Saturday, March 12, 2011

Pandora's Pencil Box: are there limits to artists' intellectual property defenses?

By now some of you have probably heard of Greg Paul's situation on the Dinosaur Mailing List. His posts there have generated a lot of controversy, but without taking any particular side here, in short the issue is about the very real problem of paleoart plagiarism, namely of those scammers who blatantly copy Greg Paul's specific works verbatim for paid projects, often also underbidding him and making it that much harder to earn a living from paleo-art. So with good reason, he's threatening to sue the plagiarizers (and possibly museums or publishers who hire them for a pittance instead of going to Greg Paul and paying a fair price for the real "Greg Paul look").

However, he's also suggested that others not even use similar poses in their skeletal restorations. The classic "Greg Paul pose" with the left foot pushing off, is apparently something he wants to make into an exclusive brand. Unfortunately this is already a very common pose among skeletal artists and there are only so many ways you can pose a profile skeletal and still have it be accurate. Copyrighting poses raises a specter of slippery slopes where if every artist copyrighted different poses, eventually it would be impossible to draw an accurate skeletal without being sued. Instead of stopping intellectual property theft, this could stifle legitimate creativity. Skeletals of different artists look noticeably different, even when the poses are the same, i.e., a Scott Hartman skeletal looks different from a Greg Paul skeletal.

Now admittedly there are others on ArtEvolved whose knowledge of these issues is far better than mine, so what do you all think about this?  I understand copyrighting poses from a particular live scene of dinosaurs - after all, to copy those, you have to replicate not just the pose but the exact angle too. But with skeletal drawings the default angle is always a side view, and there are not very many ways to accurately pose is given our current knowledge of paleontology. Can poses really be copyrighted for skeletals? Should they be? Or is this a Pandora's Box of legal disaster for paleo-artists?


Traumador said...

Immediately I must say thank you for bringing this issue up Nima. I myself don't frequent the Dino mailing lists so this whole contraversy had passed me by till now.

Second your covereage on your blog is outstanding. May I suggest cross posting it here to consolidate the conversations.

I have to pop out right now sadly, but I'm bubbling to the brim with response to this.

The basic issues for me are:

1. Paul has not defined the "Gregoray Paul Style" enough nor the degree of plagirism and copying that is sufficent for legal action

2. His attacks against people undercutting him on price are also not defined in actual monetary values to be useful

So to me his arguement simplified (not by much either) boils down to he owns the copyright all Dinosaur skeletons and thus all Dinosaurs, and two he is the ONLY legitimate Palaeo-artist. I know this isn't what he is exactly trying to say, but it comes across as such.

I have some very specific thoughts on the using skeletal reconstructions and the "Gregory Paul style" coming up...

Mike Taylor said...

Greg actually has several unrelated points that he makes in these mails, and he's not helping his cause by conflating. To summarise, he says:

1. Stop copying my artwork outright.
2. Stop making your own skeletal reconstructions in the same pose as mine.
3. Stop underbidding me for commercial art contracts.
4. Stop basing your life restorations on my skeletal reconstructions.


On point 1, he is obviously correct.

On point 2, he is equally obviously wrong -- he's claiming ownership of a pose, which is nonsense.

On point 3, he seems to be simply describing how he would LIKE the world to be (no-one allowed to compete with him on price) and assuming that's how it SHOULD be, and I think all up-and-coming palaeoartists should feel absolutely free to ignore Greg's preferences on that score. This is how markets work: suppliers compete on quality, price, brand-recognition, etc., and it's not for Greg to dictate that competition should only be based on areas where he has an advantage (brand recognition) and not on those where he has a disadvantage.

Finally, point 4, basing life restorations on his skeletal reconstructions. Greg is very keen to point out (rightly) that his reconstructions are scientific work, and it seems to me that part of the purpose of science is to provide a basis on which to build. But I suppose if Greg prefers that his work not be used, it's polite to accede to that request, and use others' reconstructions instead -- for example, those of Scott Hartman. [I used elements of Greg's classic Giraffatitan in my own Brachiosaurus altithorax reconstruction (Taylor 2009): if I'd known he preferred us not to do this, I would certainly have used Scott's instead.]

