VeRo Suspension: Item unmodified & legit
DomDawes
Trying to deal with them via e-Mail has ended up with me being suspended after
I requested a copy of the complaint by the Vero member (Warner Brothers) to
prove that the item in question was NOT in violation!
(Here's an example of a similar sheet I sold from the same batch which they
DIDN'T complain about...)
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=747259859
I was told...
We regret to inform you that we have suspended your account for repeatedly
violating eBay’s VeRO Program Policy.
My response...
People:
I wish to protest the suspension of my account.
All the material in my current auctions was produced by the given copyright
owners (including DC Comics & Warner Brothers.)
There are NO PIRATED materials!
There are NO COUNTERFEITS!
THERE ARE NO UNLICENSED MATERIALS in ANY of my auctions!
I demand to see the complaints posted by Warner Brothers regarding these
auctions to respond point-by-point (as is my legal right) to the complaints!
"As of February 14th, 2003 (10 days since the last of nine [9] attempts), there
has been NO response from Warner Brothers reagarding this situation.
By your own rules "If you contact the rights owner and do not hear back within
5 business days..." they have defaulted on their right to due process.
As eBay has acknowledged, Warner Brothers has failed to respond in a resonable
amount of time to my request for information regarding their erroneous
statement that the item in question was in violation of their copyright or
trademark. (A ludicrous concept since the item was produced by DC Comics and
approved by Warner Brothers' legal department in 1982!)
I therefore demand the VeRo be revoked and the item relisted on eBay, since it
violates NO trademark or copyright held by Warner Brothers, DC Comics or any of
their associated companies."
In a message dated 2/14/03 8:54:36 PM, DomDawes writes:
<< What copyright, trademark, or other right does a 21-year-old repro art
(enclosed) sheet, produced and approved by DC Comics interfere with?
And, if sale of a 21-year old repro sheet, no longer in use, conflicts with
"your rights", how about a 50 year-old Tom & Jerry sheet? Where is the line
drawn?
I demand to see a copy of the specific complaint.
I believe the VeRo member has commited inadvertent perjury since the item in
question is a fully-approved product of Warner Brothers, not a copy, not a
counterfeit.
In a message dated 2/14/03 4:18:51 PM, whye...@ebay.com writes:
<< Dear domd...@aol.com,
**PLEASE READ THIS IMPORTANT EMAIL REGARDING YOUR LISTING(S)**
We would like to let you know that we removed your listing:
2159455577 Batman Flash Wonder Woman & Girl Repro Art
because a member of our Verified Rights Owner (VeRO) Program notified us, under
penalty of perjury, that your item infringes their copyright, trademark, or
other rights.
If you believe your listing was ended in error, or have questions regarding the
removal of this listing, please contact the VeRO Member directly at:
Warner Bros. (Time Warner)
anti-...@warnerbros.com
eBay is available to answer questions, but since it is the VeRO Member that
requested the removal of your listings, we encourage you to contact them first.
Thank you for your cooperation.
Regards,
Customer Support (Trust and Safety Department)
eBay
-----------------
Forwarded Message:
Subj: Re: VeRO NOTICE: eBay Listing(s) Removed - VeRO Program
Date: Friday, February 14, 2003 8:54:36 PM
From: DomDawes
To: whye...@ebay.com, anti-...@warnerbros.com
What copyright, trademark, or other right does a 21-year-old repro art
(enclosed) sheet, produced and approved by DC Comics interfere with?
And, if sale of a 21-year old repro sheet, no longer in use, conflicts with
"your rights", how about a 50 year-old Tom & Jerry sheet? Where is the line
drawn?
I demand to see a copy of the specific complaint.
I believe the VeRo member has commited inadvertent perjury since the item in
question is a fully-approved product of Warner Brothers, not a copy, not a
counterfeit.
Mac McDougald
domd...@aol.com says...
Well, doesn't seem "right", but your opening statement in auction:
"This is one of a set of art sheets included in the DC Comics Licensing
Guide issued in 1982 (20 years ago) to licensees as clip art, and artists
for costume reference. NOT available to the public!"
So I guess their contention is that you can't sell it since you aren't
the original licensee? And/or have no rights to transfer the license for
it?
Mac
Don Lancaster
Um, the legal precedent that applies in this case is that a Smith and
Wesson beats four aces.
--
Many thanks,
Don Lancaster
Synergetics 3860 West First Street Box 809 Thatcher, AZ 85552
voice: (928)428-4073 email: d...@tinaja.com fax 847-574-1462
Please visit my GURU's LAIR web site at http://www.tinaja.com
bp
> Can anyone direct me to a phone # regarding VeRo.
> Trying to deal with them via e-Mail has ended up with me being suspended
after
> I requested a copy of the complaint by the Vero member (Warner Brothers)
to
> prove that the item in question was NOT in violation!
Usually, a suspension is because you have continued to sell the same thing
after being warned.
It's too late to clear this up now. You should have done that after
receiving the first warning, before listing a second time.
Based on previous situations like yours reported in this newsgroup, it's
safe to say that your eBay account will never be reinstated.
