infringing copyright by giving away books?

[greatworth]

My daughter published a professional bi-lingual comic on Amazon, but we had to stop it as we thought we may be breaking copyright.

We are now going to start a Kickstarter.com campaign to raise money to pay for new illustrations.

The idea and text is hers, but the images were used from an online comic creator website.

So the question is, if we print and give books in return for a pledge on Kickstarter.com does this still infringe the commercial aspect described below? And if it doesn't do we need to credit the comic website with the copyright of the images?

We will ask for pledge on Kickstarter.com to cover the cost of printing the original book as well as covering part of the cost of hiring a new illustrator. We are intending to release the book anywhere in the world.

Would be grateful for anybody's help on this. Many thanks

I enclose the relevant parts of the T&Cs from the comic creator website.

"4.2 You acknowledge that Bitstrips and other Content Providers have intellectual property rights in their respective Content. Except as described in the Terms, such rights are not licensed or otherwise transferred by mere use of the Service. You accept full responsibility and liability for your use of any Content in violation of any such rights.

4.3 You may create Content using the Service. Subject to the Terms, you retain ownership of and all right to the Content that you create, including all copyright and other intellectual property rights.

4.6 Bitstrips makes available to its users certain proprietary tools, including, but not limited to, the Character Builder, Comic Builder, Scene Builder and Outfit Builder (collectively, "Bitstrips Tools"). Bitstrips may also create or provide Content, such as stock graphics, props, freely available characters, backgrounds and remixable graphics. So long as you comply with the Terms, you are granted a limited, revocable license to use Service, including the Bitstrips Tools, and to use such Content created or provided by Bitstrips. You do not have any right to use Bitstrips trade names or trade-marks, however, without express written permission of Bitstrips.

4.9 You may not use the Service or the Content for a commercial purpose without the consent of Bitstrips.

9. Jurisdiction
You agree that all matters relating to the use of the Service shall be governed, controlled, interpreted and defined by and under the laws of the Province of Ontario and the Federal laws of Canada applicable therein without giving effect to any principles of conflicts of laws. You also agree that any action at law or in equity arising out of or relating to these Terms or your use of the Service will be filed only in a court located in Toronto, Ontario, Canada and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for the purpose of any such action.

 

[justalayman]

Yes, that is a commercial purpose.

 

[Silverplum]

My daughter published a professional bi-lingual comic on Amazon, but we had to stop it as we thought we may be breaking copyright.

We are now going to start a Kickstarter.com campaign to raise money to pay for new illustrations.

The idea and text is hers, but the images were used from an online comic creator website.

So the question is, if we print and give books in return for a pledge on Kickstarter.com does this still infringe the commercial aspect described below? And if it doesn't do we need to credit the comic website with the copyright of the images?

We will ask for pledge on Kickstarter.com to cover the cost of printing the original book as well as covering part of the cost of hiring a new illustrator. We are intending to release the book anywhere in the world.

Would be grateful for anybody's help on this. Many thanks

I enclose the relevant parts of the T&Cs from the comic creator website.

"4.2 You acknowledge that Bitstrips and other Content Providers have intellectual property rights in their respective Content. Except as described in the Terms, such rights are not licensed or otherwise transferred by mere use of the Service. You accept full responsibility and liability for your use of any Content in violation of any such rights.

4.3 You may create Content using the Service. Subject to the Terms, you retain ownership of and all right to the Content that you create, including all copyright and other intellectual property rights.

4.6 Bitstrips makes available to its users certain proprietary tools, including, but not limited to, the Character Builder, Comic Builder, Scene Builder and Outfit Builder (collectively, "Bitstrips Tools"). Bitstrips may also create or provide Content, such as stock graphics, props, freely available characters, backgrounds and remixable graphics. So long as you comply with the Terms, you are granted a limited, revocable license to use Service, including the Bitstrips Tools, and to use such Content created or provided by Bitstrips. You do not have any right to use Bitstrips trade names or trade-marks, however, without express written permission of Bitstrips.

