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The Art Theft Discussion

Fri Jul 17, 2015, 10:36 AM
Art-Theft-Cover by ProtectArt

The DeviantArt community has always been deeply concerned about art theft.

We are committed to providing a completely open conversation on this topic. With your active and constructive participation we can become a leading voice on how we adapt to the challenges of being artists on the Web.

This Journal frames the continuing conversation and concern about art theft in general on the Internet and on DeviantArt. Each section links to a more specific and expanded treatment of the topic with additional links to useful materials and readings. Your comments to this Journal will be reviewed by experts and comment threads of general interest will be linked into the expanded topic sections.

Something to keep in mind at the outset: we are all guided by a code of decency, honesty and the expression of mutual respect. So, try to be tolerant and understanding even when reviewing these materials. Ethical behavior is a reward and a duty larger than laws and rules. Sometimes people interpret right and wrong differently even when both people have the exact same good and ethical intentions. Keep in mind that everything anyone does will be right if it’s also decent and honest even if some rule of law or contract was technically broken.

Artist Creditkozispoon

Art theft is stealing a painting from a wall.

  • Sometimes the term “theft” is accurate and it always attracts attention.

  • The word “theft” can be used casually, sometimes to describe copying any part of an artwork. The term “theft” also defines actual criminal conduct and is associated to a harsh moral judgment that may go too far.

  • Stealing an object is theft. Using artwork without permission isn’t technically a “theft.” It might be copyright infringement or violate a contract.

  • Stealing an object is theft. Using artwork without permission is frequently called “theft” or “stealing.” But it might, instead, be copyright infringement or the violation of a contract that just feels like a theft.

  • More About Stealing

Artist Creditkozispoon

Not all copying is wrong.

  • Everything comes from somewhere. To some degree all people copy what other people do starting with talking, walking and eating. And, the same is true in writing, art and music. There is a limit to the originality of any artwork in any medium.

  • Basic standards of decent, respectful and honest behavior — and the law — will prevent copying when it will harm another person economically.

  • Copying can be permitted because it’s an accepted practice or sometimes because the laws directly permit it.  As an example, there is a rich history of using tracing for learning and some artists want their work to be copied.

  • Protection from copying is also time-based. Copying very old things is a way to preserve them and keep them relevant in the culture.

  • Entire fields of recognized fine art such as collage and “appropriation art” (like Andy Warhol) depend on copying and the law is favoring this development.

  • More About Taking

Artist Creditkozispoon

Copyright laws are powerful tools that protect art and artists and can prevent the misuse of artworks.

  • Copyright gives the author the exclusive right to copy, distribute, alter or base other works on his or her original work.  These rights are very broad.

  • Those who violate the rights are called “infringers” and can be made to pay money damages or can be made to stop their behavior.

  • Copyright laws also create a balance between the needs of artists to protect their work and the needs of the culture to express itself by protecting people who want to use copyrighted works for specific reasons such as criticism, comment, political speech and sometimes it protects the actual use of artwork in another artwork.

  • Copyright only protects the way an idea is expressed. It does not protect the idea. Anyone can use an idea, even if it’s original. Patent law or trade secret law could protect an idea, but these laws have strict requirements. They mostly apply to making useful things, and almost all artworks don’t qualify.

  • Every country has similar copyright laws but with many technical variations and differences. It can get complicated.

  • More About Copyright

Artist Creditkozispoon

Stock, even free stock, comes with a license. The license is a real contract.

  • On or off DeviantArt, the word “stock” means the artist or company intends other people to use a photograph or another form of artwork — and it always means that there are conditions to using it.

  • The conditions for stock use could be very open, such as “use it anyway you want, at anytime, for anything” or they could be very restricted specifying size, uses, changes, payment, credit or all of these.

  • Every time someone gives you permission to use a work it’s a contract and you need to be as clear as possible about how far that permission goes.

  • If you use stock and violate a condition, then you are breaking a contract and maybe also engaging in copyright infringement.

  • More About Permission

Artist Creditkozispoon

Fan art as love is different than fan art for sale.

  • Fan art usually takes characters, situations and sometimes directly copies artwork from all kinds of media including films, television, comics, books, or games. Typically, the original version is protected by copyright laws.

