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Fan Art

Fri Jul 17, 2015, 10:36 AM
5 by ProtectArt

Fan Art and Fan Fiction are amazing ways to participate with a character, novel, film, television series, comic or even music artists and their songs. And, pretty much everything that fan art references is a copyrighted work. So, fan art starts its life as a “derivative” work of the copyrighted original and, as a result, technically fan art is copyright infringement. It can also be a violation of trademark law and sometimes the actor’s rights of publicity if they are well represented in the fan art.

BUT, BUT, BUT

There is so much fan art and fan fic! How come?

Copyright and trademark owners as well as big shot personalities and actors have wide ranging feelings about fan art. Some welcome fan art as a sign of love and respect or as a way to connect with fans and generate even better audiences for the original work. Some are hostile, viewing it as damaging the canon of the original work or cheapening the presentation or just as a form of stealing the original.

Fan Art can be OK and qualify as “fair use” under the copyright and trademark laws; meaning that even if technically it’s an infringement and even if the copyright owner hates it, the way in which the fan art uses the original either completely transforms the original or uses the original in a small way that doesn’t harm the commercial interests of the copyright owners.

Fan art is also frequently allowed through what is known as an “implied license.” This happens when it is obvious to everyone that fans are using the original work and there is a consistent lack of complaint from anyone connected to the original. Sometimes a copyright owner like a big studio or a major comic publisher will directly ask fans to produce art.

But the copyright or trademark owner has ultimate control over whether to permit fan art. Even when fan art looks like it is permitted, the owner may choose to only permit certain kinds of fan art and prohibit others or change its mind and its policies going forward. For example, a big comic publisher may think it’s OK to permit its characters to be drawn by others and displayed at a convention or let them be posted on the Internet without objection. But the same owner could draw the line at commercial sales of fan art. The important thing to remember is that the owner has these rights and they should be respected when enforced responsibly.

Fan Art
Artist Creditkozispoon

There is one thing for certain: copyright owners — whether an individual or a large media corporation — are always hostile to any serious commercial use of fan art.

But it is also true that fan art is an important contribution to the culture and a key way of “talking” about a favorite book or movie, for example. Copyright and trademark law cannot stop a conversation about the original, protected work. Some lawyers believe that as long as the fan art is clearly about saying something non-commercially in the form of a critique, parody, satire or just as an expression of passion for the original then the courts will permit the fan art even if the copyright or trademark owners try to have it taken down.

It is ironic to see fights over fan art since it invariably comes from a position of true respect and admiration for the original.

For a more detailed explanation of the law that applies to Fan Art you can watch the following video produced by DeviantArt of a presentation on this topic at San Diego Comic Con International:

Fan Art Law

Fan artists can help themselves and the owners by taking a few simple steps:

  • Respect the copyright owner. Remember, unlicensed fan art very likely infringes on the owner’s copyright. So, fan art exists only because they allow it. If they prohibit or restrict fan art, respect their wishes. If they ask you to take it down, be respectful as well.

  • No serious commercial exploitation. Artists know that commercially exploiting someone else’s creativity is wrong and disrespectful. Commercial exploitation of someone’s creative work undermines the laws meant to protect the entire artistic community.  Occasional one-off sales may be OK with the owner of the original, particularly for very famous characters. But running lots of multiples without asking direct permission is just wrong even if you think there is an implied license of some kind.

  • Label fan art as fan art. Labeling helps make your intentions clear: what I do is for love, not money. I’m admiring, not imitating. More importantly it lets everyone know that the art or the fan fiction is, in fact, from a fan and not something produced by the owners of the original work.  The worst you can do as a fan artist is to pretend you are producing authorized and approved content when you are not.

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Moral Rights

Fri Jul 17, 2015, 10:36 AM
6 by marioluevanos

How would you feel if someone defaced, mutilated, destroyed or simply threw out your art? How would you feel if someone displayed your artwork but put their name or someone else’s name as the artist? Would you feel a piece of yourself was destroyed also?

