Know Your Rights
Can I Create and Publish My Own Subversive Wordle? + More Artists’-Rights Questions, Answered
Plus, does my ex have any right to TikTok videos of our cat? And who's right in the debate between a Virginia museum and Congolese sculptors?
Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work.
Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article.
I’m a hacker, artist, and activist thinking of making my own version of Wordle that only allows you to guess words associated with Russian/Soviet atrocities (e.g. “Stasi,” “Putin”). Could The New York Times sue me?
Well, you’re a modern day Rosie the Riveter, aren’t you? You should be fine. The names of games, and their branding, can be covered by trademark, but games themselves are not really covered by copyright, or any other form of intellectual property law. Those are written to protect the creator, whereas so much of the experience of games relies on the player.
“Games seem to straddle the boundaries between copyright and patent, between author, performer, and reader, and between protected and unprotected material,” Bruce Boyden writes in his 2011 paper “Games and Other Uncopyrightable Systems.” “Games are an entertainment medium on par with such copyrightable material as music, films, or novels. But games are also comprised of rules and instructions, like uncopyrightable recipes and patentable procedures.”
You can tell that games aren’t protected in this way because of how similar they often are. Othello is a knock-off of Reversi, Bridge is a knock-off of an earlier card game called Whist, and you may remember a popular app from earlier this century called Words With Friends that was basically just Scrabble. Many have pointed out that Wordle is itself a version of the TV show “Lingo,” and it already has plenty of imitators. Presumably, The New York Times shilled out seven figures because they believed their version would be the best, the same way their crosswords are the best, despite their not owning the concept of crosswords.
So, The New York Times didn’t buy the concept of Wordle, it just bought the marketing. A small distinction, but it should keep you out of the courtroom. Just make sure your version doesn’t come with those annoying color blocks that everyone posts on Twitter.
I’m fascinated by the politics surrounding this NFT made from a Congolese sculpture in the collection for the Virginia Museum of Fine Arts. I’m torn between wanting to support the plantation workers and the museum. Who is right here?
For those just tuning in, here is the recap: the Congolese Plantation Workers Art League (CATPC) collective, which was featured in an excellent 2017 exhibition at SculptureCenter in Queens, New York, has made an NFT in association with the artist Renzo Martens and German gallery KOW. The digital work features the image of a statue of a Belgian officer beheaded during a revolt in Congo in 1931. The sculpture is currently held in the collection of the Virginia Museum of Fine Arts. Experts believe that the totem was carved to represent Maximilien Balot’s angry spirit. It was purchased in 1972 near Lusanga by a CUNY professor, who donated it to the VMFA. The NFT’s value of 0.1 Ether is enough to buy one hectare of land in Lusanga.
The NFT debuted alongside Martens’ documentary that captures CATPC’s attempts to get the statue back to the Democratic Republic of the Congo on loan, which the museum has said it would like to do. In the meantime, the VMFA has denounced the NFT, telling The Guardian that the “image was lifted directly from the museum’s website without permission,” which “violates our open access policy and is unacceptable and unprofessional.” Martens has claimed fair use.
Let me say first that, unless an artist signed over their rights, a museum does not hold the copyright to the works in their collection. These are held by the artists for the duration of their lifetime, plus another 70 years, upon which time the work enters into the public domain where anyone can use it freely. As I am having trouble finding the entry for the statue on the museum’s website (understandably), I cannot say with certainty who the artist is and when they died. However, given that the work depicts an event that took place in 1931, it would be safe to assume that the IP still rests with the artist or their heirs, who could come forward and claim ownership of the copyright.
But if the VMFA had the statue photographed, then they would own that image. I would have advised the CATPC to try to find the people who own the copyright for the original statue. The IP holders might be able to provide them with access to images outside of the museum’s collection, and could have been financially cut into the project. There’s very little NFT case law at the moment, so I can’t say who’s in the right in this fight of CATPC vs VMFA, but I do know that I would have liked to see the maker of this statue, or their heirs, involved in this conversation.