  • Most major media companies that control the properties most fan art celebrate are OK with fan art made not for profit. But, the companies will rarely admit this because it would compromise their need to protect the properties when they have to. This “fan art understanding” is entirely within the control of the owner of the property and they can withdraw it when they like.

  • When fan art is sold in multiple copies it tends to become a problem for these companies, which is a problem for artists as well. It can be a violation of both copyright law and trademark law.

  • Fan artists recognize that there are also ethical issues in reproducing and selling fan art.  It is considered different than selling an original drawing or painting that is fan based.

  • It is a good practice to label fan art if there is any risk that someone would confuse it as official, licensed art. It is never OK to label fan art as coming from the original owner or creator.

  • More About Fan Art

Artist Creditkozispoon

“Moral Rights” protect artists from others harming their artwork and protects artists from people taking false credit.

  • The right of “integrity” protects against harmful damage to artworks and permits the artist to step in to protect his or her art even after a work has been sold or licensed.

  • The right of “attribution” defends artists against people taking false credit for the artist’s work and against people who claim something was made by a particular artist when it wasn’t.

  • Not every country has these laws or they have very weak ones. The U.S. has very weak protections but they do apply to artworks published in limited editions of 200 copies or less. France and Germany have the strongest protections.

  • There should be an obvious ethical obligation not to claim false credit and not to damage another person’s artwork.

  • More About Moral Rights

Artist Creditkozispoon

Ways to protect your art on the Internet.

  • Putting your own work on the Internet is not giving it away. A blog or a website is a display or a distribution of your work. But, it isn’t a statement that other people can use the work or copy it.

  • A website or blog’s terms and conditions are a contract that defines what the site and what people who visit the site can do with your work — read it and decide.

  • Automatic copyright protection is available to all new works of art and in most countries you do not have to place a copyright notice on the artwork.

  • Placing lower resolution files for display on the Internet is an excellent technique to prevent many commercial uses of artwork.

  • Sites like DeviantArt offer watermark options on submission.

  • Post with a clear notice saying what people can or cannot do with your work to remind your viewers that they have only limited rights.

  • More About Protection

Artist Creditkozispoon

Resolve disputes with a conversation, if you can.

  • Misunderstandings about using artworks and taking credit for things that may go too far are very common. Use the messaging system or comments to give people the chance to do the right thing after they find out what the right thing should be.

  • If messaging and conversation doesn’t work, consider using a website reporting function, contacting the administrators, filing a formal copyright takedown request or contacting a lawyer for assistance.

  • More About Resolving Disputes





Stealing

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

“Art Theft” and “Plagiarism” are now common ways to say that someone has copied something from your creative work. Many on DeviantArt consider any taking from an artwork to be “art theft” whether or not as a technical, legal matter the theft fits into another category of behavior as well such as copyright infringement. Whatever term is used, it certainly feels like stealing.

“Art Theft” as a crime involves physically taking, stealing, a physical artwork, which could be a canvas or a sculpture or even a hard drive full of digital files. “Theft” describes a criminal act that can result in imprisonment. Technically, it does not involve copying creative expression. When someone copies your art it can feel like a crime. It’s certainly wrong morally and it might be copyright infringement. But accusing someone of a “theft” is a serious accusation that may be too extreme.

“Plagiarism” involves using someone else’s material, usually something written, without credit or citation. It is not a legal term. Plagiarism can occur in fan fiction, poetry, speeches, academic papers and news articles. It is usually used to describe a form of dishonesty but it doesn’t describe something that is necessarily unlawful.

Under the law, taking or using someone else’s creative expression is typically “Copyright Infringement,” which is, truthfully, a lot more complicated than just saying something was “stolen.” Copyright infringement is unlawful but not criminal, unless done on a huge commercial scale (like selling or providing copies to a very large group of people).

There are plenty of things that artists do with work from other artists that are just plain wrong no matter what you call them and whether or not the law thinks they are wrong. At the same time, there are plenty of ways that artists express themselves using what has been made before which aren’t at all wrong.

Take the Eiffel Tower. Under French law it is a protected work of architecture and as such the agency that manages the Tower can stop you from making a “copy.” But if you walk the left bank open air galleries in Paris there would be hundreds of drawings and paintings of it. Those artists are just painting what they see. They certainly don’t think it is an “art theft.” In many of those drawings, the Eiffel Tower will probably look like a copy of another drawing or a tracing of a photograph but the artists would not object to those similarities because there are only so many ways to make a good drawing of the structure.

