July 31, 2012 in Business

Copyrights and wrongs

Artists combat illegal use of their work
By The Spokesman-Review
 
Tyler Tjomsland photoBuy this photo

Charlie Schmidt poses with Natto, one of his cats who plays Keyboard Cat in some of his famous videos, in front of a painting of Bento, another one of his Keyboard Cats, on July 19 in Spokane.
(Full-size photo)

Definitions

This is how the law reads:

• Plagiarism is using another’s work without giving proper credit.

• Copyright infringement is using someone’s creative work without authorization or compensation, if compensation is appropriate.

Spokane artist and actor Charlie Schmidt often gets emails from friends and strangers reporting yet another appearance by his long-dead, still-famous cat, found on a website, blog or product catalog.

Sometimes the reports are of websites simply using his viral video, “Keyboard Cat,” the 55-second clip he made in 1986 that became a web sensation 13 years later.

Other times, he finds a business selling merchandise using the Keyboard Cat name or the image of Fatso, the feline in the video. Using the video or the image of his cat without a license violates his copyright; using the name Keyboard Cat for profit violates Schmidt’s trademark for that phrase.

Another Spokane artist, Ken Spiering, designed Riverfront Park’s iconic Radio Flyer sculpture – the oversize red metal wagon that doubles as a play slide. Like Schmidt, he relies partly on the help of others to track people selling pictures or toy knockoffs of his work.

The Internet culture of reproducing and sharing copies of pictures, videos, books or music has led to widespread copyright violations. The scale of the problem is vast, said Seattle attorney Caitlin Bellum, but not easily quantified. “People share and display every aspect of their lives now,” she said. “And it’s become very simple to copy others’ work by just copying and pasting,” she said.

Bellum was hired by Schmidt and successfully forced a Midwest T-shirt maker to stop selling products with images that looked just like his Keyboard Cat.

Artists can also use digital tools to better track infringers, Spokane attorney Whitney Baran said. “Some intellectual property owners can afford investigative and enforcement services to protect their portfolios,” said Baran, who has represented Spiering in some legal disputes.

“If you do not have those resources, you may have to search out infringement on your own or rely on your networks to point out questionable conduct,” Baran said.

But Schmidt said the key concern for him is when someone is making money off his work. He’s fine with someone simply linking to his video.

The Keyboard Cat phenomenon is now a six-figure business, Schmidt said, including lease payments from other companies as well as merchandise he creates and sells online.

Spiering said the Radio Flyer wagon is not a major moneymaker for him, although the royalties he earns from licensing the wagon’s image have mostly covered the legal costs he has incurred in protecting the copyright.

Both artists rely on an informal network of friends, relatives and online Samaritans to find copyright violators. Both say they’d rather not turn to lawyers, but they know the law offers stronger protection if an artist actively challenges others who misuse their work.

“The law says you have to go after (violators) of your copyrights,” Schmidt said. “If you let people just go on doing it, it becomes harder to stop others, who will then use your stuff and say, ‘Hey, everyone’s doing it.’ ”

Spiering’s East Coast relatives recently sent him a copy of a promotional booklet of a large restaurant chain in the Southeast. The book included pictures of U.S. travel landmarks, and Spiering’s wagon was prominently featured.

Spiering sent the material to Baran, at K&L Gates’ Spokane office. Spiering said he’s requested the food company to stop using the image. To continue using the image, it will have to get either a license or permissive use agreement from Spiering. If the company refuses, Spiering said he would consider other legal options, including seeking damages.

“It’s not in my best interests as an artist to have to do this,” Spiering said, noting he prefers focusing on creating new work, not protecting past projects.

“But in some respects it’s necessary.”

He’s also seen reproductions of his wagon in snow globes, as refrigerator magnets and on postcards.

In a few cases letters from his attorney led to royalty agreements, whereby a postcard producer is allowed to license rights to the image of the wagon in exchange for a payment to Spiering.

Schmidt said about 20 percent of his working day is devoted to legal issues, including addressing possible copyright violations and filing new copyright licenses for other works he’s created. For example, he’s started a site, Keyboardcatforpresident.com, that sells a range of merchandise, including T-shirts, campaign buttons and coffee mugs. (The images and video are not of Fatso; they feature Schmidt’s latest cat, Bento.)

He’s helped in that quest by Ben Lashes, who manages copyright and licensing issues for a number of artists. Lashes is the son of Spokesman-Review columnist Doug Clark.

Schmidt recognized his potential copyright problems more than two years ago when he spotted a comment on his own YouTube page from someone who asked if he was the maker of a Keyboard Cat “Three Keyboard Cat Moon” T-shirt being sold online.

He researched and found that a Chicago-based T-shirt company, Threadless, was selling the shirt with images taken from Schmidt’s original video.

A year later Schmidt hired Bellum, who filed a lawsuit against Threadless in U.S. District Court in Spokane. Threadless last week agreed to settle the suit and pay an undisclosed sum to Schmidt.

Sometimes all it takes is educating others about copyrights, Bellum said. Not all violations deserve to be actively pursued by initiating litigation; many people will stop using Schmidt’s work if requested, she said.

“The problem is this is the free generation. People believe that if it’s on the Web, it’s free for anyone to use,” she said.

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