TL;DR: don't copy Greg's art, pose your skeletons however you want, compete on price all you like, and look for other sources of skeletal reconstructions.

Glendon Mellow said...

MIke - great summary of the various points.

One thing to add to #3 about being underbid:

Paul has a point to an extent. The Graphic Artists Guild has a Handbook: Pricing and Ethical Guidelines which is widely adopted as the industry standard.

In my own experience however, Paul absolutely has a point that many art directors simply choose to ignore this and hunt around for someone underbidding the Guide. When tht happens, prices are lowered for everyone. And that sucks.

However as you and others point out Mike, there's not much we can do. I've turned down jobs by trying to stick to my guns about pricing and you know what? Then I make $0. I use the GUide as the starting point and usually settle somewhere lower. An industry superstar like Paul may be able to command standard or higher (I'm guessing) but in a world where so much commerce is done online, illustrations included, an editor can always find someone else.

Artists have lost some power and that's true. It's not a simple thing to say, "All artists unite! Don't underbid!" Underbidding also helps build careers. If I have the option of underbidding myself or someone else, that can be the difference of paying the phone bill or not.

Mike Taylor said...

Also: even if you do as Greg wishes, and don't underbid him, someone else will. So he still won't get what he really wants (no competition on price), but you will have been nudged aside -- most likely in favour of a non-specilist who does dinosaur art in the same way he might do fantasy art or some other genre, without attention to dinosaur anatomy.

I don't think there is really any way to prevent competition. If it ever was possible, it isn't now that we have a global market without walls.

davidmaas said...

That artists an and should organize can be argued wonderfully in the sense that everyone profits as a result. Paul's argumentation could have been such but, instead,he chooses to argue that he personally suffers. That's simply poor rhetoric.

I find the pose question upsetting for another reason - I've encountered a community predominated by sharing and driven by an exchange of understanding. Paul's arguments are so short-sighted there.

Glendon Mellow said...

Excellent points, David; agreed.

Nima said...

All of these are valid points that need to be discussed.

Mike, I agree with the majority of what you said, and you summed it up very concisely. Don't copy Greg's art, pose your skeletons however you want, compete on price all you like, and look for other sources of skeletal reconstructions.

The only thing I have problems stomaching is the whole "compete on price and underbid" thing.

NORMALLY, free market mechanisms and extreme competition would be beneficial. But the problem is that there's nothing normal about this situation.

Paleo-art in the commercial sphere, right now, is in a similar position to where labor was in the 1800s. No unions, no laws to prevent exploitation, artists are basically powerless (or let themselves be taken advantage of without knowing any better) and project managers are constantly making excuses that THEY are the poor ones who can't pay better wages. We've become too submissive.

Now the question is twofold - how did we let it get this bad, and how can we reverse this deterioration? Paleo-artists who actually produce good art with accurate science are skilled professionals. It makes no difference whether your economic hero is Marx or Milton Friedman. Skilled professionals should NOT have to scrounge around for less than minimum wage like unskilled laborers.

The problem is, artists in general have been ACTING like unskilled laborers. In other words (and I'm not naming any names here) many paleoartists and scientific artists have been demonstrating TOTAL IGNORANCE of the field - groveling to the corporations that hire them and don't understand the value of scientific accuracy, and actually giving in to the myth of their less enlightened bosses that nobody gives a hoot about quality and accuracy.

Ordinarily the fact that artists have more knowledge of the science than project managers would be a huge weapon of advantage in the hands of an intelligent artist, but the problem is most artists have become impulsive and desperate - and in some ways stupid. The project managers, museums, and corporations have a "Darwinian" mentality. The artists who keep underbidding unfortunately have a charitable mentality and don't know how to survive in the Darwinian minefield of their bosses. The project manager says "jump" and these fools ask "how high?" This is a problem Greg Paul mentioned in detail.

They don't understand human psychology or even animal social interactions in the slightest. So they wimp out and try to make themselves feel good about being screwed. But they've still LOST.