French law also protects the public light show splashed on the Eiffel Tower at night. Selling a photograph of the Eiffel Tower taken at night with some of those lights shining on it is considered copyright infringement. Almost nobody would believe this and only a copyright nerd would agree with it.

The Eiffel Tower is also a trademark. You can’t make little souvenir versions, or put the image on a cereal box, or film it commercially without paying a fee.

Posting a scan or photo of an 18th century painting on DeviantArt and putting your own name under it as the artist is wrong. But there is no law that says it’s illegal to do that in most countries. Taking an old photograph made in 1890 and colorizing it could be a copyright infringement but almost no one on DeviantArt would think it was wrong.

Of course, there are absolutely clear situations of “Art Theft” and of “Plagiarism.” But language stops working when you don’t know what it means. And we need to keep in mind that “Art Theft” and “Plagiarism” carry strong social stigmas and when used inaccurately can be very hurtful to others.

“Art Theft” is not an abstract or a concrete "wrong" standing on its own. It’s not like walking down the street and watching an assault and having a responsibility to report it. Art Theft depends on the perception and the intention of the person who made the work that is being appropriated, particularly in the modern era of digital distribution. Maybe the intention of placing the work onto a website meant, for the artist, that others could build on it. Certainly images placed in Instagram and videos on YouTube have as their purpose “going viral” meaning that lots of users re-post and re-purpose the content — to the delight of the originator.

It is complicated.

Artist Creditkozispoon

an example of Art Theft

St. Patrick’s Day. Boston. 1990. It’s the middle of the night. The security guard at the Isabella Stewart Gardner Museum (Boston’s art museum) receives a distress signal. Two police officers tell the security guard there is a disturbance outside and are let inside. Only, the two police officers are not police; they’ve come to rob the museum. The burglars end up stealing 13 paintings. Some paintings they take off the wall. Some paintings they cut out of the frame with a knife. In total, the thieves steal approximately $500 million worth of art, including works by Rembrant, Degas and Manet.


Watch This: Art Heist with Kobe Bryant

Art Heist with Kobe Bryant

an example of Plagiarism

St. Petersburg, Russia. 1976. Future Russian president, Vladimir Putin, is writing a paper to graduate law school. Fast forward to 2005. Two American researches get their hands on Putin’s paper. They find Putin’s paper copied a textbook written by two professors from The University of Pittsburgh. Putin did not put the lifted material in quotes, nor did he provide a citation or footnote.  Ted Kennedy, a former distinguished U.S. Senator and the brother of president John F. Kennedy, was also found to have plagiarized while at Harvard.

an example of Copyright Infringement

Dennis Morris is a British rock photographer, famous for shooting the Sex Pistols and Bob Marley. Russell Young was a British-American rock photographer, famous for shooting Bjork and George Michael. Young found one of Morris’ photos of the Sex Pistols online and made a red-tinted version. He used the same photo, created a repeating image with it, threw graffiti on top of that and then added new visual elements. Young did not know Morris took the photo; it had no copyright notice or attribution. Since Young used Morris’ photo without permission, Young was found responsible for engaging in copyright infringement.

an example of Forgery and Counterfeiting

“Eagle Standing on a Pine Tree” perhaps a 1946 ink painting by a great 20th century artist, sold at auction in China for $65.4 million but it hasn’t been picked up by the new owner and lies in a warehouse while a debate rages over whether it is a fake — a forgery or a counterfeit. It is criminally fraudulent behavior to make a forgery or a counterfeit because the work is being represented as authentic when it is not. But as a contrast, many top art collectors hire artists to make perfect “forgeries” so the original can be protected from thieves in vaults while their guests look at the perfectly fake copy hanging in the collector’s home. Because the collector knows it’s a fake, it wasn’t a crime to make it. Some artist make a good living openly creating new paintings in the exact same style and of the exact same subjects as a grand master whose works are no longer protected by copyright; and as long as they don’t try to sell them as “originals” its perfectly legal. And many museum directors have admitted that their galleries may be displaying forgeries and fakes passed off as real over many years, sometimes over centuries.

