So often I see people upset and crying copyright infringement when their pixel pony (as it is commonly known within our niche community) is copied by someone else and sometimes even when real horses are in some way imported into the game, wither some aspects of them or as entire complete replicas. Fights over player made breeds, names, tracing and referencing. I know it can be upsetting for some while others are unbothered which can further confuse and frustrate some players. Lately we have seen a number of members of the community persecuted for various "wrong doings" by other members. But are these wrong doings actually copyright infringement and illegal and wrong in the eye of the law? And if it isn't copyright infringement, then what is?
It's first important to understand that Copyright applies to the site in which you are using; Deviantart. The internet does not have a coalition of rules and laws that govern it. The internet is governable only by the laws set forth by state/territory and country in which the user lives. Within 167 countries have agreed to the "The Berne Convention" which includes all the USC codes that I will list here. It is likely that the country of your residence is inline with this agreement. The Berne Convention ensures that the laws of country regarding copyright must be recognized by another country.
(Thanks to Ackerley for bringing The Berne Convention up!)
Have I lost you yet? I hope not! xD
Lets look at DeviantArts TOS. I feel like it's important to point out one really interesting fact, this is taken exactly from the Copyright document.
"The bottom line is: Just about anything that is on this site, on the web, on TV, on CD's, on DVD's, in books & in magazines is probably copyrighted by someone."
This is essentially a really nice way of saying that in terms of far we have come as a species in terms of ideas, thoughts and concepts there really aren't any original ones anymore. Yes that includes your art, my art, and everything you have ever seen before. Don't be upset, it's just a simple matter of acceptance. if you have thought it before someone else likely has and someone else has likely done it.
DA was nice enough to list some possible copyright infringement examples for us, lets look at those.
- Placing someone else's photograph or creative work online without proper permission.
Okay this means did you take that photo you want to reference from and re-upload it without citing the photographer. Not the horses owner. Not the horse. The photographer? No? Then it isn't copyright infringement. Now the second half, "creative work," an easy way of thinking of this is, did you take this devination, my icon
and re-upload that exact image without crediting me? No? Then it's not copyright infringement. This means that you could upload that devination of my icon and credit me in the artists comments and it would not be copyright infringement.
- Using a creative work commercially without permission.
This is a fun one. This means if you go to say a stock photo account, take the entire image and sell it on Etsy as a t-shirt and make $15 off of it is a copyright infringement. Now if you got permission from the photographer to use that image on a t-shirt for sale then it would not be copyright infringement.
- Adapting someone else's creative work found in one medium to another medium, such as making a book into a movie or a photograph into a painting.
This speaks pretty much for it's self. To use my icon as a reference again. Say you decided to make my painting into an animation without my permission. Note that animation referrers to an animated sequence and not a blinking eye image which is arguably true animation. Then you would be guilty of copyright infringement.
- Modifying or editing a creative work without proper permission.
Again, if you took the entire image of my icon "peggy" not just the horse (which is the subject) and made any change to and uploaded it without my permission then you would be in violation of copyright.
Now for some actual law:
"Under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Consult your legal counsel or see Section 512(c)(3) of 17 U.S.C. to clarify or confirm the requirements of the notice."
Alright so lets break that down a bit. "...knowingly"(intentionally), "materially misrepresents"(deliberately passing someone else work off as your own, while deliberately hiding the nature of its real creator) that material or activity..."
Material Misrepresentation in application to your art does not mean someone copying your horses coat color or pattern, it does not mean someone copying a real horses coat color or pattern and using it as your own, it does not mean using the same name as your horses or character. It does not mean tracing a horses from a photo, it does not mean someone tracing your horse in your image and re-coloring as their own(i.e this IS legal). It means: taking an entire image (painting, animation, sketch) and saying you made it when in fact someone else did and NOT crediting them and NOT asking permission.
This paragraph is from the TOS. It is #4. I will number the lines in the paragraph with (#) at the beginning of every sentence for easy reference.
"(1)DeviantART is, unless otherwise stated, the owner of all copyright and data rights in the Service and its contents. (2)Individuals who have posted works to deviantART are either the copyright owners of the component parts of that work or are posting the work under license from a copyright owner or his or her agent or otherwise as permitted by law. (3)You may not reproduce, distribute, publicly display or perform, or prepare derivative works based on any of the Content including any such works without the express, written consent of deviantART or the appropriate owner of copyright in such works. (4)deviantART does not claim ownership rights in your works or other materials posted by you to deviantART (Your Content). (5)You agree not to distribute any part of the Service other than Your Content in any medium other than as permitted in these Terms of Service or by use of functions on the Service provided by us. (6)You agree not to alter or modify any part of the Service unless expressly permitted to do so by us or by use of functions on the Service provided by us."
The first Line states that DA is the owner of all copyrights on DA. Not you. When you put "Copyright (your name here)" you are essentially borrowing their copyright licence to protect your submitted artwork. Not your ideas or intellectual property. For example; A Nordanner reference image is a copyright protected artwork on DA. The concept of the Nordanner breed is not. DA does not care that it is your individual breed, only that you made this one picture and if someone saves it, re-uploads it and calls it their's it is copyright infringement. If you made a second breed and call it "Nordanner" DA will not care, as it is in the realm of "material" and "activity" on DA not protected under copyright.
The second line states that you are by definition the original owner of your own work, be it a drawing, video, sketch, photograph or home made good. It also states that if you are not the original owner (copyright owner) then you are re-posting work (the EXACT original work) of the original owner of the material with the original owners or their agents permission. For example, I am the original owner of the artwork "Peggy" there for the I am the copyright owner. I can give you permission to re-upload the exact image of the artwork "Peggy" and it is legal. If I do not give you permission to post the artwork of "Peggy" then that is illegal and you are in violation of copyright infringement.
The third line involves an important term "Derivative Works." I don't want to confuse anyone by first listing the actual code itself but what it means is: A material or creation that includes major elements of an original work (creation). Note that "derived" essentially means to gain something from an original source. (i.e) The movie Bride of Frankenstein was derives from Mary Shelley's novel Frankenstein. "Bride of Frankenstein" is treated as it's own separate work but is also considered a derivative.
In HARPG terms a derivative work is someone drawing your exact show entry but with a ribbon on the horses bridle and at a different time of day. Please remember that work does not refer to your character or horse but the submitted image as whole.
* Please note that any work that is a 100% copy of the original work is not a Derivative Work and is copyright infringement.
The actual U.S.C code on "Derivative Works"
"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."
Line four states that DA is not claiming to own your submitted artwork. Meaning they cannot use your work for promotional without your permission.
Line five means that you agree not to take say the concept of "points" and its programming and values and apply it to your own site.
Line six namely pertains to such things as creating a mass of bots that will visit your page to significantly rack up your page views as that would be modifying the service.
To sum up and generalize, it is not copyright infingement unless you claim an original work as your own and knowing conceal the fact as well as failing to obtain permission from the original works owner.
So please, please, please stop pointing fingers at each other and people who trace, copy a horses look from real life or another player, use the same name as someone else, create a like breed or the same breed and so on. These things are not illegal. At best they are moral concerns and subject to individual opinion on if they are moral or not. With that being said, if you have an issue with someone doing something you think is immoral it is a good idea to bring it up with them directly as opposed to publicly where the individual can be put on unnecessary display and ridiculed.
