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Donna Barstow vs. Something Awful

Political cartoonist Donna Barstow is in an Internet war with the website Something Awful. Members of the Something Awful message boards have been re-posting her single-panel cartoons for the purposes of criticizing them. Evidently, they’ve been doing this to a lot with her cartoons. The criticism seems to be focused in equal measure to both her right-wing politics and her supposed lack of artistic abilities.

The criticism has been vicious.

Barstow has responded to all this by demanding that her cartoons be removed from Something Awful. She has accused the website of using her work without permission. She argues that she makes her living writing and drawing cartoons and expects to be paid when her work is used for publication. She’s accused the people behind Something Awful of theft and copyright infringement.

I think Donna Barstow has a point. Sort of. There’s fair use and then there’s blatant theft. I don’t see how it’s fair use for a site such as Something Awful to allow its members to post copyrighted material in its entirety without the permission of the copyright owner. Something Awful is making money from these forum posts and the traffic they help generate. The posts I saw had advertising for Toyota and Western Union, just to name a few. These forum posts aren’t linking to websites that have actually paid to publish Barstow’s work, sites such as Psychology Today, Slate, New Yorker, and a bunch of other publishers of content; they are embedding the actual images.

When something is posted in its entirety, in this case, a single-panel comic, it’s not fair use. It’s theft, especially when it goes against the wishes of the content owner.

If Barstow really wants to the images removed, she’s barking up the wrong tree. The images appear to be hosted on the image-hosting service Imgur and then hot linked to the Something Awful message boards. This is pretty normal when it comes to posting images to message boards.

Posting copyrighted material on Imgur is against the site’s terms of service. Instead of trying to get Something Awful to remove the images of her work, she should be contacting Imgur.

Comments

  1. Wil says

    Fair use is fair use…it doesn’t matter how short the work is. If you write a haiku, I am in my rights to reproduce that haiku, asking with my critique of it. And that’s the crux off the matter…Barstow’s complaint had more to do with what SA members were saying about her work, under the guise of copyright. Unfortunately, her cries of copyright infringement aren’t supported by numerous SCOTUS rulings in fair use; her cries of defamation don’t hold up either. The advertising angle is a red herring too…case precedent doesn’t support it. if the money doesn’t directly come reselling or otherwise marketing the work, the advertising revenue is incidental.

    • Rick Rottman says

      Much of what you are saying is actually the complete opposite of what the law says when it comes to fair use. According to the law, four factors must be considered when determining if something constitutes fair use:

      (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      (2) the nature of the copyrighted work;
      (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      (4) the effect of the use upon the potential market for or value of the copyrighted work.

      I’m no lawyer, but it would appear the law is squarely in Barstow’s favor, especially factors one and three.

      • Wil says

        I’m not so sure that the law is particularly in Barstow’s favor on this, and several prominent lawyers with experience with theses cases have weighed in on this one (some of whom attempted to help her, which she rejected).

        It also must be pointed out that while those are the basic factors, they are not cut and dry. Here is something from the link above that you left out (all caps emphasis mine):

        “for purposes such as CRITICISM, COMMENT, NEWS REPORTING, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”

        You also left out with regards to #1: “It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.” In other words, the fact that the cartoon was not reproduced for the purpose of making a profit, and was done so for the purpose of criticism or commentary – would be considered by any court and severely weakens Barstow’s case. Does this mean that it’s a slam dunk against her? No…but it would be a difficult uphill battle.

        A good example of one of those battles was Hustler vs. Flynt (the subject of the movie “The People vs. Larry Flynt”) – Falwell sued Hustler over its ad depicting Falwell’s first sexual encounter, Flynt counter sued over Falwell republishing the ad. The end result (after appeals and a SCOTUS decision) was that both uses were upheld as either free speech or fair use. Of interest here is Falwell’s *full* reproduction of the Hustler ad. Even though there was money raised as a result of Falwell’s campaign that used the full reproduction of the Hustler ad, Reinquist ruled that republishing the ad was “fair use.

        Donna Barstow has also engaged in some hefty “pot-kettle-black”. She accuses people of “stealing” her work and reposting it whole, because she’s never done the same thing…oh, wait…

        http://web.archive.org/web/20100706080240/http://opedcartoons.com/2010/05/19/bp-oil-when-everyone-knows-your-name-but-nobody-likes-you/

        In the end, it appears that Donna Barstow only brings up the “It’s not fair! That cartoon is mine!” argument when she doesn’t like what someone is saying about her comics – but it’s perfectly fine for her to do it to someone else. And it’s not the first time that she’s done this either:

        http://www.amptoons.com/blog/2009/04/30/cartoonist-donna-barstow-attempts-to-shut-down-criticism-of-her-work/

        Finally, I also am not a lawyer. So instead I highly suggest that you read this post (which was written by a lawyer):

        http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

        • Rick Rottman says

          I didn’t leave anything out. I quoted part of an article along with the link to the actual article. That said, I don’t see how anyone can argue that Donna Barstow isn’t within her right to ask that the images be taken down or to have Something Awful pay her for the privilege of publishing her work. That’s how she makes her living, by charging content publishers for the right to publish her cartoons.

          It isn’t like only a few of her cartoons were published on Something Awful along with links to the sites have paid for the right to publish her work. Reproducing one or two of her cartoons could be considered fair use. Maybe. Anything more than that, doesn’t seem like fair use, especially when it’s very easy to link to the actual source.

        • Zachary Sloan says

          It doesn’t seem like you have any basis for your belief that anything more than that “doesn’t seem like fair use.” Wil did a pretty good job of explaining why the particular context in which the material was posted (a thread dedicated to criticism/discussion of political cartoons) makes it a pretty cut and dry example of fair use.

          I think part of the confusion stems from the 4 criteria you posted in your first comment. It seems like you’re interpreting the law in such a way that it isn’t fair use if just one of those points applies to a great enough extent. For example, if you post a lot of material – making (3) true – it somehow outweighs the other aspects not applying to this situation. But the fact that this material was posted by users (not SomethingAwful itself, keep in mind) in a thread dedicated to criticism/commentary without any direct* relationship between the cartoons and revenue makes any argument that it doesn’t constitute fair use pretty weak.

          Really, I encourage you to read the popehat blog post that Wil linked. He’s better at explaining the details and gives the legal precedent for his views on the issue.

          *The fact that ads exist on the website doesn’t make any material posted on it not qualify as fair use. You have to look at the way in which the business makes its revenue. In SomethingAwful’s case, it is through entertainment (in a general sense). Because these comics weren’t being posted with the intent of entertaining people in and of themselves (users were posting them to discuss them), it isn’t the same as a situation where a website just posts other artist’s material with no context and solely with the intent of people viewing it and being entertained by it.

        • Rick Rottman says

          I’ve already read the before mentioned article. I just don’t agree with a lot of it.

          A couple of years ago, LiveJournal took down a popular group dedicated to posting scans of comic books for the purposes of critique, Scans_Daily. Even though members didn’t post complete comics, the site was removed for copyright infringement. More can be read about it here:

          http://comicsworthreading.com/2009/02/28/scans_daily-shut-down-another-free-comic-site-gone/

          The same arguments were made about Scans_Daily, even though they didn’t post complete works like the members of Something Awful have been doing. Unlike Something Awful, actual real critical discussion was taking place on Scans_Daily. On Something Awful, not so much.

          There’s no denying that political cartoons prompt debate. That’s why publishers pay cartoonists to produce them. If anyone can simply copy a cartoonist’s work without their permission and reproduce it as they see fit, why would anyone ever pay for it?

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