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








Taking

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

Copying can elicit strong emotions, but not all copying is wrong. While any perceived form of copying may be viewed as a personal attack, understanding when copying is permissible helps inform how we respond to copying.  Artistic practice and the law permit copying in certain instances. For example, copying is an accepted practice to perfect one’s technique and is used for all manner of reference when building an original image.

“Tracing” is a controversial topic in the art community. Some view it as a form of cheating, which inhibits artistic development. Technically, it can in many cases be copyright infringement. But tracing has a long history as a teaching tool. The Greeks, Romans, Egyptians and Chinese all used tracing. It is a useful method to absorb and pay homage to a grand master’s technique. Some drawing teachers encourage tracing.  Others feel that tracing inhibits the development of technique.

In some cultures, making a faithful and exact copy without tracing is considered an extraordinary artistic achievement. In other cultures, it could be considered forgery — a crime if the copy is passed off as the original and not a crime if the copy is simply sold without signature or representation of originality, assuming the original work isn’t still copyrighted.

At a certain level of abstraction, a lot of art is derivative. Take Raphael and Michelangelo. Raphael’s The School of Athens and the Stanze di Raffaello at the Vatican were heavily influenced by Michelangelo’s Sistine Chapel. Raphael’s own work became the subject of copying. His etching, Judgment of Paris, was copied and re-conceptualized by Manet, Monet, Picasso and many others. Did all these artists wrongfully copy each other, or were they innovating, building on the prior art or maybe showing their inspiration from a previous artwork?

Artist Creditkozispoon

The law has never protected an artist’s idea from being copied.  But the literature is full of feuds, battles and personal attacks between artists because they believe someone “stole” or “copied” an idea. Common sense would be that no one can “own” an idea because if they did we would not be able to think. Still, because ideas seem so personal sometimes, taking the idea can be seen as very harmful.

“Appropriation art” is a genre of art based on copying someone else’s artwork without permission. Collage is one example. Another is “Pop Art,” which uses contemporary imagery to comment on modern culture.

Appropriation art is very controversial in the art and legal world. On one hand, transforming existing artwork can be a powerful way to comment on art and society. On the other hand, appropriation art may be viewed as a form of creative bankruptcy or theft.

With the advance of digital tools, like Photoshop, Illustrator, Word and many others it is normal to use the technique of copying together with manipulation either for reference, collage or as part of a multi-layered work. Copying with these tools is so common, pervasive and effective that it frequently becomes impossible to deconstruct how many instances of physical copying may have taken place in the ultimate final product.

Several famous appropriation artists, frequently taking advantage of technologies permitting copying and manipulation, originally got into trouble for copyright infringement, like Andy Warhol, Jeff Koons, Shepard Fairey, Barbara Krueger and Thierry Guetta (a.k.a. Mr. Brainwash). But the law is changing as are general attitudes, and appropriation art serves as a barometer. Jeff Koons, who was repeatedly held responsible for copyright infringement in the 90s, was let off the hook in 2006. Richard Prince, another appropriation artist, was absolved of copyright infringement in 2013 after producing multi-million dollar canvasses that used another artists’ photographs of Rastafarians. Why were the outcomes different years apart? Because in the more recent cases the artists were found to have “transformed” the original, giving it a new meaning and aesthetic. This notion has been incorporated into the interpretation of Fair Use under copyright law. Maybe, too, the law is reflecting that social standards about copying are changing.

The “transformative” approach is polarizing and not adopted into the law in many countries. Some say it’s very problematic because the standard seems very subjective. A copy is a copy and that, they say, is very simple. Without objective criteria, how is someone to know what is “transformative.” Others say the “transformative” approach encourages creativity and innovation; that it acknowledges the new technological advancements in image manipulation as part of the artist’s palette as well as recognizing that all artistic expression depends on prior art and common references to content. Artists should be encouraged, in this view, to transform existing artwork so we can gain new insights into our culture and ourselves.

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




Copyright

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

Copyright laws are a set of defined rights given to artists by the government.  Copyright turns everything an artist makes, as they make it, into a protected form of property assuming what is being made is original to the artist. Copyrights protect a specific expression of an idea or concept but copyright does not protect ideas.