> I wish to protest the suspension of my account.
> All the material in my current auctions was produced by the given
copyright
> owners (including DC Comics & Warner Brothers.)
That is exactly why they have the right to control how these items are
distributed. Even if your auctions were not in violation, you would be
permanently suspended for relisting them before getting that cleared up. But
here you yourself have told eBay that what the VeRO member says is true.
DomDawes
<< "This is one of a set of art sheets included in the DC Comics Licensing
Guide issued in 1982 (20 years ago) to licensees as clip art, and artists for
costume reference. NOT available to the public!">>
doogleRE...@nxs.net suggests...
<<So I guess their contention is that you can't sell it since you aren't the
original licensee? And/or have no rights to transfer the license for it?>>
Except I'm not transfering the liceense or any reproduction rights.
I'm selling it as a collectible piece of art, much like any other original
comic art from DC Comics on eBay. (and there's several hundred up there at any
given time.)
I've offered to post a notice saying
"This art is sold collector-to-collector with no reproduction or licensing
rights given or implied." but Warner Brothers never even responded to my
numerous e-mails!
The art is not currently in use in ANY merchandising or licensing (and hasn't
been since a new Style Guide was introduced in the early 1990s!)
It's like selling an old stock certificate. Pretty to look at, but possessed of
no intrinsic value exapt as art.
-D
Mac McDougald
domd...@aol.com says...
Well, I dunno.
Logic is probably not the best tool in these matters anyway.
To echo others here, apparantly you listed this/these more than once or
even more than twice?, after being warned.
So obviously, the thing to do would have been to either try to change
their ruling before listing again, or ceasing and desisting, regardless
of your interpretation?
Mac
DomDawes
>I wish to protest the suspension of my account. All the material in my current
auctions was produced by the given copyright owners (including DC Comics &
Warner Brothers.)<
b...@bidpanel.com sez...
<That is exactly why they have the right to control how these items are
distributed. Even if your auctions were not in violation, you would be
permanently suspended for relisting them before getting that cleared up. But
here you yourself have told eBay that what the VeRO member says is true.>
So, according to you, we can't sell our old Superman or Batman comics because
DC/Warner holds the copyright on them and they were produced by DC
Comics/Warner Brothers? (All produced by the given copyright owners!)
We can't sell original art used to produce the comics?
(Considering eBay has several hundred DC Comics original art auctions going at
any given time, that seems irrational and silly. (And all produced by the given
copyright owners!))
We can't sell our videos (which we bought at Tower Records) of Batman? They
were produced by Warner Brothers/DC Comics! (All produced by the given
copyright owners!)
You either don't know trademark law or you work for Warner's legal department.
(which could also mean you know nothing about trademark law.)
-D
Don Lancaster
Let me give you a similar example.
A medical company LEASED a book to the military which they inadvertently
sold to me.
It got yanked from eBay because the lease terms forbade reselling.
Similarly, if there was an insider comic art distribution as part of a
coop ad program or whatever involving signed agreements of any sort, a
third party usually does NOT have any reselling rights.
zamfir
I totally agree with your argument and think it is a valid one, you
won't win. Sorry, just the way VeRO works
DomDawes
<< Let me give you a similar example.>>
A medical company LEASED a book to the military which they inadvertently sold
to me.
It got yanked from eBay because the lease terms forbade reselling.
Similarly, if there was an insider comic art distribution as part of a coop ad
program or whatever involving signed agreements of any sort, a third party
usually does NOT have any reselling rights.>>
1) Thanks for offering the example to explain your concept to me. I understand
where you're coming from.
Sorry to have snapped at you earlier.
2) The document in question is a model/repro art sheet that was given out to
artists, licencees, etc for paste-up art (Some of them were used as letters
page headers or mailorder subscription ad graphics) and costume reference. It
has a copyright notice dated 1982, but NO notice about "limited distribution"
or "prohibited distribution".
Many were tossed out or given to neighborhood kids after the assignments were
completed. No one at DC or Warner Brothers ever asked for them back.
The art is not currently in use on any products or editorial material.
It was replaced by revised art in the mid-90s.
-D
bp
> So, according to you, we can't sell our old Superman or Batman comics
because
> DC/Warner holds the copyright on them and they were produced by DC
> Comics/Warner Brothers? (All produced by the given copyright owners!)
DC/Warner licensed these to be sold by the original seller and the courts'
interpretation of the law is that the buyer has an implied license to resell
them.
If I understand correctly, you were selling something that was never
licensed to be sold in the first place. My guess is that DC/Warner has
decided that no-one can ever sell this item anywhere.
Note that I am not saying that this is right or fair -- just that I think
this is what is happening.
>
> We can't sell original art used to produce the comics?
> (Considering eBay has several hundred DC Comics original art auctions
going at
> any given time, that seems irrational and silly. (And all produced by the
given
> copyright owners!))
The fact that others get away with it doesn't mean they're legally in the
clear (e.g. not everyone who speeds gets a speeding ticket). And the
copyright holder is not required to be fair or consistent in their
application of their rights. Maybe the item you had is of special concern to
them. Maybe it was just random that they came down on your auction. Maybe
they just go after user ID's that begin with the letter D?
