Did ya hear the one about the art thief who ran out of gas?

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What do you know about art? You're just an artist!

Let’s be clear about this from the outset: I’m fully aware I’m about to contribute to a full-Yentl-level Streisand Effect on an issue that would probably die a slow, whimpering death if we just left it to suffocate under its own weighted blanket of disingenuousness. 

But, here we are, more than a year into a situation so eyerollingly sigh-worthy that I shelved my introductory "Hey, I'm the editor here now!" piece in favor of painting myself, if not like a French girl, at least in a way that is apparently profitable.

If you missed the update earlier today, poker photographers from all over the industry are still at odds with PokerPaint founder Brett Butz over his use of copyrighted images in his production of digital art. The photographers and their supporters have proven they are fine speaking for themselves, and they are becoming adept at producing cease and desist letters. Butz, if the most recent C&Ds are any indication, is less adept at heeding the warnings.

Don’t tell Joe Giron he doesn’t understand art.

Giron, one of the industry's top and most highly-regarded photographers, is just one of the professionals who have fought back against Butz's use of their copyrighted images. And Giron is no stranger to protecting himself.

Over the course of his career, he has been all over the world working not just in poker but in real-life disaster zones. Earthquakes. Plane crashes. Looting. He once embedded himself in a street gang. All of the clips below are his, and they are just a tiny fraction of the kind of visual art he has produced. It's the kind of art that took literal blood, sweat, and tears to produce.

Giron has spent four decades creating art with his eye and camera. He also spent a lot of that time around some of the greatest artists in the world. I’m not going steal his photos to publish here, but take a moment on his website to see the countless respected and timeless creators with whom he spent a huge part of his time behind the camera.

The point is, we can all disagree on what is art and what is not, but when Joe Giron speaks about the fair use of copyrighted material, folks would do themselves a favor by listening to him.

But really, what IS stealing?

So, that picture at the top of this page is a photo of me taken at some point in Reno at a Run It Up poker event. Despite the fact that I'm actually in the photo, I don't own the rights to it. It belongs to Run It Up and the photographer who created the image. The only reason I can use the altered version of the original here is a little thing called Fair Use.

While no one came here for a lesson in copyright law, the simple fact is that the fair use of copyrighted works is very strictly limited and generally understood to mean: you can't take someone else's copyrighted work, modify it a little bit, and then sell it for profit without being in violation of copyright law. The only reason I can use the photos as I did here (including but not limited to feeding myself to a shark) is that I'm using them for illustrative educational purposes about the issue of copyright violations. If I had just taken the original photo from its place on the web and used it here, Poker.Org would be in violation of the Run It Up copyright. If I put the photo on a t-shirt and sold it outside the Peppermill, I would be in violation of the Run It Up copyright. If I made it look like stained glass and turned it into an NFT....well, you get the idea.

As you might expect, there is some legal precedent for this kind of thing. Look up the Huey Lewis/Ray Parker Jr. lawsuits over the Ghostbusters theme song. Or Roy Orbison vs 2 Live Crew. Or, my favorite, Vanilla Ice vs. Queen and David Bowie. Copyright infringement is going to happen among creators, and sometimes the line is thinner than other times. This isn't one of those times.

Butz and others who support his style of creation are currently hanging their hats on a case going before the US Supreme Court next month in which the estate of pop artist Andy Warhol will face off against against a photographer. The dispute is over the Warhol estate's use of an image of Prince captured by the photographer. An appeals court has ruled in the photographer's favor, but the Supreme Court has agreed to hear arguments in the case. I'd encourage anyone rooting against the photographer to read the many amicus briefs filed with the court, among which is a brief filed in support of the photographer by...the United States. Literally. The government of the United States is like...."seriously, bro?"

It's first grade sandbox legal theory: if you take someone's toy, that doesn't make it yours even if you decide to paint it a different color and call it a Ghostbusters NFT.

How does 2% sound?

Am I salty?

I’m a damned slab of country ham washed down with a half-gallon of seawater.

