When is derivative artwork stealing?

[Shhh]

A debate was closed on LL and PralineSims war over artwork stealing. This thread is not for that, it is for debating over when is derivative artwork stealing? I don't have that much of a view over the topic but I think if you want to use someone else's artwork for a even a base you should ask them first. If anyone has already made this thread and I haven't seen it, please tell me and I'll delete it (or a mod/admin can do it).

[Robodl95]

There also has to be the possibility for it to have been stolen. If you wrote a story about a boy wizard with a lightning scar who goes to Dogwarts and has 2 best friends who help him defeat he who must not be addressed in 1987 but kept the story in your desk then JKR did not steal your work.

[Tempscire]

The originality in the derivative work matters a great deal, but it's very much a legal grey area, and though there are guidelines, there are no clear-cut answers on determining what's legally okay. A particularly transformative work is more likely to be found permissible by the courts. A derivative work, like a translation of a novel, is a right reserved to the copyright holder.

The problem I see with requiring permission for absolutely any use of anyone else's work for doing whatever is that you get annoying situations where, for example, let's you wanted to do a documentary on your home city. (Totally borrowing this example from the wonderful and informative Bound by Law (http://www.law.duke.edu/cspd/comics/) comic; it's free to read online.) You wander around filming things and interviewing people. In the course of your filming, a car drives past, loudly blaring a copyrighted song on its stereo which is then recorded into your footage. You walk past some statues on display in a park. Technically, if you were to then try publishing your own footage, you would require permission to distribute that song and images of that art, since you own the copyright to neither. Obtaining permission can be an arduous process (you have to track down who actually owns the work) that might not go anywhere (you don't get a response, or an unfeasible licensing fee is suggested). It's often easier to plan on asking forgiveness someday than asking permission today. (Cutting out pictures from a magazine to put into a collage probably infringes on the copyright of the original photographers and artists, as well-- should we have to ask permission to cut up magazines?)

In the example of a translation of a work, I can understand withholding the rights to it. There's not enough original work being done; the success of the translation hinges almost entirely on the success of the actual, original work. An unofficial translation could compete with sales for the authorized translation, and thus deprive profit from the copyright holder(s). Personally, I would be happier with a non-compete exception: say, unauthorized translations are allowed up to the point an authorized one is planned/available. Perhaps that is an attitude of entitlement: "I want this, and I'm going to get however I want, and screw you, creator."

But if there's not a licensed product that's comparable and fills the same niche, what harm is an unauthorized translation doing? The original writer wouldn't be getting my money anyway-- I'm not going to buy something I can't read. If it hasn't already been published in my language, then apparently the creator is not big enough to be exported to that market, and again, would not otherwise be getting money from there, anyway.

Fanfiction is considered a derivative work, and though I don't think it's ever been tested in court, it technically is not legal in the U.S. But who would ever reasonably consider someone's slash-OT3-AU story as a potential substitute for the original material with a potential impact on its market? Or even a perfectly faithful telling of a character's thoughts in a certain scene, when the original material is from, say, a movie with a completely different presentation and impact from written material? The reams of Harry Potter fanfic certainly hasn't hurt sales of the books or movies; you argue that it may have even helped. But technically, legally, each and every fic writer should have asked permission from Rowling and Scholastic (and/or whoever the British publisher is, dunno if it's the same), and then, when inevitably told no, put away the keyboards. Is that right? Is that the best decision for protecting the HP "brand"? So long as the fanworks are freely produced and not for profit, then I don't think so.

So, to cut my lecture short (tl;dr goes here): If the derivative work is not very different from the original, and especially if it's targeted to the same kind of audience that could conceivably confuse it for the original, then yes, it's probably theft (well, "theft"). If it's unique and/or to a different purpose, then it shouldn't. If there's absolutely no money involved for any party, then technically a derivative work might be "wrong" but I can't bring myself to care about it or the original creator, especially if the derivative work acknowledges where the inspiration or base material came from. Likewise, a "similar but unique" pair of works doesn't catch my ire, one, because they're unique, and two, if there's no money or even reputation at stake, whatever. (The financial angle is a consideration in determining fair use, btw, for those unfamiliar with copyright workings, and a work that doesn't harm an original's market is more likely to pass that criteria--not that that means it will be a fair use.)

