Copyright law! Non-profit status! Videogames!
[Full disclosure. Tamara “CowKitty” Gray Smith,the artist in question here, is someone I’ve known online for almost a year. She volunteered to help with background art on an episode of Teenage Pokemon. We’ve never met in person.]
What started as an arguably small request has blown up into something much larger than anyone involved likely expected. According to her personal blog, artist Tamara “Cowkitty” Gray recently noticed that video artist Anita Sarkeesian had used some fan art she created of Princess Daphne (Dragon’s Lair) in her Kickstarter campaign from a couple of years ago and subsequent promotional materials. It appeared that Anita had removed the artist’s signature in order to make it fit into a larger collage. It’s presumed that she thought it was official artwork from the developers of Dragon’s Lair.
Tamara reportedly asked Anita to remove the artwork from her website and to cease using it for any other purposes. Anita reportedly stated that she was in her legal rights to use Tamara’s artwork as it was “transformative in nature” and therefore constitutes fair use. Tamara disagreed, and lawyers are now reportedly involved.
It seems like there is a lot more at stake here than some fan art of Princess Daphne.
For Tamara, this is not about money. It’s about character, and the character of the people who are making use of her artwork. She’s made it clear that she doesn’t want any financial reimbursement from Feminist Frequency. It seems that she just doesn’t want to be taken advantage of. She’s shared more than once that one of her primary concerns regarding the whole situation is that she “does not want to be a jerk.”
That’s part of why Tamara agreed to allow Anita to use her art if it’s for non-profit work. So far, Tamara seems to be unconvinced that Feminist Frequency is the non-profit enterprise it’s claimed to be. She’s asked Anita for proof that her organization is legally a non-profit (specifically, for proof of 501(3) status),but so far, nothing has materialized. Game developer Devi Ever has compiled information that she believes indicates that Feminist Frequency is registered as a for-profit company, though Destructoid hasn’t substantiated any of that information as of this writing. [Edit: It looks like Devi Ever has removed the information she had gathered and has added a colorful piece of advice for Destructoid readers in its place. Sorry folks!]
Regardless of Feminist Frequency’s status as a non-profit, Tamara may not have any sort of legal case at all here. Copyright law around fan art is extremely murky. It was written long before “fan art” ever existed as we know it today. Having those laws updated to better fit with an internet-ready world doesn’t seem to be a big priority of the U.S. court system. I also don’t think that anyone here thinks Anita was trying to pass off this artwork as something she created or was trying to take credit for. That’s not what’s in question here.
What’s at stake here is the ethical question — is it OK to take someone else’s fan art and use it to publicly devalue the subject of said artwork?To use someone else’s image (be it a reproduction of their physical image or an image they created from their minds) for your own uses, against their will, feels exploitative and dehumanizing, regardless if it’s “legal” or not. In my earlier years at Destructoid, I hadn’t learned this, but it only took a few posts featuring uncredited fan art before I realized that what I was doing had done some real emotional harm to some.
What’s really puzzling to me is why Feminist Frequency wouldn’t save themselves the PR headache and offer a statement to Tamara asking if they can work something out. Maybe they can’t remove the artwork from the Kickstarter because it’s against Kickstarter’s policies, or maybe they need some time to remake all their promotional materials before they can drop all of Tamara’s art. Maybe Anita is afraid that if she dropped Tamara’s artwork, that would set a precedent for all of the artwork and images that she’s used in her videos to be pulled (something that more and more Youtube content creators need to be careful about.)
Maybe Tamara would have understood that. Maybe even a simple apology would have done the trick. None of that happened though. Instead, there’s talk of lawyers and copyright laws and validation of non-profit status and all sorts of other ugliness. It’s not nice, but it makes sense. An artist can’t stand by while they lose power over their artwork, and a critic has to stand by their efforts to criticize.Tamara has dedicated her professional life to creating art, just as Anita has dedicated her professional life to critiquing the art of others. Most all artists and critics are looking for is to be heard. Sometimes their voices get in the way of each other. It seems like in this case, it would be easier for one of those voices to change their voice ever so slightly to accommodate them both.
Of course, the legions of people who are always looking for an opportunity to decry the worth of Anita Sarkesian and her work are jumping all over this. They’re taking it as a sign that she was a “scam” all along, that she was never a non-profit, and therefore the ideas presented in her videos are invalid? It smacks a bit of the “birth-er” movement that was so popular with Barack Obama’s critics a few years back — a desperate attempt to discredit a threat in order to diminish their influence over a larger landscape.
None of that seems to be of concern to Tamara’s though. She’s not interested in commenting on Anita’s work. She’s an artist, not a critic. I hope people take her words to heart when she says “This is NOT a feminist issue. The specific issue that I have is a creator rights’ issue regarding Fair Use/copyright using internet sources along with journalistic ethics. Don’t cross the streams, folks.”