Copyright law protects artists from copying. That seems pretty obvious. But it’s much more than that. Copyright is made up of a group or a bundle of separate powerful exclusive rights. In U.S. law they are:

  • Reproduce the artwork.

    Only the copyright owner can allow someone to copy the artwork, whether physically or digitally.

  • Distribute the artwork.

    Only the copyright owner can distribute copies of the work, whether physical or digital.

  • Publicly display or perform the artwork.

    Only the copyright owner can decide whether to display the artwork or to make it publicly accessible on the Internet.

  • Alter the artwork.

    Only the copyright owner can permit or make changes to the original artwork.

  • Make derivate artwork.

    Only the copyright owner can permit or make additional artwork based on the original or use the artwork in another artwork.

Artist Creditkozispoon

Copyrights are also limited in a number of ways. The limits represent a balance between protecting the work that artists make so they can make a living and the interests of other people and groups who want access to the work or in some cases want to use it without needing permission from the copyright owner. This balance is necessary because copyrights protect cultural expression. Once the expression takes place it becomes part of a greater conversation that was going on before it arrived. Here are some of the limits on copyright:

  • Transfers.

    When an artist sells a copyright or one of the exclusive rights under copyright, the artist no longer has those rights. The buyer does. But if an artist sells an artwork, physically or digitally, the artist keeps the copyright unless there is a contrary agreement. So, pay attention to how you sell things — or how you buy them.

  • Limited duration.

    Copyrighted material must eventually enter the public domain — which means it is no longer protected and then free for use by anyone. For most countries, a person’s copyright lasts their entire life plus an additional 50-70 years. Artwork “created” by a corporation, like movies and comics, can last anywhere from 50 to over 100 years. Examples of public domain works include Sherlock Holmes, some of James Bond, most old fairy tales, all of the great, famous artworks older than essentially 1900.

  • Expression not ideas.

    Copyright protection only covers the expression of an idea — the way it is presented in a drawing, painting or story — not the idea itself even if the idea is really new and original. Anyone is free to draw in his or her own way a cat driving a car on Mars, even if they saw the idea in another drawing, but the artist can rely on copyright to prevent someone from making a copy of his or her specific version of that idea in his or her artwork. Another example of this: characters are just ideas unless they have full backstories and a pretty rich set of original attributes. But a drawing of a character can be protected in the form of that drawing.

  • Originality.

    Obvious forms of expression are not original to the author so they are not protected by copyright. An original drawing of a beautiful mountain is protected by copyright as a whole but the fact that the sky is a particular blue and has clouds and that there is grass in a meadow in the foreground — none of these by themselves are part of the copyright owned by that artist.

  • Fair use.

    Fair use is the idea built into the copyright laws that in some cases even if the copyright belongs exclusively to the artist, other people should be able to refer to it and in some situations use it as long as the second use is “fair.” What behavior is fair is very different depending on the person making that evaluation. It is not surprising then that “fair use” causes lots of arguments and confusion. Not every country allows fair use and each country’s laws are different. In the majority of countries copying is permitted when used for some teaching activities, criticism or for news reporting. Some countries interpret criticism broadly to permit parody and even satire. In many countries a second artist can use a small part of a copyrighted work without permission if it doesn’t hurt the value of the original. A few countries, like the U.S. and Britain, take an even more expansive approach: if the new work “transforms” the original’s meaning, aesthetic or purpose, it may be fair use even if the whole work is used.

  • Specific Limitations.

    Laws are political and some companies, organizations and interest groups have specific rights to use copyrighted works without asking permission or under special rules. For example, most websites can store and display a copyrighted work placed by another user on the website without permission — even though it’s a display or copy — but then have to take it down if the copyright owner objects. There are special rules that permit the blind to make copies of books in Braille. In the U.S. museums can display an artwork without permission from the copyright owner if the museum owns the works or if the person it borrows the artwork from owns the copy.

Artist Creditkozispoon

Copyright does not only cover artistic creations, like visual art, books, photos, music and movies. It can cover all sorts of expressive activity, like emails, status updates, and texts. As long as the communication shows a certain level of creativity or originality and it is preserved in a copy, it is copyrightable. Some copyright laws apply to every kind of copyrighted work and some are specific to music or visual art, or sound recordings.