Sleazy corporate project runners will say "we don't have the money to pay you for the ten illustrations we asked for... our budget is so tight, waaa waaa waaah please can you fnd it in your heart to accept half of what you had asked for?"

They appeal to your sense of charity and generosity to "help them out". Guess what? THEY are hiring you to do the project. Not the other way around. They have the budget for hiring artists. NOT YOU. So you're the one whose worse off and really needs the money. Are they going to ever help you out in return when your situation gets REALLY bad? No, they are corporate bureaucrats. You though of charity and generosity, they only thought of how to work you the most and pay you the least. And they'll do it again because you LET them do it before. Because you've projected weakness, desperation, and a willingness to let them step all over you. Sheesh, it sounds almost like the first date from Hell.

Nima said...

This is the stupidest part of the underbidding war, which is what makes justifying its ruinous current extent under seemingly impartial free market auspices simply unfeasible. Employees should not be giving charity to their employers! Especially when those employers are hiring you short-term and the work is under contract.

Word the contract explicitly and STICK to it. Changing your word later (whether to accept less pay or do more work for the same pay) is unprofessional, and in unprofessional, unwritten back door agreements, the corporation ALWAYS wins.

Now I realize that underbidding is often seen as a "lesser of two evils" where you either work for less or you make no money at all. This can be somewhat true at first, but when you are underbidding to the extent that the pay is not even liveable and affects the entire profession, this is disaster.

The problem is that too many artist simply accept that scenario pitifully and have no idea that you don't have to give in to everything on "their terms".

Remember what I said about the scientific artist's knowledge of science being a weapon of advantage over the corporations? Well here's what it really means. If you're a Greg Paul or a Mark Hallett or a Mauricio Anton, you're at the top of your game and you know it. You know your work has both scientific and artistic value. AND you know that better science in your art makes dinosaurs MORE attractive and LESS dull/boring. So you have two things going for you here - your knowledge of science and your name brand recognition.

Now even if all artists did unite and make a guild that set prices, that would have the potential disadvantage that project managers would go outsider the guild and hire inexperienced low-quality artists to paint dinosaurs for cheap - the end result is the crappy illustrations in popular books with all their ugly ridiculous anatomical errors - and the real paleo artists make $0. But there IS a way to use your knowledge and a bit of guts and charisma, to your advantage. Remember, YOU know both the science and the art worlds. You know who all the big players are, and what things you can do better than them. That's information that ignorant project managers often don't have and couldn't care less about. YOU are the industry insider. Don't beg for minimum wage like some grade school dropout who never learned a thing.

Put it to the managers this way - car manufacturers don't hire engineers with no experience or no degree. They don't want a bunch of defective cars, bad reputation, and loss of profits in exchange for hiring the cheapest underbidding engineer possible. I'm a professional working at paleo-art and scientific illustration for over 20 years (or however many years). I know the ins and outs of the science and the industry hundreds of times better than any of the amateurs out there who are willing to undercut me and live dead-broke out of a trailer as a result. With me you always get top-notch work, on schedule and genuine. Audiences LIKE my art better than any half-assed imitator because it actually looks like real dynamic animals that you could imagine going back in time and either touching or running away in terror. You will get more visitors/subscribers/viewers, etc. especially when I get the word out that MY work is featured there.

Nima said...

Tell them something along the lines of:

"Do you want to make more money or less money? More, of course. You could pay some unknown with next to no skill in this very complex profession to make some ho-hum illustrations that bring in a few more museum visitors/magazine subscribers/TV viewers than before, or you might just barely break even. That's not making money, that's stagnating or losing money - losing your edge to competitors X which is hiring paleo-guild members and already moving ahead in ratings/profits. Unprofessional behavior from artist means unprofessional work and a lousy bottom line."

"Or you could hire me with reasonable compensation, I'll hold up my end of the deal with no compromise on the beauty and accuracy, and you'll get easily twice the increase in visitors/subscriptions/viewers, AND more repeat visits/gift subscriptions/demand for an encore presentation. I can command a higher price because I get you better results and more profits than the competition regardless of economic or market conditions."

(notice that I said "the competition", without specifically pointing out whether it's my competition as an artist I'm referring to, or THEIR competition as an institution - this is key. Let them interpret such things as best fits the comfort of their vanity).