I might have made it salt-free to the end of my work day if I hadn't gone back and read an interview with PokerNews last year in which Butz reportedly spoke about his efforts to compensate photographers for using their images, saying (emphasis mine), “I’m trying to work with almost everyone...Only reason this is dragged on is because some people wanted 40% … 40% is a bit ridiculous. I respect shooting for it, but it’s not that big of a part of the creation process. I moved up from 2% to 20-25%.”

Ignore the fact that I’m friends with Giron. Ignore the fact that I’m friends with Neil Stoddart, Drew Amato, Danny Maxwell, Rene Velli, Eric Harkins, and the vast majority of pro photographers who have spent years photographing poker players. You can even ignore the fact that I spent years making sure every poker photographer who worked for me got paid fairly for their efforts. I did that because they are professionals who work ridiculous hours on their feet to capture moments most people never see. I did it because they are artists, and their images are both their art and their property. So, it makes me salty if anybody steals from them.

If you have ever worked for anything in your life--being a top athlete, a learned legal scholar, or a GTO poker expert--you know the measure of sacrifice you put in to make it to the top. No one could or should be able to dress up like you and reap the profits of your labor.

Photographers make that sacrifice. Even with today's advanced phones and cameras, it doesn't take a trained eye to tell the difference between a picture Joe Giron took and one my mom took on her iPhone, and I don't see anyone clamoring to make an NFT of that picture my mom took of me last Christmas.

That's because the top photographers have spent years learning the art of composition, studying how to get the perfect white balance, and, notably, building relationships of trust with the subjects of their images. If anyone wonders why some of poker's top names turned up their nose at the PokerPaint digital images, it's because those poker players know the poker photographers and the hard work they put in for their craft.

Not that big a part of the creation process?

Kiss my salty ass.

Hell yes, I'm biased

This isn't a news piece. It's an editorial. It's an editor's letter. It's not legal advice. It's common sense right-and-wrong, "we don't take other people's things, Johnny" venting. And, yeah, I'm coming from a position of bias.

Here’s your full disclosure moment: I’m double-salty because I had to waste my time this week protecting my own work from the same kind of disingenuous cash grab.

In another life, I spent years researching, writing, and producing a 27-episode investigative podcast, during which time I learned even more about copyright law than I’d learned in college or a couple decades as a journalist and creator. I also produced a companion website for the podcast that often included deeper research, design, and information. 

So, imagine my surprise this week when someone pointed me to a book on Amazon that included page after page of text that was directly copied from my podcast website.

Word for word. No effort to even change the formatting.

The “author” had apparently book-ended my years of work with a couple stories of his own, changed the title, and put his name on it. The self-published guy went as far as to do YouTube interviews about his work, scheduled a book signing, and–brace yourself–sent a copy to Clint F—ing Eastwood. 

After I spent a few hours dealing with the situation and Amazon–which has had to deal with this kind of thing for years–nuked the guy’s listing on the Amazon website, I got email from the Creator of the Infringing Work asserting (clearing my throat a little here), everything he put in his book was in the public domain because….it was on the internet.

It was all I could do to not respond, “I don’t think that phrase means what you think it means.”

Here’s the thing: I know what’s in the public domain when it comes to copyrighted work because I spent days upon days trying to find the perfect style of music for the podcast I created. That music existed, yea verily, on the internet, but it wasn’t in the public domain.

Without the artist’s permission, I couldn’t use the music without paying hefty royalties fees that were not in my budget. At one point, I wanted to use a 30-second clip of the news program 60 Minutes for an episode of my show. When I inquired with 60 Minutes, I learned that 30 seconds would cost me $6,000.

So, what is a guy to do, right? 

I’ll tell you what a guy is to do. 

I couldn’t afford royalties or licensing. My morals and budget both kept me from using other creators’ art and then later claiming ignorance or, “public domain, dude.”

So, I sat down and spent eight months writing, performing, and recording every second of music I used in nearly 30 hours of programming. 

Put another way: rather than co-opting someone else’s creation and not paying them for it, I created something wholly on my own.

I might have gotten it done faster and made more money if I'd appropriated someone else's music, but I'll tell you this:

I didn't get one cease and desist letter. Not a single one.

Funny how that works. Not as funny as that joke about the art thief, but it's close.