> We can't sell our videos (which we bought at Tower Records) of Batman?
They
> were produced by Warner Brothers/DC Comics! (All produced by the given
> copyright owners!)
See above re: implied license. You cannot sell anything protected by
copyright without license from the copyright holder. You do have license to
resell your used videos. For reselling co-op art, if you don't have a
license in writing, you don't have a license to sell it (yes, lots of people
get away with it and yes it isn't fair when they end your auction but not
others)
You and I can have a long discussion about whether that makes sense or
not -- but even if you convince me that it does not make sense, it wouldn't
mean that this is not the way it is.
> You either don't know trademark law or you work for Warner's legal
department.
> (which could also mean you know nothing about trademark law.)
:-)
Trademark is something different. For trademarks Warner would be required to
apply the same standard to all the other auctions on eBay -- if they didn't
object to one type of use of their trademark, they would lose the right to
object to that use.
For copyright, they lose no rights by not enforcing it. They can be
completely arbitrary. They could let everyone else in the world sell this
item but not you. They could nail you for the 100th time you sold such an
item, even though they knew about the previous 99 sales and did nothing.
Again, I'm not saying this is fair -- just that this is the way it is.
Jill Morgan
>
>If I understand correctly, you were selling something that was never
>licensed to be sold in the first place. My guess is that DC/Warner has
>decided that no-one can ever sell this item anywhere.
>
>Note that I am not saying that this is right or fair -- just that I think
>this is what is happening.
>
>>
>The fact that others get away with it doesn't mean they're legally in the
As someone who worked in advertising for awhile and quite often used
clipart provided car manufacturers, ad agencies, etc. you did not have
the right to own the art. You had the right to use it in advertising
you produced of their products, but the ownership of the art itself
belonged to either the ad agency, general motors, etc. The paper I
worked for did not have the right to the art itself, only the right to
reproduce it in its newspaper ads, and only in ads for that company.
Jill Morgan
DomDawes
> We can't sell our videos (which we bought at Tower Records) of Batman? They
were produced by Warner Brothers/DC Comics! (All produced by the given
copyright owners!)<
bp sez...
>See above re: implied license. You cannot sell anything protected by copyright
without license from the copyright holder. You do have license to resell your
used videos.<
According to the above you stated, I don't. The videos ARE protected by
copyright in Warner Brothers' name. What I COULDN'T do is duplicate them and
sell duplicate tapes.
Same with the art.
I wouldn't sell copies of the sheets, just the originals.
bp continues...
<For reselling co-op art, if you don't have a license in writing, you don't
have a license to sell it (yes, lots of people get away with it and yes it
isn't fair when they end your auction but not others)>
It's not co-op art. It's paste-up art that's used for a variety of purposes.
Letters page heads, filler art if an ad doesn't come thru, etc.
bp continues...
>Trademark is something different. For trademarks Warner would be required to
apply the same standard to all the other auctions on eBay -- if they didn't
object to one type of use of their trademark, they would lose the right to
object to that use.<
Which Warner didn't do. While I was selling the old proof sheets, another
seller was selling a cd-rom of CURRENT DC Comics licensing art!
farme...@yahoo.com sez...
<As someone who worked in advertising for awhile and quite often used clipart
provided car manufacturers, ad agencies, etc. you did not have the right to own
the art. You had the right to use it in advertising
you produced of their products, but the ownership of the art itself belonged to
either the ad agency, general motors, etc. The paper I worked for did not have
the right to the art itself, only the right to reproduce it in its newspaper
ads, and only in ads for that company.>
I'm not selling rights to art.
Just the physical art itself (which was discarded) as a collectible, much as
expired stock certificates are sold as art. They're worthless as stock, but
they look cool.
-D
bp
> According to the above you stated, I don't. The videos ARE protected by
> copyright in Warner Brothers' name.
Correct. So to sell the video one needs license from Warner Brothers. The
long-standing precedent says that when you buy a licensed video, you also
buy the license to resell the video.
> What I COULDN'T do is duplicate them and
> sell duplicate tapes.
That is one thing that you could not do.
> Same with the art.
> I wouldn't sell copies of the sheets, just the originals.
But the reason you can resell the video does not apply here. Nothing gives
you license to sell. Especially if Warner never gave anyone license to sell
these in the first place. Copy or original is irrelevant. Copyright material
can only be distributed with license.
> bp continues...
> >Trademark is something different. For trademarks Warner would be required
to
> apply the same standard to all the other auctions on eBay -- if they
didn't
> object to one type of use of their trademark, they would lose the right to
> object to that use.<
>
> Which Warner didn't do. While I was selling the old proof sheets, another
> seller was selling a cd-rom of CURRENT DC Comics licensing art!
Right. This was my point. This is not a trademark issue, this is a copyright
issue. They do not need to be consistent for copyright the way they do for
trademark. I went on to say:
>> For copyright, they lose no rights by not enforcing it. They can be
>> completely arbitrary. They could let everyone else in the world sell this
>> item but not you. They could nail you for the 100th time you sold such an
>> item, even though they knew about the previous 99 sales and did nothing.