:here: For any who want to read up more on copyright law (from an American legal perspective, for the most part), I recommend the online 'book' The Illustrated Story of Copyright (http://www.edwardsamuels.com/illustratedstory/index.htm). Chapter 7 in particular talks about distinguishing similar works, but chapters 6 and 8 also contain helpful information. Key words to look for are just about any variation of originality, transform(ative), or derivative. The author provides numerous examples throughout about derivative works that were deemed original enough or not, on a seemingly arbitrary basis. Grey area galore and highly subjective.

[SimsLover50]

Intellectually, my feeling is as long as the original work is changed sufficiently its ok to use for the average person. Especially in the case of photographs, which are often used by artists who do photo-realistic pictures. Ideally, you should take your own or use copyright free images, but not every artist has the time or money. If you are doing commercial art, then you should observe the protocols or you will be sued if you use a photo from... say thd cover of national geographic for your romance novel cover. If you are an airbrush artist and someone asks you to do a tiger on the hood of their car, chances are no one is going to care if you use the face off the last months cover of nat geo.

I'm not overly fond of our copyright laws because they allow certain companies to monopolize certain ideas and sometimes it goes a bit too far. An example off hand is when Underworld the film came out the world of darkness (white wolf), sued claiming the work was derivative. When a company such as a game, claims to own all things vampire, then it makes it kind of hard to come up with an original idea. Especially when the idea you collect for your work isn't yours truly either, and those idea permeate culture. I'm not saying White Wolf didn't have a claim, simply that by allowing a collection of thoughts and ideas to be copyrighted it makes things harder for the rest of us schmucks who want to write a book. Plus it is difficult in the extreme to determine when copying is made, or seperating that from inspiration. NOTHING that man/woman creates is ever original, so coming up with an original idea is sort of tough.

Now, on the issue of drawing. My feeling is it is okay to use other artists work for drawing reference, as long as you are not directly tracing it and claiming it is your own. If I look at a picture of the cover of Red Sonja, and draw it, then I consider the work mine. It is still a picture of Red Sonja and the character is copyrighted, but I did draw it myself and that would make it sufficiently different. If I trace it though, no. If I use it as reference, and then change the character from red sonja to a hot nurse with a sword, in a hospital surrounded by patients, that's not even derivative.

I probably couldn't and shouldn't sell red sonja cover prints on the market. But if I copyrighted it to marvel and displayed it at comicon or even sold it there, chances are no one would care.

I wouldn't ask permission from the original artist to use their work as reference material. As long as the work is changed sufficiently. So in the case of the nurse with a sword, perfectly fine.

The truth is, art is mostly about copying. If you arent' copying your favorite artist to learn how to draw, you are copying from life. And this is how artistis learn. I'm not really interested in limited artists too much by law and reason. The more art there is.... Especially good art.. The better in my opinion. It wasn't that long ago that art was not copyrighted and artists copied eachother all the time. There was quite a market for copies.

As long as whatever you copy isn't directly copies or just altered, then I'm good. Even for tracing, I'm good as long as you acknowledge you traced and then only to a point. There are many artists who don't bother sketching anymore, merely trace the subject matter from reference photos and paint it in. If they trace a hand from a ad, and the lips from another ad, and the eye from the other ad, then color them differently, its still original enough work to be unrecognizeable..

[SimsLover50]

There also has to be the possibility for it to have been stolen. If you wrote a story about a boy wizard with a lightning scar who goes to Dogwarts and has 2 best friends who help him defeat he who must not be addressed in 1987 but kept the story in your desk then JKR did not steal your work.

The dangers of copyright would mean, that even if you have the exact idea, it really is about who gets to the punch first...

[maxon]

mmm - copyright law has mostly been developed though to protect the originator's commercial interests. In terms of the sims CC, this does not really apply (though this is one reason why pay sites are such a problem area). I don't know about American law (pace Tempscire) but in British law, I think you'd have to show that someone's use of original material from you is damaging to you and this is primarily in a commercial sense (though damage to reputation can also be an issue - though then again, what does damage to reputation really mean except in terms of damaging your public profile and commercial success, at least in the wider world? I don't think making your friends think badly of you counts legally).