4.9 You may not use the Service or the Content for a commercial purpose without the consent of Bitstrips.

9. Jurisdiction
You agree that all matters relating to the use of the Service shall be governed, controlled, interpreted and defined by and under the laws of the Province of Ontario and the Federal laws of Canada applicable therein without giving effect to any principles of conflicts of laws. You also agree that any action at law or in equity arising out of or relating to these Terms or your use of the Service will be filed only in a court located in Toronto, Ontario, Canada and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for the purpose of any such action.

We only do US law, not Canadian. (But she's clearly in the wrong, regardless of borders.)

 

[quincy]

My daughter published a professional bi-lingual comic on Amazon, but we had to stop it as we thought we may be breaking copyright.

We are now going to start a Kickstarter.com campaign to raise money to pay for new illustrations.

The idea and text is hers, but the images were used from an online comic creator website.

So the question is, if we print and give books in return for a pledge on Kickstarter.com does this still infringe the commercial aspect described below? And if it doesn't do we need to credit the comic website with the copyright of the images?

If your daughter created the original text for the comics then she owns the copyrights in the text portion. For any images she did not create herself, she requires the permission of the copyright holder(s) of those images before she can use them to illustrate her text. To use the comics without permission is copyright infringement and your daughter could be sued.

If your daughter hires illustrators to create images to go along with her comic-text, the creator of these illustrations own the rights to the illustrations unless or until an agreement is signed to the contrary. Your daughter, therefore, will need to acquire from them their rights in what they create. The rights-holder can either transfer all rights to the images to her so she becomes the new copyright owner, or the rights-holder can license the rights to use the illustrations, with terms as agreed upon between your daughter and the illustrator. But it is important that any agreement made on the newly created comics is in writing and signed by the artist/creator.

Good luck to your daughter.

 

[adjusterjack]

4.9 You may not use the Service or the Content for a commercial purpose without the consent of Bitstrips.

If you give away the book in exchange for a donation you are not giving away the book you are selling it and the donation is not a donation it's payment for the book. That's commercial purpose.

 

[quincy]

If you give away the book in exchange for a donation you are not giving away the book you are selling it and the donation is not a donation it's payment for the book. That's commercial purpose.

Not always true.

 

[justalayman]

One does not need to sell a book or gift it in exchange for a donation for the use to be commercial. Advertising is a perfect example of using something in s commercial use such as the work is neither sold nor gifted to another party but displayed.

 

[quincy]

One does not need to sell a book or gift it in exchange for a donation for the use to be commercial. Advertising is a perfect example of using something in s commercial use such as the work is neither sold nor gifted to another party but displayed.

With donations, you can donate $X and receive a gift in exchange for your donation. It is still a donation. For tax purposes, however, when you receive a gift in exchange for a charitable donation, you might have to deduct the value of the gift from the donated amount.

 

[justalayman]

With donations, you can donate $X and receive a gift in exchange for your donation. It is still a donation. For tax purposes, however, when you receive a gift in exchange for a charitable donation, you might have to deduct the value of the gift from the donated amount.

That wasn't my point Q. It was that for something to be considered a commercial use it doesn't even have to be sold or in any way exchanged for remuneration. My example of using something in advertising was such a use that made the use "commercial".

 

[quincy]

That wasn't my point Q. It was that for something to be considered a commercial use it doesn't even have to be sold or in any way exchanged for remuneration. My example of using something in advertising was such a use that made the use "commercial".

I don't dispute that there does not have to be a sale or an exchange for money for a use to be a commercial use.

My comment was mostly on the donation aspect. A donation does not cease being a donation if you receive something in return and a donation does not become a commercial use if you receive a gift in exchange.

In fact, most charitable organizations will try to encourage donations by providing a gift in return (like tee-shirts or tickets). The time that this can create an issue is with US taxes, if someone wants to deduct charitable donations. The value of some gifts must be subtracted from the donated amount and only the remainder can be claimed as a deduction. But if you donate dollars to the VA, your donation is not a commercial use and it does not cease being a donation, even if you get a small American flag or a poppy in return.

Not that this applies to someone in Canada necessarily. I am unclear still whether greatworth is posting from Canada or the US or someplace else entirely.

