Let the Money in the Door: Opportunity in the Case of an Independent Artist

Flying dollar signs.Leonard Kirke is an author, blogger, and video artist based in Ohio. A believer in the ideals of Free Culture, he releases all of his work into the public domain via CC0, and is currently at work on a fantasy novel, the first in a series, aimed at children and young adults. His blog The Vertigo of Freedom can be found at leonardkirke.wordpress.com.  He is also a regular contributor to the surreal multimedia art project known as The Jeremy Kellerman Advice Hour Archive, which can be found on YouTube, Blogger, and the Internet Archive.

Many stories surrounding the debate over copyright today are focused on purely corporate affairs: film studios cracking down on illegal file-sharing, fair use being trampled on Youtube, record labels hunting down cover bands, and the efforts of lobbyists to pass far-reaching anti-copyright infringement legislation, such as SOPA earlier this year, that threaten internet freedom.

Recently, however, a story has been making the rounds online via social media that is certain to draw both the sympathy and righteous indignation of struggling independent artists everywhere. The story, and the following built by the man at the center of it, highlights some of the popular, often-unquestioned assumptions about the supposed inherent justice of copyright law.

As recounted in a post on his Tumblr account, the story begins back in 2008 when freelance artist Max Hancock, who often works under the pseudonym Kouotsu, created both a 2-D and 3-D character model design for a robot girl as part of an assignment while he was in art school and posted it to the popular site DeviantArt.

He goes on to explain, “I failed to put my name/info on the image though, so it has been spread around the internet and some people have modeled it without my permission (just for the record you don’t have to sign something for it to be protected by copyright). They usually find out who made it later and gladly credit me. So I don’t mind!”

That is, he adds, “Until someone tries to sell it.”

That is exactly what happened, he says, starting in March of this year, when another artist began selling a derivative version of his design on Turbosquid, a site which allows the sale of 3-D models for use in various media.

The full Tumblr post can be read here http://kouotsu.tumblr.com/post/34584552625/so-ill-try-to-sum-up-whats-happening-here-in, and the response from the head of Turbosquid can be found here http://turbosquidinc.tumblr.com/post/turbosquid_to_kouotsu. Further posts continue to elaborate as the situation has unfolded.

Mr. Hancock is obviously no stranger to the concepts of copyright and of credit, and very much a believer in both. When a Turbosquid agent initially suggested he have some pity on the accused “infringer,” he had this to say: “They tried to appeal to pity by talking about how hard he worked on creating the model from my design. HI! I DID THAT TOO!”

Later, he talks about how wronged he feels due to the whole incident: “I think it goes without saying that the profits belong to me. It is not right for a guy in another country to steal my design and make thousands from it while I struggle to make ends meet. I have never made a penny off of that character design.”

The plight of Max Hancock is indeed unfortunate; few would wish an artist to fail, or to struggle needlessly. Fans want to support the artists they love so that they can continue creating art, regardless of medium. We can see that this incident has captured the attention of Max Hancock’s supporters, and likely many sympathetic strangers sensitive to the problems facing independent artists have also contributed to the story being spread through social media.

Yet much of the righteous indignation here is founded upon the same very questionable principles upon which so many corporations rely in their own IP battles, and which so many people are, when the issues are presented in that context, beginning to question.

Though it’s been said before, there is a very important difference between copyright and plagiarism. The latter is a moral rights issue. There may be much to be said in favor of the view that the artist on Turbosquid infringed upon Max Hancock’s moral right to attribution. If the other artist indeed placed his own name on the work, and failed to mention Kouotsu/Max Hancock as the original artist of the work upon which his derivative design was based, then certainly there is a case to be made that the original artist was morally wronged.

Yet Hancock himself admits in his Tumblr post that he lets failure-of-attribution slide in most cases. The real issue here is obviously monetary, specifically the monetary aspect of the government-granted monopoly that is copyright. The concern of an artist like Max Hancock is very understandable, as he needs to continue profiting from his art, as he says, to make ends meet.

Certainly, Mr. Hancock is correct in his representations of copyright law, and is correct in stating that the law is on his side. Yet in the midst of the uproar, it would be worthwhile to ask if the law itself, and the assumed “right” underlying “copyright,” are really defensible, even in an emotionally-charged situation like this one. Further, one must wonder if the very same fan-based defense Hancock drew upon for support might imply a different way of dealing with this situation, one that could ultimately be to Mr. Hancock’s benefit far more than a copyright infringement lawsuit would be.

Assuming that plagiarism was at work here as has been alleged, then Mr. Hancock is within his rights to address that issue. However, it could be argued that his claims to compensation for the other artist’s monetization of their derivative work are not so solid.