Tempscire does a good job of talking about the issues around copyright from a creator's point of view. I'm a professional musician (well, not so much anymore but that's another story). If someone used a recording of mine and sold it as their own under their name, that's clear copyright infringement - that's my recording and I am entitled to the income from it. If someone is using my recording in, say, a bar to entertain their customers at night: well, strictly that is copyright infringement too - they should be paying me a performance fee. But if they are also saying to all their customers, "here's this recording of this fabulous pianist (heh, if only) and here's all the information for you to be able to find a recording for yourself," there's something else going on there. In a legal sense, in a court of law, they would be found in breach of the law because what they are doing is illegal. On the other hand, if I'm getting lots of sales and goodwill, I might be inclined to leave it alone. And that's the other thing with copyright law - at least here. It's not criminal law but commercial law we're talking about and it is only applied when the injured party makes a legal complaint (i.e. starts a suit) otherwise it is of no concern to the courts and the police are not involved (usually). In other words, although copyright is legally in force across the board, it is not something for which you will be prosecuted unless the injured party concerned initiates that prosecution. It's only applied in specific cases and, furthermore, as a complainant, you would have to show that the actions of the copyright infringer are highly damaging to you.

This is why I always find discussion of copyright in terms of Sims CC a bit absurd (there are other reasons I find it absurd but this is one of them). If a sims creator tried to initiate a suit over copyright, the courts (at least here) would, quite rightly, laugh your suit out of court (should it even get that far - a good solicitor would tell you to be not such a dick). Arguments over designing computer sprites for a game which you release into the public domain for use by all and sundry for FREE is far too trivial a matter for copyright law and you'd have a damn hard time showing how anyone is damaging you.

Which brings me to the issue of ethics. While I find the discussion of copyright in terms of Sims CC absurd, irrelevant and inapplicable, it is clearly wrong to use someone else's material and pretend it's your own. But I think this is an issue of ethics not law. I am (now) a lecturer in a university. One of the perennial problems we have is with plagiarism. I am sure you all recognise (or at least know) that using someone else's words or ideas in an academic submission without proper referencing is wrong and, if discovered, leads to serious consequences for your marks (or indeed your tenure at your college/university). In a similar way, using someone else's work to do the assignment for you, even if you do reference it properly, can be considered lazy (an example of this would be using a lot of quotes in an essay with only short linking sentences of your own in between) and is also likely to get you a low mark (though this does depend on circumstance). We, the tutors, expect students to do some work and, with undergraduates anyway, this means paraphrasing and putting ideas into your own words whilst simultaneously referencing your work properly.

For me, this issue of using materials from other CC creators falls into the same kind of practice. Presenting someone else's work as your own is (ethically) wrong, that's clear. Presenting something as your own work with elements taken from someone else without acknowledgement is also (ethically) wrong. That's also clear. Presenting work where you have made minimal changes, even when the original work is acknowledged, can be lazy. That's less clear because someone might be saying, "I loved so-and-so's CC but I wanted it with a brown wood frame rather than a black one so here it is to share" is less problematic than someone saying "I liked so-and-so's CC so much, I made my own version here." I think that sort of thing needs to be judged on a case-by-case basis.

So, what's the difference? Well, plagiarism is not illegal. It's shitty but not against the law. If I were writing a set of Sims Community Creator Guidelines, I would stress that creators should give full acknowledgement to their sources and also be honest about the extent of their own creative input. If it were up to me, someone failing to give proper acknowledgement would get a failing grade but, sadly, I can't do that. Someone who does use the work of others work without due acknowledgement and respect though, deserves every ounce of opprobrium the community can heap on them.