In response to Jill, you write:
> I'm not selling rights to art.
> Just the physical art itself (which was discarded) as a collectible, much
as
> expired stock certificates are sold as art. They're worthless as stock,
but
> they look cool.
Jill's point is that when Warner sends such stuff out, they explicitly
withhold the right to sell the item. It was given out with a license to use
only in certain very specific situations.
Jill Morgan
>farme...@yahoo.com sez...
><As someone who worked in advertising for awhile and quite often used clipart
>provided car manufacturers, ad agencies, etc. you did not have the right to own
>the art. You had the right to use it in advertising
>you produced of their products, but the ownership of the art itself belonged to
>either the ad agency, general motors, etc. The paper I worked for did not have
>the right to the art itself, only the right to reproduce it in its newspaper
>ads, and only in ads for that company.>
>
>I'm not selling rights to art.
>Just the physical art itself (which was discarded) as a collectible, much as
>expired stock certificates are sold as art. They're worthless as stock, but
>they look cool.
>
>-D
But you see the physical art is owned by Warners, same as the art I
used at the newspaper was owned by General Motors. They just supplied
it to be used in their advertisements. But they could have asked for
it back at anytime, as they owned the physical art. The paper only had
permission to put the art in the ads. We couldn't use it anywhere else
either. Just in their ads.
Jill
DomDawes
>According to the above you stated, I don't. The videos ARE protected by
copyright in Warner Brothers' name.
b...@bidpanel.com sez...
>Correct. So to sell the video one needs license from Warner Brothers. The
long-standing precedent says that when you buy a licensed video, you also buy
the license to resell the video.<
What "long-standing precident" is this?
There's nothing on a sales receipt that states the buyer can resell the video!
If it's common law, that you can resell that which you own, then there's
nothing that says I can't resell the art. Possession is 9/10ths of the law...
DomDawes continues...
> I wouldn't sell copies of the sheets, just the originals.
b...@bidpanel.com sez...
<But the reason you can resell the video does not apply here. Nothing gives you
license to sell. Especially if Warner never gave anyone license to sell these
in the first place. Copy or original is irrelevant. Copyright material can only
be distributed with license.>
Err, not quite.
Copyright means "right to copy". Copyright in no way relates to physical
possession of art.
In fact, both DC & Marvel have stated so to avoid paying sales tax on art.
They have stated that they only purchase reproduction rights to artwork, not
the physical artwork! The art is returned to the artist to disburse as he/she
sees fit. When the artist sells/gives away/distributes the physical art, he/she
DOES NOT grant copyright to the new posessor, only physical custody!
There's nothing in copyright law that prevents me from selling original
physical art (as long as it's not stolen, which this is not).
> bp continues...
> >Trademark is something different. For trademarks Warner would be required to
apply the same standard to all the other auctions on eBay -- if they didn't
object to one type of use of their trademark, they would lose the right to
> object to that use.<
EBay has said that since this is a trademark stuation, they aren't required to
allow me to file a Counter-Notice request...
Quote from eBay...
>>>We can certainly understand your desire to file a Counter-Notice regarding
the removal of your listings. Unfortunately, it appears that your listings may
have been removed due to trademark issues. Please
understand, the Counter-Notice procedures are copyright specific, as such,
filing a Counter-Notice would not be appropriate in this situation.<<<
DomDawes continues...
>While I was selling the old proof sheets, another seller was selling a cd-rom
of CURRENT DC Comics licensing art!<
b...@bidpanel.com sez...
Right. This was my point. This is not a trademark issue, this is a copyright
issue. They do not need to be consistent for copyright the way they do for
trademark. I went on to say:
For copyright, they lose no rights by not enforcing it. They can be completely
arbitrary. They could let everyone else in the world sell this item but not
you. They could nail you for the 100th time you sold such an item, even though
they knew about the previous 99 sales and did nothing.<<
See above, good sir.
DomDawes sez...
> I'm not selling rights to art.
> Just the physical art itself (which was discarded) as a collectible, much as
expired stock certificates are sold as art. They're worthless as stock, but
they look cool.
b...@bidpanel.com sez...
>Jill's point is that when Warner sends such stuff out, they explicitly
withhold the right to sell the item. It was given out with a license to use
only in certain very specific situations.<
If there was a notice on the art (as there is on Emmy and Oscar screeners) then
your point would be valid.
There's no notice as such on the art, only a DC Comics copyright.
They can't enforce a notice that ain't there.
-D
DomDawes
<As someone who worked in advertising for awhile and quite often used clipart
provided car manufacturers, ad agencies, etc. you did not have the right to own
the art. You had the right to use it in advertising you produced of their
products, but the ownership of the art itself belonged to either the ad agency,
general motors, etc. The paper I worked for did not have the right to the art
itself, only the right to reproduce it in its newspaper ads, and only in ads
for that company.>
DomDawes sez...
>I'm not selling rights to art.