Moral Rights protect against art destruction, art misrepresentation and false credit. Copyright law protects the economic interests of the artist and follows the work, not the artist. Moral rights protect the artist’s personal interests in and for the art made by the artist. In most of the countries that have laws protecting Moral Rights the artist or his or her representatives cannot recover money damages.  The court will, however, issue orders that prevent harm to the artwork or to the reputation of the artist.

There are four major forms of Moral Rights: The Right of Integrity, The Right of Attribution, The Right Disclosure and The Right of Withdrawal.

  • Right of Integrity.

    The right protects against artwork being defaced, mutilated, destroyed or misrepresented in a way that damages the artist’s reputation.

  • The Right of Attribution.

    The right protects how the artist wishes to be credited, as well as false credit. For example, if an artist wishes to remain anonymous, use a pseudonym or just remain un-credited.

  • The Right of Disclosure.

    The right protects the artist’s interest in being the first decision maker on whether he or she wants the public to see, hear or read the work in question and the way in which the work will first be presented publicly.

  • The Right of Withdrawal.

    The right to withdraw a work from public view or distribution on the basis that the work somehow harms the artist’s reputation or standing as an artist.

Moral Rights make common sense because they are social rules of behavior.  It’s wrong to needlessly destroy an artwork. It’s wrong to alter an artwork so much that it no longer looks or reads or sounds as the artist wanted. It’s very wrong to take credit for art that you didn’t make. But there are some social rules that get incorporated into the laws of a country and some that are better left to people to sort out on their own.

Different countries have very different views, sometimes completely opposite ones, on Moral Rights. The divide centers on a philosophical difference.

Is being an artist like a trade or a business serving an essentially economic purpose of selling artworks? In this approach, very broad economic and trade protections are given under the copyright and trademark laws. Artists are incentivized, but to do business. The artwork becomes a commodity and essentially becomes divorced from it’s author.

Is being an artist a special and unique personal talent expressed for the benefit of the cultural wealth of the people? In this approach, the purpose of Copyright and Moral Rights laws tilt towards artistic control. Artists are protected because without special laws they will not feel free to produce their most revealing and culturally valuable works. Artistic expression is not a commodity even if individual artworks become so.

In France and Germany, the laws protect the author’s personality, not just economic interests. In France, Moral Rights last forever and pass on to the heirs and personal representatives of the artist, while economic rights do not. Moral Rights in France and Germany cannot be waived or transferred, while copyrights can. Artists are protected in France under French Moral Rights (Droit Morale) even if they are not French citizens or even living in France.

Moral Rights
Artist Creditkozispoon

A major, modern playwright specified that the five parts in his most famous play should only be performed by men. When a well-known producer in France after the author’s death tried to present the play with women, a French court stopped the play from being performed at the request of the author’s heirs. A 150 year old or more painting owned by a prominent French museum was hung next to other works that the heirs of the painter objected to. The museum was forced by a French court to move the painting to a different location. John Huston, an American film director made a classic black and white movie, The Asphalt Jungle. At the request of his daughter a French court stopped the distribution in France of a color version of the film owned and distributed by an American-owned studio.

In contrast, the United States provides very limited Moral Rights protection: only for rights of Integrity and Attribution and only for fine art and only if the work hasn’t been reproduced in more than 200 copies and only enforceable by a living artist. How come?  Many would say that the United States doesn’t respect the arts except as an economic engine for profit. More than other countries, the United States values open expression and Moral Rights are associated with interfering with how art is used by others once purchased. Major film companies, record companies, theaters and book publishers have long been subjected to serious Moral Rights lawsuits and claims in Europe. The United States wanted to avoid those. Finally, the only reason it has even this very weak law was so that the United States could qualify for an international treaty to protect copyrights and trademarks outside of the country. The motivation had nothing to do with protecting artists.

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Protection

Fri Jul 17, 2015, 10:36 AM
7 by ProtectArt

Just because your work appears on the Internet does not mean you have given it away. Access should not be confused with ownership. You still hold the rights and can exercise control over your work. The realities of the Internet may make it seem like a futile task. Not true.