[Tempscire]

Arguments over designing computer sprites for a game which you release into the public domain for use by all and sundry for FREE is far too trivial a matter for copyright law and you'd have a damn hard time showing how anyone is damaging you.
Excellent post, maxon. I do want to point out, though, that technically CC creators are not releasing anything into the public domain...not by default, anyway. "Public domain" is a particular term referring to works not protected by copyright (perhaps British/US just use different terms?). Simply releasing something to the internet for free does not revoke copyright protection (inasmuch as CC has copyright protection; I'm certain a good portion of it would not actually qualify, if any of it does).

Interestingly, a number of creators have usage terms that parallel a Creative Commons license: don't charge money for this thing I did, and give me credit for doing it.

[SimsLover50]

I realized i did not answer the question. The question is: "When is derivative artwork stealing?"

I can only answer from an art school perspective.
The answer for me is when is:

1. when you claim the artwork as yours, and it is simply a copy/traced a slightly modded copy with little or no alteration and when you claim credit for the original work as your own and seek to profit on it.

When it is not stealing

1. Artwork is sufficiently modded to have the source in doubt, ( I use the photo of an eye from a magazine cover and place it in the forehead of a cyclops, but alter it).
2. When you use the artwork but do not seek to profit (such as airbrushing the cover off of a marvel comic on your kid's wall).
3. When you use the artwork (such as a source photo), but change the composition sufficiently
4. When you have permission of the original artist
5. When you borrow the idea, but not the composition. (say I check out a magazine and really like the picture of the 3 elves on the cover. I decide to draw a picture with 3 elves, sure I may have been inspired by the other cover, but the idea that someone owns the concept of 3 elves is just balderdash.
6. When 'everyone is doing it.' Sounds like an excuse, but if the current trend is to draw one thing, and everyone is doing/copying the style, while yes, it may be derivative it is more like a pop culture thing.

[malfoya]

There is an easy rule (I study graphic designs so I know this very well). If you are able to recognize your work in someone else's creation, then it counts as stealing your work. If we want to use a picture for something we make, we need to make it unrecognizable. If someone makes something similar as you, it's doesn't count as stealing though (if you haven't looked at each other).

[maxon]

Excellent post, maxon. I do want to point out, though, that technically CC creators are not releasing anything into the public domain...not by default, anyway. "Public domain" is a particular term referring to works not protected by copyright (perhaps British/US just use different terms?). Simply releasing something to the internet for free does not revoke copyright protection (inasmuch as CC has copyright protection; I'm certain a good portion of it would not actually qualify, if any of it does).
I'll defer to you on this - I wasn't aware Public Domain had a specific legal meaning - it's something that gets bandied about in academia a lot. But then I should know by now that academics are not good at using language well or correctly. I would guess it does mean the same thing here since it appears to me that the principles of US and British law are very similar.

[Shhh]

Looks like I just created a debate thread where I can't understand half of what people are saying! I, thankfully can understand some posts :D .

[SimsLover50]

I think it is pretty clear what is stealing and what is not in the art world. Direct copying is a no no, indirect copying sketchy-but it can really depend, inspiration-by or total alteration done all the time.

Interestingly Collage artists are often in the thick of the 'derivative work' controversy as by the nature of their work it is illegal to do without permission of the original copyright owner.

[SuicidiaParasidia]

this topic raises these questions, for me:
1) if one person has an original thought, makes an original work out of it, and someone else who has not heard of this person comes along and has the same exact thought, are they wrong to pursue it because they weren't the first to do so?
2) what IS an "original" work? theres only so much you can do/say/think before you inevitably begin to copy someone.

its not to say that i cant understand what the fuss is about if its a direct trace/ripoff and someone is trying to make money off of that trace/ripoff and not off of their own skills/effort/talent, but its tough to tell, since just because something came first doesnt make it the only thing like that in the world, or even that it was the first to be thought of.

[Mistermook]

It also gets back to "what is art," because when there is an issue of derivation you've essentially got to prove that you inserted your own art into the material. For instance, people do the same plays over and over again, and most people agree they're all doing art by acting in them, because the art is in the interpretation of the piece. If someone isn't plagiarizing the work of another you should be able to see the art as the difference. Which gets even more muddled when you're talking about writing and music, because editors and producers can substantially change the artist's original vision. Is it their own work at that point, or a collaboration?