Just the physical art itself (which was discarded) as a collectible, much as
expired stock certificates are sold as art. They're worthless as stock, but
they look cool.
farme...@yahoo.com sez...
But you see the physical art is owned by Warners, same as the art I used at the
newspaper was owned by General Motors. They just supplied it to be used in
their advertisements. But they could have asked for
it back at anytime, as they owned the physical art. The paper only had
permission to put the art in the ads. We couldn't use it anywhere else either.
Just in their ads.<
1) What happened to the art after you used it in the ads? It was discarded. So
was this material. You've never dumpster-dived?
2) Did General Motors ask for the remaining art back? If they didn't, what did
you do with it? Threw it out, most likely.
3) Was there a notice on the art that it had to be returned to General Motors
after use? There was NO such notice on this art, only a DC Comics copyright.
-D
Jill Morgan
>farme...@yahoo.com sez...
>But you see the physical art is owned by Warners, same as the art I used at the
>newspaper was owned by General Motors. They just supplied it to be used in
>their advertisements. But they could have asked for
>it back at anytime, as they owned the physical art. The paper only had
>permission to put the art in the ads. We couldn't use it anywhere else either.
>Just in their ads.<
>
>1) What happened to the art after you used it in the ads? It was discarded. So
>was this material. You've never dumpster-dived?
>2) Did General Motors ask for the remaining art back? If they didn't, what did
>you do with it? Threw it out, most likely.
>3) Was there a notice on the art that it had to be returned to General Motors
>after use? There was NO such notice on this art, only a DC Comics copyright.
>
>-D
It doesn't matter what I did with it. I don't have the right to sell
it even if Generla Motors themselves threw it in their dumpsters. It
is owned by them. Just cause something is in someone's garbage or
dumpster doesn't give anyone else the legal right to take it.
No, they never wanted it back, but I'll bet if I tried to sell it to
someone, I would get in trouble. It is their creative ownership as
well as they paid to have the artwork designed, made, printed and
shipped to me. I paid nothing.
I am only talking about a legal point here. If they want to give you a
hard time, legally they can. You didn't legally purchase that artwork,
as it was never available for purchase to anyone.
Just a legal point, not a practical one.
And for people like Warners, where the art is who they are, as opposed
to line drawings of cars that I used, it is probably a bigger issue
for them.
So legally they can shut down your auction, even if they missed all
the others. And once you were flagged, I am sure they kept an eye on
you and that is why they keep nabbing you and you ended up suspended.
So you won't win with ebay or Warner's, no matter how many emails you
send.
Let's say you take a picture of an item for your auction. You are
finished with it and another person wants to borrow it as they are
selling the same item. And you say okay.
Then they sell the picture to someone for a profit. Do you see my
point? You only provided the picture for them to use in a commercial
promotioin. Even though you were finished with the picture yourself,
they had no right to sell the picture or even loan the picture to
someone else without your expressed written permission.
Jill
bp
> b...@bidpanel.com sez...
> >Correct. So to sell the video one needs license from Warner Brothers. The
> long-standing precedent says that when you buy a licensed video, you also
buy
> the license to resell the video.<
>
> What "long-standing precident" is this?
> There's nothing on a sales receipt that states the buyer can resell the
video!
For almost as long as there has been copyright law, the courts have had this
interpretation (e.g. for books)
> If it's common law, that you can resell that which you own, then there's
> nothing that says I can't resell the art. Possession is 9/10ths of the
law...
Posession or ownership of the physical object has nothing to do with
copyright
> Copyright means "right to copy". Copyright in no way relates to physical
> possession of art.
Copyright means the right to distribute the work in question (even an
original). You are correct that it does not apply to physical possession.
No-one is going to come take it away from you -- they're just telling you
that you can't sell it.
> In fact, both DC & Marvel have stated so to avoid paying sales tax on art.
> They have stated that they only purchase reproduction rights to artwork,
not
> the physical artwork! The art is returned to the artist to disburse as
he/she
> sees fit. When the artist sells/gives away/distributes the physical art,
he/she
> DOES NOT grant copyright to the new posessor, only physical custody!
Exactly. Which means that the new posessor does not have the right to
distribute the work unless the holder of the copyright has granted them
license to do so. The possessor may argue that the way in which the work was
given to them implied that they were being given such a license (e.g. when I
buy a painting from an artist) -- someone who found the work discarded does
not have such an argument available to them.
> There's nothing in copyright law that prevents me from selling original
> physical art (as long as it's not stolen, which this is not).
This is where we disagree. Copyright law is exactly about preventing you
from selling art (original or copy is not relevant).
Again, I am sure you disagree and can put forward many arguments against
what I've said. However, I think you will agree that the interpretation I am
giving here seems to be the one used by Warner and eBay. I think you would
find that it would also be the interpretation of the courts if you were to
take the matter there.
Deborah Stevenson,,,
>DomDawes wrote
>> b...@bidpanel.com sez...
>> >Correct. So to sell the video one needs license from Warner Brothers. The
>> long-standing precedent says that when you buy a licensed video, you also
>buy
>> the license to resell the video.<
>>
>> What "long-standing precident" is this?
