Background: If you haven’t heard the story of this idiot, here’s the short version: Queen created a comic book series Darkchylde many years ago (the 90’s, I think). Recently, somebody has been criticizing his art as being unrealistic and posting samples (with each comment) to prove it. Queen threw a fit and demanded they take the pictures down. He’s since retraced his complaints and apologized, but only after making an *** of himself and making some rather dubious statements.
Question In one of his complaints, Queen makes the following statement:
Is there ANY truth to Queen’s assertion (“I don’t have the right to do that”)?
It sounds to me like the very definition of a fair use exemption (quotation for review/criticism, and use in a parody (for the modified versions)).
Fair use is tricky and this is somewhat borderline, I should think.
Here’s what the law says about Fair Use:
First let’s talk about the stuff Randy is objecting to–the snark about his artwork.
So first you have to ask: does it fit the first definition, i.e. “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”? Certainly it matches the first two (criticism and commentary), and possibly–if it’s on a site or article devoted to artists and the improvement thereof, you could make a case for teaching or scholarship as well.
Then there are the other questions to look at:
Is this commentary on Queen’s work being used for commercial or noncommercial purposes? Does the guy charge for his commentary (probably not)? Are there ads on those pages? That might make it iffy.
What’s the nature of the copyrighted work in question (the DarkChylde series). It’s highly original and artistic, however one might think his artwork is, um, flawed. So it would be covered pretty strongly under copyright.
How much of the artwork is used related to the work as a whole? Does the guy use the entire comic, every page, a majority of the pages, just the odd panel here and there? That’s an important thing to question.
What’s the effect on the potential market for/value of the DarkChylde series? This is another judgment call. Is this guy’s critique so damning that it would realistically hinder sales of Queen’s material? Dubious, but possible.
I don’t know enough to determine the answers to the above regarding this commentator on Queen’s work.
So let’s use the same questions for Queen’s hypothetical, taking an old photo and writing comments/criticisms on it.
First and most obvious question: is the old photograph copyrighted? He doesn’t specify. But the law for photographs is different from the copyright law most of us know regarding books and written material, i.e. that most pre-1923 material is public domain. With photographs the first date to be considered is pre-1912, but even then, the physical owner of the photo has to agree to its publication. But considering the rules are more stringent, let’s assume it is under copyright.
Now we have to ask: is what Queen describes fair use?
The main question: is it being used for criticism/commentary/research etc.? Yes. Moving on to the four big questions:
Is this for commercial/noncommercial purposes? Queen doesn’t specify so let’s assume No.
What’s the nature of the original photo? Is it highly original and likely under strong copyright? Not enough info to know.
How much of the work is being used? If it’s just one photograph, then presumably it’s the entire work.
Will it affect sales of the original copyrighted material? In this case, possibly. If people see the photo and the critique is trenchant enough to convince people that it’s awful and thus not worth purchasing, that’s a problem. On the other hand, the hypothetical Queen could claim that more people might buy the horrifically bad photo out of ironic amusement.
Considering there are at least two “good” or “safe” answers in the above, a reasonable defense can be made that it is indeed Fair Use–at least, enough to make a judge consider it.
So, to make a long story short (too late), my answer is no, I don’t think Queen is correct in his blanket statement that he doesn’t have the right to use it.
Based on the limited information here, I don’t see how Queen has a case. A comic book is not the same as a photograph. If you show a photograph in a critical context, you’re showing the entire work. But I assume the critic only showed excerpts of Queen’s comic book. And showing Queen’s work in a criticism of his artistic skills seems like a pretty clear justification for fair use.
I think that ads are probably OK. At the time the copyright legislation was written, the most likely avenue for art criticism would have been newspapers, which are supported almost entirely by ads. If use in criticism is allowed at all, then use with ads must be allowed also. It’d be different if the copyer were directly selling the copies themselves.
Oh absolutely! I was trying to think of what possible arguments a copyright-holding plaintiff might make against the hypothetical defense that this is fair use, and for the question regarding commercial vs. noncommercial usage this was pretty much the only one that sprang to mind. With a hypothetical defendant who posted this photo on a website (rather than an attempt to sell the photo directly), ad revenue was really the only “commercial” use I could think of, short of a subscription or paywall.
It’s not a strong argument, but I wouldn’t at all be surprised for a plaintiff to raise it nevertheless. (Especially since the other aspects are so weak as well.)
Yipe I should mention, I am very much NOT a lawyer, nor am I a copyright expert. Just a writer who’s read up on this stuff.
Looking at the site that used the works, they only use single panels or pages, not whole books. So, there’s a very good chance that fair use would apply: insubstantial part of the work, non-commercial, for comment/criticism.
The site also noted that Queen only seems to go issuing takedown notices to sites that are critical of his work: those that praise it apparently aren’t breaching copyright.
(Queen’s also apologised and withdrawn any takedown notices he issued too, so it looks like even he realised he doesn’t have a leg to stand on.)
Smart guy, although the Streisand Effect pretty much kicked in. Still, he may have staved off the worst of it.
This is the perfect example of how not to respond to criticism. In one of his whiny emails to the Tumblr site’s owner, he apparently complained that this artwork was created twenty years ago, early in his career, and so shouldn’t be criticized. He could have shown some grace and responded with a, “Ha, yeah, that was a long time ago. I’ve grown as an artist since then, thankfully. Here’s some of my new stuff that doesn’t make me look like someone who thinks women have no internal organs.” Of course, this assumes he has examples of his newer work to show he actually has improved.
It’s amazing what a sense of humor (and humility) can do to allay critics. It won’t change their opinions about the original works, and it shouldn’t, but at least the tone of the conversation could very well change from snarky attacks to an interesting discussion on the evolution of someone’s artistic style.
No one will ever beat the awfulness that is Rob Liefeld. Actually, Queen’s women do remind me a bit of the back-breaking curved spines and impossible waists of Liefeld’s women.
Anyway for another legal look at Queen’s (now wisely ended) tantrum, legal blog Popehat’s Ken White offers his take, and some of the comments do specifically refer to the photograph analogy and why it fails.
Choie was responding to my question “Is there ANY truth to Queen’s assertion (“I don’t have the right to do that”)?” regarding Queens hypothetical situation that that starts with “Let’s say I take”.
Lacking conclusive evidence of any transgenderism on Mr. Queens part, masculine nouns are the more appropriate.