I recently saw on Twitter that Dee Snider of Twisted Sister approved “We’re Not Gonna Take It” for use as the official anthem of the Ukrainian resistance. I understand that this was probably a spiritual gesture, but could someone actually have sued, had he not done that?
I would say that having your country invaded is a little bit worse than having the jerk from Animal House as your dad, but it’s clear the man’s heart is in the right place.
Let’s tease out the hypothetical a little more, and assume that Twisted Sister actually owns all the rights associated with that song, which these days isn’t a given. Song catalogs have become attractive targets for investment groups lately, with Neil Diamond being the latest to sell his for an undisclosed amount, though you have to assume it was in the nine-figure range, because even Sting made that. But let’s say they own everything and someone has strapped a speaker to an anti-tank trap in Kyiv so that Snider’s words—“This is our life, this is our song,” etc.—may bring comfort to the empty streets. If Snider heard about this, and if he hadn’t authorized it, would he have been able to sue?
No. No, of course not. For one thing, it’s hard to sue anyone for anything when money hasn’t changed hands. Moreover, I don’t even know whom you would sue, and thinking about that led me down a path that helped me understand why the singer Tweeted this in the first place.
See, “We’re Not Gonna Take It” is one of those songs that is often used in political contexts, as has been detailed in the “legacy in politics” section of its Wikipedia entry. Songs like these are often played at rallies for politicians, who don’t realize that songs played at arenas, and even those played in hotel ballrooms, have certain performance rights associated with them. If the artist whose song you’re playing doesn’t like your politics, he may choose to sue you or the venue. At the very least, you’ll look silly when he denounces you and everything you stand for, as in the case of Chris Christie and Bruce Springsteen.
In recent memory, “We’re Not Gonna Take It” has been associated with teachers strikes and reproductive rights, and Dee Snider has taken to Twitter to voice his opinion on these matters, and the degree to which he feels his song applies to them. This was a spiritual gesture of support, yes, but it was also the reaction of a man who has had to hear interpretations of his use of the word “it” applied to everything from high taxes to a Russian invasion. He just wanted to let us all know where he stands on this “it” personally.
I started filming my cat on TikTok and her popularity has really taken off, so much so that I was recently messaged by an ex, who says he came across the account organically. I don’t know who taught him the term “intellectual property,” but he said that he feels the cat “owns” the I.P. for the videos and, because he bought the cat with me, he has a right to any money generated from her fame. He’s insane, right?
First, allow me to congratulate you on your feline success. I am not on TikTok, but it’s my understanding that any hit that doesn’t involve lip syncing is a rare and special thing. That’s a credit to you as a filmmaker, because while your cat may be the star, you are the owner of these videos, especially when we consider them from an intellectual property standpoint.
Though they still want to license your content for money, TikTok feels a bit more generous than other social media networks in this regard. Their terms of service even state that users “still own the copyright” for material they post on the service, whereas Instagram’s will only go so far as to admit that they “do not claim ownership of your content.” But regardless of what our tech overlords say, it’s rare that a person taking a photo or video does not own the copyright for the resulting content. And it’s impossible for an animal to own copyright for anything at all!
Your ex’s claim in fact reminds me of another recent case that made a much better argument for animal ownership, that of Naruto et al v. David Slater. Naruto, you see, was a crested macaque who, along with his other monkey friends (et al), stole a camera owned by British nature photographer David Slater in Indonesia. The group proceeded to take a series of adorable selfies that Slater then published in a book. He was then sued by PETA for stealing Naruto’s alleged copyright.
The Ninth Circuit Federal Appeals Court confirmed that Naruto does not have the legal standing to claim copyright here, as he is an animal, but PETA certainly made a better case than your ex is making here, because at least Naruto took the photograph. Animals cannot claim copyright the same way animals don’t have likeness rights. Even if they take a better selfie than your ex does.
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