>> There's nothing on a sales receipt that states the buyer can resell the
>video!
>For almost as long as there has been copyright law, the courts have had this
>interpretation (e.g. for books)
And if you look at laws on video and music, you can see also that, as you
were saying, it's not a given that license to resell is included whenver
you acquire something. I was trying to find the Wherehouse kerfuffle from
a few years ago, when musicians were arguing that they weren't allowed to
resell without providing the original musicians with some of the profits,
because it touched on these matters--I haven't turned up a discussion yet,
though.
Dom seems to be going on the theory that if s/he knew about no
restrictions when the item was acquired, s/he's free to sell it, just not
reproduce it. Unfortunately, it doesn't work that way. If I buy
something on eBay without knowing it's an unlicensed release in the US and
then put it up for auction myself, I don't have any more rights in a VeRO
complaint than if I had deliberately made a bootleg copy. It doesn't make
any difference that I'm not talking about copying the original item--that
specific item isn't licensed for sale.
Deborah Stevenson
(stev...@alexia.lis.uiuc.edu)
DomDawes
>Correct. So to sell the video one needs license from Warner Brothers. The
long-standing precedent says that when you buy a licensed video, you also
buy the license to resell the video.<
DomDawes asks...
> What "long-standing precident" is this?
There's nothing on a sales receipt that states the buyer can resell the video!
b...@bidpanel.com sez...
For almost as long as there has been copyright law, the courts have had this
interpretation (e.g. for books)<
Ah, common law. then.
b...@bidpanel.com sez...
> If it's common law, that you can resell that which you own, then there's
nothing that says I can't resell the art. Possession is 9/10ths of the law...<
b...@bidpanel.com sez...
>Posession or ownership of the physical object has nothing to do with
copyright<
Exactly!
Bingo!
And transfer of posession or ownership of the physical object has nothing to do
with copyright!
Correct, sir!
DomDawes sez...
> Copyright means "right to copy". Copyright in no way relates to physical
possession of art.<
b...@bidpanel.com sez...
>Copyright means the right to distribute the work in question (even an
original). You are correct that it does not apply to physical possession.<
You contradict yourself, sir. First you say that copyright means the right to
distribute the original, then you say it does not apply to physical possession
of the original including distribution. Make up your mind.
DomDawes continues...
> In fact, both DC & Marvel have stated so to avoid paying sales tax on art.
They have stated that they only purchase reproduction rights to artwork, not
the physical artwork! The art is returned to the artist to disburse as he/she
sees fit. When the artist sells/gives away/distributes the physical art, he/she
DOES NOT grant copyright to the new posessor, only physical custody!<
b...@bidpanel.com sez...
>Exactly. Which means that the new posessor does not have the right to
distribute the work unless the holder of the copyright has granted them license
to do so.<
The present possessor CANNOT make copies of the original art and sell them.
He CAN resell the original art as he chooses.
Look at all the third party resale of original art on eBay! There's a category
just for it!
And, as I pointed out earlier, DC & MArvel do not lay claim to any of the
physical art (only reproduction rights) or they'd have to pay sales tax on it!
b...@bidpanel.com sez...
>The possessor may argue that the way in which the work was given to them
implied that they were being given such a license (e.g. when I buy a painting
from an artist) -- someone who found the work discarded does
not have such an argument available to them.<
So, if you buy a painting from an artist, you need his permission to resell it
at a garage sale?
NO!
You'd need his permission to reproduce it on a book cover or in a magazine.
But if you wanted to sell it, or donate it, or wrap fish in it, it's your
option. No permission required.
DomDawes sez...
> There's nothing in copyright law that prevents me from selling original
physical art (as long as it's not stolen, which this is not).<
b...@bidpanel.com sez...
<This is where we disagree. Copyright law is exactly about preventing you from
selling art (original or copy is not relevant).<
Again, copyright law involves duplication and illegal publication of material,
not ownership of original art. I spent three years as Assistant to the
Licensing Director of a comic book publisher. Did the contracts, dealt with the
Patent Office for trademarks, and the Library of Congress for copyrights. Also
handled licensing sheets and their distribution.
My thanks for a lively discussion.
-D
DomDawes
>But you see the physical art is owned by Warners, same as the art I used at
the newspaper was owned by General Motors. They just supplied it to be used in
their advertisements. But they could have asked for it back at anytime, as they
owned the physical art. The paper only had permission to put the art in the
ads. We couldn't use it anywhere else either.
Just in their ads.<
DomDawes asks...
>1) What happened to the art after you used it in the ads? It was discarded. So
was this material. You've never dumpster-dived?
2) Did General Motors ask for the remaining art back? If they didn't, what did
you do with it? Threw it out, most likely.
3) Was there a notice on the art that it had to be returned to General Motors
after use? There was NO such notice on this art, only a DC Comics copyright.
farme...@yahoo.com sez...
>It doesn't matter what I did with it. I don't have the right to sell it even
if Generla Motors themselves threw it in their dumpsters. It is owned by them.