The law is complicated. In the U.S. the copyright law in paperback form is about 200 pages long. There are major international treaties between most countries covering copyright. The EU has it own directive on copyright protection for member states. With only a handful of exceptions, every country in the world has a separate and complex copyright law.

If you need to know the answer to a copyright question, particularly before conducting a business transaction, you should strongly consider consulting a lawyer familiar with copyright law. Most lawyers are not very familiar with complex copyright law questions so you should find a specialist.

Artist Creditkozispoon

It is also important not to confuse copyright as being about the rights of an artist.  Copyright is a set of laws designed to protect creative works and the people who own them. It starts with the artist because the copyright first belongs to the author of the work as it is being made. But then the work and the copyright can be sold or licensed; then someone who is not the artist is in control. This is a powerful concept. Record companies, not music artists, are the ones who sued people who downloaded songs without their permission. Publishers and film companies buy copyrights and then they decide what to charge people, whether to make a movie or sell the book — not the artists.

When an artist sells or licenses a copyright interest he or she is transferring important legal protections as well as rights in the artwork. It is one important reason that art has value to a buyer and to a seller.

Someone or a company that violates a copyright is called an “infringer.” Copyrights deliver very significant enforcement tools for the owners. You can sue for damages caused by a copyright infringement — what the owner lost because of the infringement. In some countries you also can recover the profits made by the infringer. You can ask for a court order forcing the infringer to stop distribution or copying of the work. You can also, under U.S. law and similar provisions in other countries, request and require a website to remove a copyrighted work or an infringing work if you are the copyright owner.

DeviantArt has a specific Copyright Policy, which includes instructions for copyright owners who want to issue a request to have some one else’s work removed because it infringes their works. This form of notice is called a DMCA Takedown Notice and is further explained in the Copyright Policy.

If you would like information on how and when to register a copyright in the United States, the Copyright office has a good series of information booklets.

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




Permission

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

We start with the idea that pretty much everything you use in a creative work that doesn’t come originally from you and that comes from someone else must be used with the permission of the original owner.

Every time you use someone else’s work with their permission, it comes with a license. Stock, even free stock, clearly falls into the category of creative content that is licensed. The same is true when someone uses your work with your permission even if it isn’t stock. The license is frequently a legally binding contract. To be a “contract” it doesn’t have to be in a formal document or in a signed writing and it can even be just implied by behavior. Violations of contracts that relate to creative content can have special consequences like turning the person who exceeds the scope of the license into a copyright or trademark infringer.

DeviantArt is a permission society. In extraordinary ways full of generosity, members go out of their way to help other members and to share creative materials with each other. By learning about licensing, you begin to appreciate that the permissions given when sharing, even on DeviantArt, do have limitations and it is very important to pay attention to what someone is saying or what they mean when they give permission.

If you understand the terms of the license you are receiving or giving, you can avoid unfortunate misunderstandings, potentially significant economic consequences as well as, ultimately, legal repercussions. The failure to follow the terms of a license for a stock photo, for example, can also damage your reputation with clients and lead to embarrassments if the work has to be removed. It’s your creative work and your reputation. It is worthwhile to take the time to understand how licenses work.

A license gives someone permission to use someone else’s work subject to conditions. Not all licenses are the same because the conditions for the licenses can be so varied. Some licenses are broad, allowing anyone to use the work for any purpose. Others are really narrow: for example, only allowing the use of an image on the web in a low-resolution version.

Here are some common elements found in licenses of creative content. None of these are automatic. It’s up to the people creating the relationship to sort through what they mean in the license they are making together:

  • Payment.

    Many licenses require payment. Sometimes, this can be a one-time payment. Sometimes, it involves paying royalties over time. Payments or royalties can also be tiered — for example, the license can contain an actual schedule of the fees that apply for different types of uses.

  • Attribution/Credit.

    Some licenses require you to credit the original artist or source. A license can also dictate the location and size of the credit or require a copyright notice in a specific form. Some licenses require that you indicate or report back on how you used the licensed work (even if it is stock used only for reference and not immediately visible in the second work).

  • Scope.

    Some licenses restrict how you can use the work. Sometimes, the license permits any use, as long as it is not commercial. Some may limit which rights are granted to the user, like permitting reproduction but not distribution. Some may dictate the context, like prohibiting use in something distasteful, obscene or hateful. Others can specify what can be done to the image such as not permitting the image to be cropped or otherwise altered.

