designs, although I would argue that even then, substantial differences exist.

In this particular case, if there really was any chance that the BBC ripped Mitchell off, then a settlement would have been reached by now.

It’s unfortunately just another example of why animators and developers need to be aware of the nature of copyright and what it does and does not cover.

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Please Watch This Video And Answer the Poll

Animation, Poll /

I came across this video on tumblr yesterday (thank you potatofarmgirl), and as a fan, I felt somewhat obliged to watch it. You should too, then read on.

The notes on tumblr all circled around the description of “epic” and “awesome”, and while the video is exceptionally well done, is it legal?

[poll id=”6″]

[poll id=”7″]

What do you think? We’ll do a follow up with a discussion next Saturday.

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Remember, It’s Not Your Idea, It’s Your Interpretation of It

1 Comment / Animation /

Yesterday, over on the  Cartoon Brew Biz section, I read an announcement that the Disney Channel has ordered a pilot for broadcast in 2012 tentatively called Zombies and Cheerleaders.  Now I’m not so sure about yourself, but when I read that title, the first thing that popped into my head was this:

Yes, it’s the Zombies Vs Cheerleaders comic by Stephen Frank et al at Moonstone Books. Similar topic, very similar title.

On the surface they look much the same, however each composition is/will be hugely different. The TV show is described as follows:

The story follows Zed Necrodopolis, a typical high school student with one small caveat; he happens to be a zombie. Despite a high-tech wristwatch designed to curb any appetite he may have for his classmates, he and his zombie friends remain unpopular with the school’s most influential group, the pom-pom wielding cheerleaders. Never one to back down from a challenge, Zed sets out to improve zombie student body relations and win the attention of Addison, the cheerleading squad’s newest member.

In contrast, the comic is described as:

Morbid or funny, and sometimes morbidly funny, top talent bring eclectic tales of Zombies vs Cheerleaders in this best-selling anthology series. Based on the hit sketch card series from 5FINITY Productions, read the exciting stories of the two things everyone loves: zombies and cheerleaders!

So while they appear similar on the surface, featuring zombies and cheerleaders, they differ greatly when it comes down to actual content.

This is something to be very aware of if you are writing or creating your own material. You can’t copyright ideas, only exceedingly similar interpretations. This is why we continue to see new versions of Alice in Wonderland despite the fact that the Disney version is the de facto story as far as the masses are concerned.

So don’t be afraid to use someone else’s idea for something personal you’re working on, just so long as it’s different or heads in another direction. 🙂

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The Beatles Rally Against “Piracy” With Animation

Animation /

Tip of the hat to Tim Cushing over at Techdirt for pointing out that the Beatles have joined together with the recording industry group Music Matters to create an animated video rallying against file sharing or “piracy”.

The interesting twist? The guy in the video discovered The Beatles because someone was “sharing” it out in the street. The video is also embedded on YouTube for all and sundry to share and embed. I can almost smell the irony from here.

The video itself is by a guy called Lee Gingold, who was not linked to by Music Matters leaving me to fend for myself by visiting Google.

The video itself is OK, but is on the whole, unremarkable. If you listen to it without the sound, it turns into another Flash cartoon with the pencilly look and some über simple character movements.

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Canadian Court Upholds Animator’s Copyright Claim Against Cinar

Animation /

The Montreal Gazette is reporting that Quebec Court of Appealhas upheld a previous ruling against Cinar (the forerunner to Cookie Jar). The case involves Claude Robinson and a series he created called Les aventures de Robinson Curiosité. After trying to sell the series with Cinar to other production studios and without any success, Claude was astonished to discover that Cinar had launched their own series, Robinson Sucroé.

After a 14 year legal wrangle, the court has awarded him damages that although far below what was originally awarded, still amount to CA$5.2 million, which breaks down as follows (as listed in the CBC’s story):

  • $607,000 for copyright infringement.
  • $1.7 million for profits earned by Cinar and other broadcasting companies.
  • $400,000 for psychological distress.
  • $1 million in exemplary damages.
  • $1.5 million for legal fees.

While this sounds like the nightmare of just about every artist out there, it is important to remember that cases such as this one are extremely rare. Fourteen years is long, even in the legal world, and a settlement is most likely to be hammered out long ago instead.