Inexperienced underbidders and imitators only SEEM like a good deal for the employer/contractor. They are actually a failed quantity, not just an unknown one. They could cost the contractor thousands in legal fees by ripping off a real artist's work, or just produce inferior work and NOT generate the sort of publicity and cash flow for the exhibit/publication that a real master artist could.

"you could pay an industry outsider less than $2000 for five illustrations and get sub-par work and break-even results at best, or pay me $7000 for the project and get industry-standard or better quality, and actually make a decent profit in visitor tickets/ viewership/subscriptions. When it comes down to the final balace sheet, you can barely break even with a cheap underbidder, or actually make money with me, as I have a PROVEN track record and staying power"

Remember, as an artist you have to realize how these guys think - they think about their bottom line. Many of these project managers are under pressure from their bosses higher up to produce money-making ventures, and if they can't do that (which most can't, due to having nearly the same desperate slave mentality as underbidders and no knowledge of quality or the industry) at least slash essential costs enough to break even. If you can persuade the project manager (or better yet, his BOSS) that you know the business and the demographics, that your work will bring them MORE MONEY than some groveling underbidder, and you have a decent portfolio and CV to show in proof, then you're good as gold and they may even consider hiring you again.

If they actually believe they can MAKE money with you, that the public LIKES high-quality paleo art better than the usual crap, they will not be going into scarcity-survival mode and looking for the cheapest artist without regard to quality.

You just have to know enough about the industry, know who is already being hired for what, and a few statistics about which employers are making more money. You can extrapolate the rest as you see fit, just make sure it's consistent with you demonstrating an intellectual and technocratic authority over THEIR narrow reality.

Sell yourself smarter, not cheaper.

I'd love to go into this further, but I want to get some perspectives on this from pro artists. I.e. who is more easily persuaded, the project managers or their bosses, how do you go about presenting the difference quality can bring that justifies higher compensation, how underbidders seem like a good deal but in reality produce very meager results, etc.

Glendon Mellow said...

Nima, I feel compelled to correct your first comment in this thread a little bit.

There are artist and illustrator guilds already. Whether they are strong enough or respected enough is debatable sure, but they do exist and continue to need input and support from professionals.

-The Guild of Natural Science Illustrators (GNSI)

-The Graphic Artists Guild (GAG)

-The Society of Illustrators (SI)

-The Illustrator's Partnership of America (IPA)

And many more. And they do good work defending artists rights. Most of these groups have been lobbying heavily against the Orphan Works legislation in the USA, for example.

Work is being done. But we're in a cultural shift right now between one form of publishing (print press, dead-tree books, mainstream media) and new forms (print-on-demand, ereaders, the internet, file-sharing) so there's a lot of new situations arising, and no one is sure what the right paradigm is to allow artists to have a career and adopt the new tech at the same time.

I view Paul's complaints in part a frustration by someone used to the old system butting heads with the new one.

Mike Taylor said...

Every comment I leave here gets queued for moderation, and appears only 24 hours or so later. That means I can't feel like I'm contributing to an ongoing conversation, just commentating on what has been said earlier. Is that how it works for everyone, or is the blog's moderation system singling me out?

Traumador said...

Mike- It is not singling you out personally. The problem is as a community blog we have multiple members who are able to post directly due to being authors on the site. Yourself and other non-AE members have to wait for one of the admins to get to your comments.

Normally this would be quicker than 24 hours, but I am currently out of town visiting another administrator (Peter) which has ended up taking us both out of commission for the past two days. Poor Glendon has been on his own. So some sympathy his way ;)

Normal moderation service recommences tomorrow night with my return back home allowing all three of us to keep on top of this.

Traumador said...

Everyone- Based on the issues raised by Mr. Paul and the reaction this has generated we are thinking about launching a Philosofossilising on some or all of these topics.

So perhaps think about collecting some of your thoughts for a post to be part of this series. Not that these comment section discussions are bad or anything. I'm just not sure everyone is catching what's been said.

Heinrich Mallison said...

three points to make; see here:

Nima: good take-down!