There are a number of measures you can use to protect your rights in the digital space. These options range from the simple to the sophisticated. Some cost money, but a great deal are free.  It is helpful, when you are weighing the various options and the effort you plan to put in, to try and answer this question first: “Why do I need to protect this image?”

The following is a list of steps you can take to protect your work online. The best approach is to use as many as possible; using one in isolation may not be effective.

  • Copyright.

    Copyright protection is automatic in almost every country of the world. It protects you while you sleep but you have to be active when you wake up to someone using your work without permission. In the U.S. you can demand that the infringing work be removed. (You can read about this in the DeviantArt Copyright Policy.) Other countries have similar laws and other websites have similar “takedown” tools made available to copyright owners. While not a requirement and these days only an issue for works distributed in the United States, you should consider placing a copyright notice either directly on the image or near the image. A correct notice contains © (or the word “Copyright”), the author’s name and the year of creation.

  • Watermarks.

    A watermark is a very visual way to indicate that you are protecting the work from reproduction or use as stock. They can be visible or invisible. Sometimes, watermarks can contain “metadata.” Metadata is information embedded in the image. It is used to help identify and track the image through the Internet. Tampering with a watermark or other digital rights management software is illegal in the U.S. and other countries. DeviantArt provides the option of adding a watermark when you submit although the DA watermark does not include metadata.

  • Upload A Lower-resolution File.

    Uploading a lower-resolution file will prevent commercial uses of the work in stock or in reproductions. At the same time, the web doesn’t require high-resolution files for a good display. The size of the files you use are a technical consideration. A good camera photo might be 4000 pixels in the longest length while web display would only need 1020 pixels for a great looking result.

    Artist CreditBreatheNaked
  • Sign It.

    Many artists use digital signatures placed on their works in a way that is prominent but that doesn’t interfere with the artwork itself. The signature is more than just claiming credit. It makes it clear to others where the work originates and makes a copyist think twice if they plan to take credit for themselves. Although you can place a signature in the margin below the image, the preferred approach, from the point of view of deterring people from using the work as their own, is to place the signature inside the work.

  • Shout It Out.

    If you can, post a comment under your work that explicitly reminds others that the work is protected by copyright. You can also tell them about other restrictions on use. The point is to say it. Don’t assume that everyone knows they need to ask permission. There are some great badges, symbols and pre-baked messages for this:

    Please Respect Copyright Laws by MarinaNeira
    Copyright Stamp by MoRbiD-ViXeN
    Copyright Stamp by J7MiGi
    HA I'm Copyright Protected by de-Mote
    Artist Rights by taruto
    Profile Content Copyright by TheLoveTrain
    Not Allowed Stamp by izka197
    Do not use my artwork stamp by diabolikal-lily
    MY Artwork, MY Gallery. by Ashy666
    Not Authorized stamp by smilekeeper
    'Not Stock' Stamp by J7MiGi
    Creative Commons by iremnaz
    Free to Use Stamp - Credit by J7MiGi
    Deviation Buttons: Lineart 1 by Metadream
  • Create A License.

    Since you are the owner, you can place restrictions on use. You can also state in a positive way that some uses are OK and others are not. A well-known example is the Creative Commons license. It allows others to use the work for non-commercial purposes, as long as you get credit. You can place further restrictions, like requiring notification if the work is used or saying your work cannot be used in a certain way or for certain artwork.  And you can give advance permissions such as reproduction for classroom use but not for commercial uses.

  • Sharing.

    Almost all websites with images now include “share” buttons so that the image can be placed in other social networks such as Facebook, Pinterest, Tumblr, Twitter, Reddit and others. Some websites, like DeviantArt, let you remove share buttons. But sharing is the Internet. Any image can be right-clicked or screen captured. It is the way these digital tools have been designed and they are now a fact of how we communicate.

  • Read The Terms of Service.

    Always read the terms of service for any website where you upload images. You may be surprised to discover that the website may claim the right to license your work to other people.