Did Robinson have a case? I haven’t seen any images from the offending shows, but assuming he’s not an eejit, he will have properly and sufficiently developed his show before presenting it to Cinar. He will also have gone through all the legal hoops to get a development deal with them if he did. The Gazette article mentions attempting to sell the concept in the US, so I’m sure he was on board with a contract of some sort.

Why Cinar felt the need to copy the guys show, I don’t know. According to the Wikipedia article on the firm, it has been engaged in shady dealings before, so perhaps this is not a surprise. What is surprising is that they went ahead with it anyway, it should not have been all that difficult or costly to simply acquire the original property and tweak it into the new one thereby saving everyone a bunch of time, money and hassle.

As you know, the entertainment industry is full of such lawsuits (most of which get thrown out) but a few make it through to trial. Copying an idea is extraordinarily difficult to prove in court, which is why most studios don’t even want to take the chance and refuse unsolicited scripts. The vast majority will purchase a concept and develop it themselves to prevent such lawsuits. Studios aren’t stupid but that will try to minimize costs, and acquiring a concept may fall into the category of ‘unnecessary’.

Again, it is imperative that when developing an idea, you take all the precautions necessary to save yourself and the studio from a legal headache such as this.

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Animators and The Law: When Will Mickey Mouse Enter the Public Domain?

9 Comments / Animation, Disney /

 

This is the fourth and last in a series of posts that take a look at just some of the many legal aspects of the animation industry.

It’s a question that seems to lead plenty of people to this blog but the post they land on is not entirely relevant. So here, for all those people is the post they’ve been looking for.

When Will Mickey Mouse Enter the Public Domain?

The most important piece of recent legislation concerning our hero is the Sonny Bono Copyright Term Extension Act, which basically extended the period of time for which creative works are covered by copyright. The interesting thing about this act is that it has a nickname. Care to guess what it is?

How about the “Mickey Mouse Protection Act”.

Yes indeedy, but first, it’s important that we define just how Mickey is covered and in order to do that, we must first define just exactly what “Mickey” is.

Mickey Mouse and similar characters inhabit the gray area where copyright and trademarks collide. A quick and dirty explanation is as follows:

  • Mickey Mouse’s films are covered by copyright
  • Mickey Mouse’s design/looks are covered by copyright
  • Mickey Mouse as a cartoon salesman is covered by trademarks.

Can’t tell the difference? Not to worry, that’s the purpose of this post.

Mickey Mouse is a creation, and as such his design is covered by copyright. His films are also subject to copyright in that they are expressions of the creation that is Mickey Mouse.

The distinction comes when Mickey Mouse is used as a tool to sell things. In that capacity, he is a trademark that is for the exclusive use of the Walt Disney company and anyone it licenses the character to.

Confused? Don’t worry, it will all be clear in a moment. 🙂

Why the distinction? Well, a trademark is sometimes not a creation, it can, in fact, have existed for hundreds of years. What a trademark does is extend to the owner the exclusive right to use the trademark for the business purpose that they applied for the trademark for. Sounds tricky doesn’t it?

It isn’t though. It basically means that someone setting themselves up as, say a record label called Apple is granted the privilege of being allowed to be the only record company called Apple. This is to avoid confusion in the mind of the consumer, which could result in “brand dilution”.

It does not prevent someone else from calling their company Apple and selling, say, computers. Why? Because selling records and selling computers are two completely separate market sectors that are unlikely to lead to confusion among consumers*.

Mickey Mouse is a trademark of the Walt Disney Company insofar that he acts as a salesman, mascot and calling card for the firm. Such uses are covered under trademark because they can be (and are) used by consumers to identify a particular company.

So now that we’ve established what copyright and trademarks are and the main difference between them, why are they important in the case of Mickey Mouse?

The reason is time.

You see, copyrights have term limits, trademarks do not (as long as they are actively enforced). Mickey Mouse can remain a trademark forever but his films will at some point enter into the public domain.

However, that remains to be seen:

Thanks to the lobbying muscle of Disney and its allies, U.S. copyright protection has protruded further and further into the future, from the 14 years of the first copyright law in 1790 to the 120 years of today — far beyond the lifetime of any artist.