“I have never made a penny off of that character design.” says Mr. Hancock. But why would he have? He never attempted to monetize his character design. He was content to let it get reused with attribution as long as the uses were noncommercial, and was even content to allow lack of attribution, hoping that whoever re-used it without attribution would eventually learn of his identity and credit him. This was the extent of the use Hancock allowed of his design…and the extent of his pursuit of its use.

Now, Hancock believes that because profits have been made in 2012 on the sale of copies (specifically, copies of a derivative made by someone else) of something he created in 2008, then the profits belong to him.

Yet he created that work as part of a school assignment. It was certainly not a work for hire or part of any commercial project, and he seemingly had no expectation of making money from it in the first place. Even if he did, he made no attempt to do so.

One may argue that the derivative created by the artist on Turbosquid is not “different enough” to constitute an “original” work, but as anyone familiar with copyright law knows, those kinds of arguments can get quite slippery. But even if the consensus is that the designs are incredibly similar, or even if there was an exact copy being sold rather than a derivative, what exactly was stolen from Hancock?

The derivative does not take away Hancock’s original design from him, nor does it deprive anyone else online from copying it for themselves. Through his efforts at publicizing his case, plagiarism is certainly not the primary issue any longer; by now, anyone familiar with the incident knows that Kouotsu is the original artist. It does not prevent Hancock himself from monetizing the design either, and that brings up a final, but no less important point: what Max Hancock could be doing to use this situation to his advantage instead of attempting to reclaim profits he never sought in the first place.

From the fast spread of the story, it is clear that people want to support Max Hancock as an artist. So rather than consider pursuing legal action against the artist of the derivative work, or against Turbosquid, Mr. Hancock should be asking fans to support him directly. He needs to ask his fans to put their money where their mouth is.

Mr. Hancock has a wonderful opportunity here to show that ultimately, it is an artists’ fans that are the ones to reach out to if an artist is going to make a living, and that nebulous state-granted monopolies are not the path to success. His next step should not be to incite righteous anger against the accused “infringer” (and accused plagiarist), but rather to channel the support he’s already shown that he can inspire into the sharing of his work, both to increase his exposure and to motivate his fans to help him continue his work with donations.

Rather than relying on the same system as the artist of the derivative version of his design, and on copyright, Hancock should ask his followers to support him monetarily by making donations, paying for unique physical copies or originals of his art (after all, copying is not theft, but a container IS a limited resource that can be rightfully monetized) and by continuing to share his work with other potential fans.

If the same people who shared his story of copyright infringement would donate to him or even buy physical copies of his work, he might just have a chance to make as much as the artist on Turbosquid made from his derivative of Mr. Hancock’s design. Perhaps he could even make much more. If fans pitched in with the same fervor they have already shown in sharing his story and offering works of support, Mr. Hancock could likely prosper even more than the artist of the derivative work, perhaps even if that artist were allowed to continue selling his version of Mr. Hancock’s design.

Plagiarists deserve to be exposed for their false claims; there is no good argument to the contrary. But the clarity of plagiarism should not be confused with the vague, ethereal plane that is the world of copyright. Copying is never theft, and sharing, especially when done with attribution out of ethical consideration for an artist, can only be helpful for all artists. Yet in the days since his story first came to light, Mr. Hancock has only continued to voice support for the concept of copyright, even going so far as to counsel people on what he perceives as the value of registering works with the government Copyright Office.

One would hope that Max Hancock might see this as an opportunity to grow his fan-base, benefit from their financial support, and show the world that artists, in actuality, do not need copyright to thrive. He’s already proven that he can draw plenty of positive support for himself, now he only needs to channel that support to actually further his work as an obviously very talented visual artist, rather than letting himself get bogged down in what could wind up as a costly and lengthy legal battle.

In the end, such a course of action would only serve to create an air of legitimacy for the claims of corporations and middle-men who truly benefit from copyright far more than the vast majority of artists ever will. Supporting copyright will only support the same industry of traditional gatekeepers that make it difficult for artists to find wide exposure for their work. By embracing openness and relying on the support of fans, Mr. Hancock could benefit himself far more than an expensive legal battle ever would.

When artists set their art free, as Nina Paley would attest, they can make a living, form deeper connections with their fans, and avoid the Sisyphean task that is a copyright lawsuit. It may never be easy to make a living as an artist, but why would one support a faulty system that makes it even more difficult?

To drive the point home one final time, here is a comment on the original post from one of Max Hancock’s loyal fans, “mari-tan,” on his Tumblr. If he can generate this kind of support pursuing those that he believes have wronged him, then certainly he can generate support directly through donations, sales, and the free sharing of his work, surely a much more effective path to success than he will find in copyright.

“That post actually makes me really, really sad. I’ve been following your art since around 2007 and it just… makes me really angry that this is happening to someone like you. I just want to tell you that you have my full support and if it comes to the point that you need support from any of us that love your art, I’m definitely here to help you win in anything you may need!!”