Just cause something is in someone's garbage or
dumpster doesn't give anyone else the legal right to take it.<
According to the courts, it does.
That's why police don't need a search warrant to go thru your garbage, as they
do to search your house or car. Anything in the garbage/dumpster is legally
considered "abandoned".
farme...@yahoo.com sez...
>Let's say you take a picture of an item for your auction. You are finished
with it and another person wants to borrow it as they are selling the same
item. And you say okay.<
If they're selling the "same item" it still may be different from mine in terms
of condition. Allowing them to use my pic would be fraud.
farme...@yahoo.com sez...
>Then they sell the picture to someone for a profit. Do you see my point? You
only provided the picture for them to use in a commercial promotioin. Even
though you were finished with the picture yourself,
they had no right to sell the picture or even loan the picture to someone else
without your expressed written permission.<
Actually, if I did sell or give them the pic, they could do as they pleased as
long as they didn't publish the pic wthout permission.
That's what copyright is about.
Good try, though.
-D
DomDawes
>Correct. So to sell the video one needs license from Warner Brothers. The
long-standing precedent says that when you buy a licensed video, you also buy
the license to resell the video.<
DomDawes sez...
>What "long-standing precident" is this?
There's nothing on a sales receipt that states the buyer can resell the video!<
b...@bidpanel.com sez...
>For almost as long as there has been copyright law, the courts have had this
interpretation (e.g. for books)<
stev...@alexia.lis.uiuc.edu sez...
And if you look at laws on video and music, you can see also that, as you were
saying, it's not a given that license to resell is included whenver you acquire
something. I was trying to find the Wherehouse kerfuffle from a few years ago,
when musicians were arguing that they weren't allowed to resell without
providing the original musicians with some of the profits, because it touched
on these matters--I haven't turned up a discussion yet, though.
Dom seems to be going on the theory that if s/he knew about no restrictions
when the item was acquired, s/he's free to sell it, just not reproduce it.
Unfortunately, it doesn't work that way. If I buy
something on eBay without knowing it's an unlicensed release in the US and then
put it up for auction myself, I don't have any more rights in a VeRO complaint
than if I had deliberately made a bootleg copy. It doesn't make any difference
that I'm not talking about copying the original item--that specific item isn't
licensed for sale.<
The concept only applies if the "unlicensed release" duplicates a licensed
release in the US.
If the property is unavailable thru US distribution, than it's not a copyright
conflict.
I can't sell a British edition of a Stephen King book available in the US from
a US publisher.
I CAN sell a British edition of a Stephen King book UNAVAILABLE from any
American publisher, since it doen't conflict with any American publisher's
copyright.
But, this is getting away from the question at hand, sale of original
art/limited ed proofs which don't exist in other forms.
-D
Deborah Stevenson,,,
>b...@bidpanel.com sez...
>>Correct. So to sell the video one needs license from Warner Brothers. The
>long-standing precedent says that when you buy a licensed video, you also
>buy the license to resell the video.<
>DomDawes asks...
>> What "long-standing precident" is this?
>There's nothing on a sales receipt that states the buyer can resell the video!
>b...@bidpanel.com sez...
>For almost as long as there has been copyright law, the courts have had this
>interpretation (e.g. for books)<
>Ah, common law. then.
No. Case law. Some of which goes back a ways. I actually don't think
you're using "common law" in the way the law does, either, since you seem
to be using it as "things people generally do" or "things that would make
sense" :-). What you're saying is perfectly sensible. It's just not how
the law works, as you've found.
>Exactly!
>Bingo!
>And transfer of posession or ownership of the physical object has nothing to do
>with copyright!
>Correct, sir!
That's not what bp meant, which is why you're wrong.
You may possess the physical object of DVD released under a license in
Hong Kong, but that doesn't mean you have the license to sell it in the
US.
You're running into a similar situation, wherein your possession of the
physical object doesn't translate into the right to sell it.
Basically, you're confusing things that logically are separate. Often
merchandise comes with an implicit license to resell. Often people
without any such license resell unlicensed items and get away with it.
You're confusing that with a universal right to resell. But neither eBay
nor Warner Brothers is.
Deborah Stevenson
(stev...@alexia.lis.uiuc.edu)
Deborah Stevenson,,,
>Just cause something is in someone's garbage or
>dumpster doesn't give anyone else the legal right to take it.<
>According to the courts, it does.
Dom, this simply isn't true. Law over dumpster/garbage rights varies
from place to place, so while it's legal some places, it's not others.
Deborah Stevenson
(stev...@alexia.lis.uiuc.edu)
Deborah Stevenson,,,
That is, to put it mildly, a new one on me. What's your legal citation to
support this contention?
Deborah Stevenson
(stev...@alexia.lis.uiuc.edu)
Jill Morgan
>
>farme...@yahoo.com sez...
>>Then they sell the picture to someone for a profit. Do you see my point? You
>only provided the picture for them to use in a commercial promotioin. Even
>though you were finished with the picture yourself,
>they had no right to sell the picture or even loan the picture to someone else
>without your expressed written permission.<
>
>Actually, if I did sell or give them the pic, they could do as they pleased as
>long as they didn't publish the pic wthout permission.