That quote is taken from a superb article by Charles Kenny. No, not I, but a senior fellow at the Center for Global Development in Washington DC who I coincidentally happen to share the same name with. The full article is well worth a read to see how such actions by Disney and other entertainment giants are affecting the developing world in detrimental ways.

If Mickey Mouse’s films ever do enter (or are acknowledged as entering) the public domain, it will allow people to view them, edit them, remix them and so forth, it will not however, allow anyone to sell any merchandise branded as being “Mickey Mouse” merchandise. Why? Because unless they are officially sanctioned by the Walt Disney Company, they will be in breach of trademark law.

So, to answer the original question:

Mickey Mouse’s films will enter the public domain when their copyright terms expire. As of right now, that is 2020 for Steamboat Willie (barring further term extensions). As long as Disney maintains their trademark over the character, he will remain for their exclusive use indefinitely.

*As you may well be aware, when two market sectors do collide, a lawsuit results, as happened when Apple Computer launched iTunes, a breach of an agreement with Apple Corps.

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Animators and the Law – Copyright

14 Comments / Animation /

This is the second in a series of posts that take a look at just some of the many legal aspects of the animation industry.

While it is not the be all and end all of the profession, copyright is employed fairly heavily by industry players both large and small and it does affect an animator’s work in some very real ways.

Copyright is defined as:

The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. Via: Google

The very first thing to understand about copyright is what is covered and what is not. Furthermore, it is important to note that copyright is not a ‘right’, it is a legal privilege extended to creators by the US Constitution.

US Federal copyright law: The Facts

  • Covers anything considered “original works of authorship” (authorship is defined as being the written word, lyrics, melodies, visual works and, for some reason, software)
  • Granted the moment something is put in “fixated form”, no registration with the Copyright Office is necessary.
  • Terms last for 70 years beyond the death of the author or if done under “corporate authorship” terms are 95 years after publication or 120 years after creation (whichever is shorter).
  • Places responsibility on the copyright holder to actively enforce their copyright.
  • Applicable in the US only!

As an animator, how does copyright affect you?

First of all, it depends on the work created. Is it your own idea done on your own time*? If so, then copyright will rest with you. If it is work done “for hire” then it does not.

“For hire” is an exception to the rule that the creator of the work is considered the author or owner of the copyright. It is also called “corporate authorship”. A good example of this is anything you create for a studio. While you created the actual content, you were paid by way of compensation for it and thus the studio retains the copyright for themselves.

As mentioned in the ideas post, copyright only covers actual creations only. So get those ideas down on paper!

Copyright may also affect you when it comes to your personal works. While you are free to use copyrighted material for influence, direction and inspiration, you cannot create works that could be considered as infringing on the original piece. An example would be you creating a CGI panda who is learning the ways of kung fu and calling him Bo; Jeffrey Katzenburg may want to have a word with you about that.

Do My Works Have To Be Covered By Copyright?

No. As important as copyright is, it is also worthwhile knowing that submitting works under copyright is not mandatory. While it is an automatically granted legal privilege, you are quite free (at least in the US) to publish your work under a multitude of alternative methods if you so wish. Alternatives such as the public domain and the various Creative Commons licenses.

Nina Paley is well known in the animation community for the copyright issues that she had to deal with in order to get her self-animated feature film Sita Sings the Blues released. The gist of it is that she wanted to use a particular jazz song from the 1920s but whose copyright holder was demanding $250,000 in exchange for the necessary licenses.

As a result, she has become an advocate for the ideals of copyleft and permitting people to copy, modify and redistribute works without restriction. Sita Sings the Blues has become immensely popular since it was made available online and its popularity has brought Nina worldwide fame, accolades and work.

The post you are reading right now is published under a Creative Commons license with the only restrictions being that you provide attribution and publish any alterations to the post under the same CC license.

If you would like to learn more about copyright, please consult the following websites:

US Copyright Office

Wikipedia article on copyright

Creative Commons

Copyleft

*your own time is defined as being that outside of the office/studio. Creations made on company time can (and have) been considered the property of the company not the individual, so create your personal stuff at home!

Tomorrow, we’ll take a look at pay and cost as the relate to animation production.

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