If you wish to leave a comment, click here. →

Examples From DeviantArt


Custom Watermark


Artist Signatures


Copyright Notice On The Image


DA Watermark


Terms As Part Of The Image





Resolving Disputes

Fri Jul 17, 2015, 10:36 AM
8 by ProtectArt

Confronting copying can elicit strong emotions. It is easy to take it personally. Emotions can escalate quickly to fuel hostile accusations and recriminations. Acting under strong emotions can push us to fixate on the problem and not pay attention to the solution. Don’t be quick to judge; the copying may not have been malicious. It is important to try and stay calm and objective; try not to jump to conclusions.

Some people consider copying the highest form of flattery — but most people don’t.  Some companies as part of a marketing plan subtlety encourage copying as a way to spread their message or to grow a fandom.  Particularly on the Internet, people frequently want their work to be re-purposed and shared liberally so that it spreads virally.

Artists can choose to remain anonymous on the Internet when they post so that when they are copied it can be hard to find them — or when someone wants to copy what they have posted it can be impossible to ask permission.

Because the standards and types of behavior related to copying are changing, people can easily assume that’s it’s OK to copy.  They may be wrong but they also may not know that what they are doing is wrong.

In most cases copying isn’t directed at the author of the work.  It’s logically directed at using the work itself for some purpose. Examine what was copied and why:

  • Was it just an idea or did they actually copy your expression — your version of the idea? Remember, copyright protects the expression of ideas; no laws protect the ideas themselves or things like common compositions in visual art.

  • Was the part that was copied something that the original work also copies, like a well-known character?

  • Could the context of the copying suggest that the person thought they had permission to copy?

  • Was there a license or maybe just a conversation, chat or comment exchange that maybe confused the person responsible for copying?

  • Are you reacting to someone copying content that you didn’t create?  Maybe you should tell the original artist instead of confronting the person who you think made the copy. The original artist may have a completely different point of view on the situation.

If you decide you need to stop the copying, find a calm way to approach the person who made the copy. Consider how you would you respond to someone accusing you of wrongful copying if you thought you had done nothing wrong.

Regardless of what side you are on, take the time to see things from the other person’s point of view. By being understanding, we are more likely to be understood.

When you do decide to take action, and if you can, start with a conversation. On DeviantArt, that conversation can be private in the form of a Note or public in the form of a comment.  Many people include an email contact in their profiles, which can be another way to reach them.  Listen to each other and let both of you talk about the limits that should apply to the copying in question. See if there is a way for the two of you to come to an understanding about it. Of course, that may be impossible depending on the circumstances and the personalities involved.

If conversation can’t produce a resolution, then consider reporting the situation. Some websites allow you to flag content considered infringing or offensive. If the infringing work persists, you may consider contacting the website itself. On DeviantArt, every deviation page has a “Report Deviation” link in the right hand column. If the copying is a serious commercial problem, you should consider contacting a lawyer at this stage.

A formal takedown notice, only available to the copyright owner, should be a last resort. It is an official legal request by the copyright owner to the website requesting that it takedown specific infringing content. Nearly every website has a contact for takedown notices, also known as a DMCA notice (which stands for the Digital Millennium Copyright Act). Some websites, like DeviantArt, have an online form you can fill out with the necessary information. Always be sure to follow the website’s instructions carefully. Misrepresenting something on a DMCA takedown notice is illegal.

If you wish to leave a comment, click here. →




At the waterfall by Nikolaj-Arndt
In our continuous effort to improve the DeviantArt experience, we're publishing weekly Site Updates to keep members informed and to gather feedback. Below is a list of recent changes to the site, bug fixes, and feedback that was brought up by members in the last Site Update.

Change Log

  • Watch buttons now appear under deviations on the Daily Deviations page. Added by kemayo
  • For a short period, attempting to give another deviant a Premium Membership would trigger an error and would not give them the Premium Membership. Fixed by outgoingcoyote
  • It was not possible to unstore deviations in storage. Fixed by trezoid
  • When viewing your sent notes, the "Mark As..." menu had the option to mark the notes as unread, even though it would not work. Fixed by justgalym
  • Some groups would not appear on the "Submit deviation to group" modal on deviation pages. Fixed by inazar

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Thank you for the feedback on last week's Site Update

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