  • Place.

    Some limit where the work can be distributed, like appearing only on a social site, only for the web, or for use only in a specific project.

  • Size.

    Many licenses limit the size of the image being licensed. This happens naturally when the image is provided on the Web as a download — the license attaches to the size of image in the download. If you were to ask for a larger size image, the price and other terms might change.

  • Duration.

    Some licenses give you permission for a limited period of time. Once that time is over, you can no longer use the work.

  • Exclusive or Non-Exclusive.

    Most permission-based licenses result in what the law would classify as a “non-exclusive” license.  This means that the person giving you permission to use a creative asset is free to license the exact same image to anyone else even if it is for the exact same type of use in the license you received. An “exclusive” license is the opposite:  the person who gives the license can’t license another person for the same thing. The exclusivity can apply to some parts of the license, such as duration or scope. Or the exclusivity could apply forever and for everything.

  • Not Transferable.

    Most licenses of creative content are personal.  When you license an image you are generally given permission to use the image in particular ways for yourself but you can’t pass on the permission to someone else. So for example, even though you might be licensed to sell a digital work that used the licensed image in some fashion, you can’t re-sell the image you licensed.

  • Representation of Ownership.

    When you license a work from someone else it’s a good idea to have her or him tell you that they actually have the right to give you the license; for example that they are the copyright owner and/or author of the work; that it is original to them; and/or that they have the right to give the license. In many cases, if someone licenses to you an image that they don’t own, the actual owner can come after you as well.  The person licensing the image may only be able to make some representations of ownership. For example, a license for a cosplay image involves the costume, the model, the photographer and the company that owns the character being cosplayed. So, it’s unlikely the photographer alone can give you a license for all of the rights you might want.

Permission
Artist Creditkozispoon

When you find an image on the Web or IRL, the default is that you do not have any permission to use the image in any way other than looking at it (or holding it, maybe). But if, for example, the image has a download button or a social web share button next to it, then the button is a form of permission. Still, it could be very difficult to figure out what that permission actually means and how far it goes.

Keep in mind that the scope of the permission will tend to be very narrow if it comes out of casual behavior instead of from a more detailed statement from the owner. If someone says to you, “go ahead and download it” then from a permissions point of view all you can do is download the image. The owner may not have intended to let you re-post it or use the image as stock.

Some communities establish their own social rules around the use of content. The Adoptables community, the Stock community and the Horse community on DeviantArt are examples. These rules can become part of an implied license or part of the actual license and as such they become part of the contract covering your use of the work. As a result, it’s a good idea to learn what the rules are. Frequently they appear on user pages in Journals.

DeviantArt also gives members the ability to declare their license terms and permissions up front as part of the artist’s comment area under the deviation. This is a better practice than writing a general Journal because the comment is closer to the image.

Many creative people use the Creative Commons licensees. We have a link to Creative Commons below and its explanation of its licenses. They come in different types designed to give permission for uses with or without credit; with rights just for the web or for all uses; for only non-commercial or also for commercial uses; and, with or without the right to “re-mix” the work. DeviantArt allows users to select a Creative Commons license on submission.

When you upload your content to a website, you frequently are asked to agree to the website’s Terms of Use.  Those Terms usually create a license from you to the website. If you’ve read this far you can tell it’s important to understand the terms. Some websites, like DeviantArt, write their licenses narrowly, making sure you retain as much control as possible. Other websites write very broad licenses, and they obtain rights beyond what’s necessary for the website to operate. A controversial example is when websites claim to own the content that users upload to the site.

Finally, there are situations where you may think you don’t need a license or permission. For example, using someone’s digital copy of a very old panting or of an antique. But if the copy shows any original contribution from the person who made the copy, you would need permission. There are other exceptions discussed in this series such as “fair use” under copyright. Even “fair use” is a form of limited permission, put into the law, to use a work in a way that would otherwise require specific permission.

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Some Sample Licensing Journals
From Deviants:


Horse Community

  1. Breeding Rules


Adoptables Community

  1. Adoptables Rules

Some Sample Terms of Service:


Read More On This Topic

  1. Creative Commons
  2. Stock




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