One comment that I failed to make earlier and will add now: If the daughter is looking for donations so she can hire an illustrator for her comic, she might not want to give away copies of her comic (minus illustrations) in exchange for the donations. This can work to decrease the marketable value of her text once she gets to the publication stage. Of course, she will need to provide the text to the illustrator she hires.

 

[adjusterjack]

A donation does not cease being a donation if you receive something in return and a donation does not become a commercial use if you receive a gift in exchange.

Make a donation and you get the book as a gift.
Don't make a donation and you don't get the book as a gift.

That's selling the book.

If it walks like a duck and quacks like a duck it's a duck.

Even if you don't want to characterize it that way, OP is still offering the book for the purpose of getting money in return. That's commercial use.

Even a charity doing that would be commercial use.

 

[justalayman]

If the ultimate goal is to aid in the production of a book that will be sold the entire endeavor is a commercial endeavor and as such, using the artwork in that endeavor is a commercial use regardless whether the book in question is sold or gifted in exchange for a donation.

If there is no intent to sell the book but freely distribute it it may or may not be considered a commecial use depending on the exact facts of the situation.

 

[quincy]

Make a donation and you get the book as a gift.
Don't make a donation and you don't get the book as a gift.

That's selling the book.

If it walks like a duck and quacks like a duck it's a duck.

Even if you don't want to characterize it that way, OP is still offering the book for the purpose of getting money in return. That's commercial use.

Even a charity doing that would be commercial use.

Wrong as written, adjusterjack.

Making a donation to greatworth's daughter (to pay for an illustrator, to pay for cancer research, to pay for whatever) does not make it a sale of the book, even if the book is given as a gift in exchange for the donation.

If someone pays $1 and gets the book and someone pays $20 and gets the book, and the $21 goes to pay for an illustrator, there is no sale of the book. There is a donation, a gift for the donation, and money raised to pay for an illustrator. If everyone must donate $20 to get a book, then it could be a sale of a book (perhaps disguised as a donation), unless all of the $20 donations go to something other than the book and its production.

We do not know what country is involved here. We know this involves Canada's Bitstrips. I am not going to investigate the Canadian site to see to what exactly the "service and content" refers in the terms and conditions quoted, and I am not going to investigate all of the provinces of Canada to see if the terms and conditions of Bitstrips have been challenged in Canada and are enforceable in Canada (in Ottawa or elsewhere). But generally the service and content will refer to what appears on the site that is owned exclusively by the site (although it is possible that some content is nonexclusive and the rights belong to both a user of the site and Bitstrips both).

According to what has been provided in the way of terms and conditions, greatworth's daughter and the others who use Bitstrips retain all rights to what they create using the tools available for use on Bitstrips. No one can appropriate the Bitstrips tools for their own uses elsewhere - those rights belong exclusively to Bitstrips - but greatworth's daughter can use the text that she created, and do with it what she pleases. She holds those rights.

If greatworth and her daughter live in a country other than the US, those are the laws that will apply to them. Those are the laws under which greatworth's daughter will be sued, if in fact she is sued for any reason. There is a good likelihood of her being sued for copyright infringement if she uses images in her book that do not belong to her. She needs to get permission from any copyright holder before using their copyrighted material.

The original post has several different issues and the copyright issue seems clearer than the commercial use and the raising of funds. greatworth's daughter should seek help in whatever area of the world she happens to reside.

Just because something quacks and walks like a duck in the US, this does not necessarily mean it's a duck. In some countries, it could be called an entreé. Facts matter.

 

[greatworth]

Thank you everybody! Is Quincy onto something?

Wow - first of all thank you everybody for your time and effort to answer this.

The reason why I purposefully left out our residence, is that if we are using Kickstarter.com then that adds another whole level of complexity to the jurisdiction question as the book could be delivered in the US, UK or anywhere (we are outside the US and Canada). Likewise the donations could be made from anywhere - so from what I can see Canadian law would apply - but regardless of this, whilst I would probably have to get confirmation if we were to go forward - for the moment I am just asking generally.

So the conclusion (as feared) would be that this would be a commercial offer...... or would it?