>That's what copyright is about.
>
>Good try, though.
>
>-D
Lets change this to something more related to this.
Let us say you sell IBM computers. You have a license to sell the
computers for IBM. You want to do some advertising so IBM provides you
with artwork and photos of their products to put in your ads. (Same as
Warners was doing with the clipart). Just because you have the right
to sell the computers, does not mean you can sell the artwork provided
for your advertising. The art is still the property of IBM. If you
lost your contract to sell IBM computers, then legally you must give
them their art back. Your agreement with IBM is to sell their
computers, not their art. You don't have the right to give it away, it
isn't yours to give away.
So you go out of the computer business. Go broke. The art gets thrown
in the dumpster. Someone is dumpster diving. They find the art. They
may keep the art (mostly because no one knows they have it), but may
not resell it. Officially, the artwork should have been returned to
IBM and it should be their decision whether or not to throw it out or
let it be sold. It physically belongs to them. Just because the store
owner didn't return it, doesn't make it any less IBM's artwork. We are
talking a legal point here, not what IBM would actually do or anyone
else.
I feel like I am beating my head against the wall.
I am not against you. Legally the law is on warner's side, and that is
it. They own the clipart, not the lisencee they originally gave it to.
You did not legally purchase this item from a someone who had a
license to sell it. As it was not a item for sale. Simply artwork
provided to lisencees to promote their warner products. The art was
never for sale and never the actual legal property of the lisencee,
That is about it.
I don't know how more plain I can make it.
In the example of your picture. If you loaned it and they put it on
auction on ebay, you would have the right to vero their auction.
Whether you would or not wouldn't matter, you would have the right to.
Jill
Fred A. Murphy
On 18-Feb-2003, domd...@aol.com (DomDawes) wrote:
> What "long-standing precident" is this?
> There's nothing on a sales receipt that states the buyer can resell the
> video!
> If it's common law, that you can resell that which you own, then there's
> nothing that says I can't resell the art. Possession is 9/10ths of the
> law...
Look, it's real simple. If you think you know what you're talking about,
rather than arguing with everyone here, why don't you get an attorney and
sue the hell out of ebaY and Warner Brothers for lost profits, mental
anguish, ingrown toenails, etc.
The bottom line is you can bitch and moan all you want here, and whether
you're dead right or dead wrong, you'll be just plain dead long before it
changes anything regarding WB or ebaY. Right or wrong, ebaY has a real
simple solution--PLONK.
I suggest you get a completely different ebaY ID with new name, address,
credit cards, and ISP, lay low, and sell your artwork at a comic book show
or someplace other than ebaY.
--
Sevareid's Law:
"The chief cause of problems is solutions."
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Don Lancaster
Again, the outcome is not the least in doubt.
A Smith and Wesson beats four aces.
Deborah Stevenson,,,
>Again, the outcome is not the least in doubt.
>A Smith and Wesson beats four aces.
Or more accurately (and closer to Fred's very accurate post), he who has
the gold makes the rules.
Deborah Stevenson
(stev...@alexia.lis.uiuc.edu)
DomDawes
me nowhere).
Reasonable fellow, once we managed to communicate.
He expressed his point of view.
I expressed mine.
After the usual snarls, grunts, and whipping out of yardsticks, we reached an
accord.
He has contacted VeRO to reinstate me (Also sent e-mail to them to follow-up
and cc'd me on it.)
I have faxed and filed to be reinstated by eBay.
With the usual 48-hour turnaround for eBay e-mail, I should be back on eBay by
the weekend.
Thanks to all who participated. The discussion came in handy when several
similar points came up in my negotiations.
-D
Mac McDougald
domd...@aol.com says...
So what was the accord?
That you do it their way, and don't sell that stuff anymore?
Mac
DomDawes
>Just cause something is in someone's garbage or dumpster doesn't give anyone
else the legal right to take it.<
DomDawes sez...
>According to the courts, it does.<
stev...@alexia.lis.uiuc.edu sez...
>Dom, this simply isn't true. Law over dumpster/garbage rights varies from
place to place, so while it's legal some places, it's not others.<
Here in NYC (When the snow doesn't cover them as it does now) dumpster/garbage
can contents are considered "abandoned". (Trespassing to get to them if they're
not on the street is another matter! ;-) )
-D
Bunny
>
>The art is not currently in use on any products or editorial material.
>It was replaced by revised art in the mid-90s.
being out of fashion is not relevent.
it still is theis's.
Bunny
>
>
>Here in NYC (When the snow doesn't cover them as it does now) dumpster/garbage
>can contents are considered "abandoned". (Trespassing to get to them if they're
>not on the street is another matter! ;-) )
Here is Australia we can't. The dumpster and the stuff inside are
considered the property of the city council.
You see, it varies. In fact, you can talk and talk as if you have any
right in the first place, until the cows all start walking on 2 legs,
and Jesus comes for the 2nd.. and 3rd time, but it won't change
anything. You are NARU. You have no standing.