[SimsLover50]

this topic raises these questions, for me:
1) if one person has an original thought, makes an original work out of it, and someone else who has not heard of this person comes along and has the same exact thought, are they wrong to pursue it because they weren't the first to do so?
2) what IS an "original" work? theres only so much you can do/say/think before you inevitably begin to copy someone.

its not to say that i cant understand what the fuss is about if its a direct trace/ripoff and someone is trying to make money off of that trace/ripoff and not off of their own skills/effort/talent, but its tough to tell, since just because something came first doesnt make it the only thing like that in the world, or even that it was the first to be thought of.

Good points. To some extent art is copying. You go to the beach, see a sunset, paint what you see. You go to an art gallery, see that pictures of whales are selling, decide to do a picture of a whale. You find superheros are the hot item and you design your own.

There really aren't any original ideas. Someone usually has 'done it' before. You can't really copyright ideas as much as the expression of one.

Music is a little more clear. But with pictures and inspiration, it is really tough to say. I personally don't want people to be able to copyright ideas or collections of ideas. The expression yes (ie superman), but the idea that someone might fight crime in the city in a cape and funny costume... No.

Writing is also another area that is very commonly derivative. For instance Rachel Vincent lifted many ideas of how her werecats behaved from her mentor Kelley Armstrong's werewolf books, even to the point of the werecat leader having a cage in the basemnet to detain unrully wolves. Armstrong was ok with the blatant idea er... idea taking, because they are on friendly terms. But when I read vincent's novel the similariites were annoying.

After the paranomral romance genre came out and urban fantasy authors began copying and doing the same thing. It really would be impossible to tell who copied whom and who had the idea first since they are all pretty much playing with the same types of scenarios and characters.

[BlakeS5678]

I have a feeling that if someone even bothers to take the time to accuse you, (as long as this isn't a person known for being jealous or lazy) it probably means you did something a little too similar. (Accussing is a very brash, bold thing to do.)

P.S I'm just making a general statement I'm sure there's a few cases where this might not always be the most logical. Like as stated before where it's a popular thing and many others are also doing it.

[SimsLover50]

It can and it can't be. I mean, in the case of Underworld vs. White Wolf. WW created a world based on popular myth legend and pretty much borrowed and embelished existing vampire legends and werewolf legends and incorportated them into their RPG. Their work contains similariites to Dracula, Anne Rice, and Laurell Hamilton. Do they own vampires and werewolves because they copyrighted it? Our law says they own the 'expression' of the theme. They DO NOT own vamps or weres themselves. Their lawsuit alleged that the Underworld writer took the vampire/werewolf love story from a short story they publihsed. However did it actually occur? We don't know. The idea of starcrossed lovers is just a simple Romeo/Juliet scenario, and seems rather an obvious thing to write as it is simply a matter of opposites attract.

It would be very difficult to avoid using something that WW has not used in one of their publications their tropes are quite common and widely imitated.

To me, sometimes copyright- especially when it comes to ideas and their expression in writing is a slippery slope.

[maxon]

I thought this was an interesting article, covering very similar points this discussion.

http://www.guardian.co.uk/stage/theatreblog/2011/oct/11/beyonce-de-keersmaeker-dance-move

[SimsLover50]

I hope dance moves cannot be copyrighted. Sorry, to me that takes things way too far. But this is kind of the slippery slope when people claim ownership to ideas.

[maxon]

I hope dance moves cannot be copyrighted. Sorry, to me that takes things way too far. But this is kind of the slippery slope when people claim ownership to ideas.
Well, the woman is a professional choreographer producing dance scripts (and that's dance scripts not dance moves) for professional companies (modern dance and ballet in this case). There's even a notation for it. (This is the sort of thing I am familiar with: http://www.sportsbabel.net/2008/11/labanotation.htm). Coming from a performing arts background myself, I kind of get where she's coming from. There is a deal of technical and creative input in that sort of context for someone who 'composes' the show if you see what I mean. Anyway, the point is she wasn't going to go after Beyonce for breach of copyright and kind of backs up what I was saying about copyright earlier though she was, legitimately, pointing out that the dance sequences seem to have been lifted from her work.