According to Quincy;
"If someone pays $1 and gets the book and someone pays $20 and gets the book, and the $21 goes to pay for an illustrator, there is no sale of the book. There is a donation, a gift for the donation, and money raised to pay for an illustrator. If everyone must donate $20 to get a book, then it could be a sale of a book (perhaps disguised as a donation), unless all of the $20 donations go to something other than the book and its production."

This may be an option that we could employ on Kickstarter where the donation is varied. In fact Kickstarter has different levels of donations - which normally relate to different things in return (from a virtual hug, name in the credits etc., to the end product) for a pledge of "$x OR MORE". Would this 'Or more' count as a varied amount, alternative could we offer the same reward for different levels of donation?

The only other point that could be a concern is showing the images on Kickstarter at all.


The obvious answer here would be to get bitstrips to allow us to use their images. Which, if I could get hold of them, would on the surface not be any skin off their nose and I would be happy to plaster their name all over Kickstarter. But therein lies the problem ... I can't get hold of them and if we are going to do this we would like to get it done prior to Christmas so people could use the existing book as presents for nieces etc.

If nothing else, it is a damn good lesson for a 12 year old into the complexities of the real world!

Again, thank you all for your input and would welcome any more comments.

 

[quincy]

Wow - first of all thank you everybody for your time and effort to answer this.

The reason why I purposefully left out our residence, is that if we are using Kickstarter.com then that adds another whole level of complexity to the jurisdiction question as the book could be delivered in the US, UK or anywhere (we are outside the US and Canada). Likewise the donations could be made from anywhere - so from what I can see Canadian law would apply - but regardless of this, whilst I would probably have to get confirmation if we were to go forward - for the moment I am just asking generally.

We ask for a poster's country, or state name, because the laws are different depending on in what country you reside. The internet complicates jurisdictional matters somewhat, but it does not really change the fact that, if someone is sued, it will generally be in their own country that they are sued, under their country's laws and in their country's courts.

What is the name of your country, greatworth? We only handle US laws and legal questions on this site. To untangle the different issues that are raised by your original questions, you will need to sit down with an attorney in your area of the world.

So the conclusion (as feared) would be that this would be a commercial offer...... or would it?

It could be a commercial offer. It might not be.

According to Quincy;
"If someone pays $1 and gets the book and someone pays $20 and gets the book, and the $21 goes to pay for an illustrator, there is no sale of the book. There is a donation, a gift for the donation, and money raised to pay for an illustrator. If everyone must donate $20 to get a book, then it could be a sale of a book (perhaps disguised as a donation), unless all of the $20 donations go to something other than the book and its production."

This may be an option that we could employ on Kickstarter where the donation is varied. In fact Kickstarter has different levels of donations - which normally relate to different things in return (from a virtual hug, name in the credits etc., to the end product). Assuming that we cannot offer a 'give what you want' on kickstarter, but could offer the same reward for different levels of donation - would Quincy's point still be valid?

Quincy's point could still be valid. A review of Quincy's point, with an attorney in your country, would be wise and is advised.

The only other point that could be a concern is showing the images on Kickstarter at all.

You cannot show copyrighted images on Kickstarter or elsewhere if you are not the holder of the copyrights. That is infringement on the rights of the copyright holder. The exclusive rights of a copyright holder in the US include the exclusive right to reproduce the work, to display or perform the work, to distribute the work and to prepare adaptations (or derivatives) of the work.

The obvious answer here would be to get bitstrips to allow us to use their images. Which, if I could get hold of them, would on the surface not be any skin off their nose and I would be happy to plaster their name all over Kickstarter. But therein lies the problem ... I can't get hold of them and if we are going to do this we would like to get it done prior to Christmas so people could use the existing book as presents for nieces etc.

Getting written and signed permission to use any rights-protected material from the rights-holder will always be the best way to avoid a costly lawsuit.

If nothing else, it is a damn good lesson for a 12 year old into the complexities of the real world!

Again, thank you all for your input and would welcome any more comments.

The real world is, indeed, a complex one. Anyone who wishes to publish a book would be smart to sit down with a publishing law professional for assistance in navigating the legal complexities prior to publication.

Good luck.