Post by Mr. Pooka on Mar 9, 2020 16:06:21 GMT -5
Copyright, 'Art Theft', Fan Art, 'Cosplay', Trademarks, Stealing... There is a lot of loaded information, preconceived notions and misinformation on all of these related topics. I'd like to explain were we land on this messy pile of legal jargon, artist's rights and general 'Be the best we can be' participants in art world.
What I don't want to do is retype and reword tons of great information already out there in a giant block of text that I couldn't force anyone to read. I'm going to provide a bunch of links to properly prepared and very well explained information on the topic and then add a few more succinct notes and interpretations and how they affect what we do here.
If you would like to get the basics of Art Copyrights you can start right here at Deviantart... DA Copyright Info It's dense but brief and to the point.
Now this is where you find the good stuff though... DeviantArt Art Theft Discussion. There are many many pages and links and even some videos that are some of the best resources on the web for this type of information.
Fun Fact! Art Theft is really the physical act of stealing art... like sneaking into a museum and stealing the Mona Lisa. What many people call Art Theft online is really actually Copyright Infringement!
There are a lot more sites out there that can get a lot more dense and jargony. Plus it needs to be noted that We're based in Canada and Copyright rules are NOT the same in different countries!
Now there are a few reasons why I'm going deep into this particular information because of how it affects Sphinxes. The first and most important is what Pony Island refers to as 'Cosplay' adoptables and art. This is a part of the culture of adoptables on PI and is still actively encouraged there. We have (wrongly) made cosplay Sphinxes in the past. It's easy to assume that if everyone else is doing it, it must be OK.
The Problem with this form of cosplay is that it IS copyright infringement. ALL fan art of someone's intellectual property is copyright infringement. That's a pretty harsh dose of reality and already many people reading it are wondering if I'm right (especially if you didn't read all the info I provided in the links above!) but it is true and where we have to start on the road to understanding what we can and can't do. There is some hope and some common sense to add that will give us a bit of light and show what we can actually do though...
Fan Art is everywhere so are all of those people committing copyright infringement? Well yes and no. Most large entertainment business love (FREE) fan art and provide simple use licences which are easy to find. Most of those companies also love to make money and they don't care (and remember, not caring doesn't equal totally legal) about the small stuff. (This might be a timely reference... a few months ago you could find a TON of 'Baby Yoda' toys and crafts on Etsy because Disney did not have them in production yet. It fed the hunger of fans and kept the character in the zeitgeist. Parallel to rolling out their own line of 'The Child' toys the DMCA's started flying.) Fan art is still well loved by most companies but only under their own personal licences in which it is usually made clear that you must be doing fan art for FREE. These licences vary from company to company and some carry some pretty interesting fine print. (For example you can draw free Pokemon all day long but you are also giving Game Freak a free licence to use YOUR ART any way they see fit!) Most sites also allow some sort of compensation and are not to nitpicky about it. (For example, Wizards of the Coast lets you create free Fan Art and host it on an add supported site, like Youtube or allow you to take donations for your work through sites like Patreon. So you can't sell it directly but still generally profit from it. Grossly talking of advantage of this would still be subject to some sort of censure or legal action though.)
Fan art has also long been a part of Conventions in Artist Alleys but this is being cracked down on seriously atm. Many people just never read the fine print or make wild presumptions... Check out this interesting article on the Topic...Artist Alley and then read the fine print in the Artist Alley forms for ComicCon ComicCon if you are interested.
So what does that mean for Sphinxes? For the most part we will not be doing any sort of Cosplay Sphinxes or otherwise using copyrighted material... with exceptions! What we won't be doing is selling Copyright material owned by other companies (which includes Art Commissions). That being said, there is a lot of cool copyrighted stuff out there that we are allowed to use by following the various rules and licences. When we do, it will be for free and fun.
Any time we may create something that is considered Fan Art or uses someone else's IP it will be marked as UNTRADEABLE and while you can use it for fun you can never use it in any way to profit from it, including trading it for anything including Sphinx stuff. (If for some reason you really don't want to own something like this in the future you MAY give it back to us and we'll find a good new home for it, for free!)
Sphinxes that are UNTRADEABLE due to fan art are meant for fun and cannot be used for any sort of profit or trade. Also they are subject to whatever licences the owners of the IP use and may be subject to change in the future. For example, if Pokemon Legal changes their mind and says that certain types of fan art (or say something weird and specific, like you can never have a Pikachu in the same picture as a Cat) we will have to follow those changes. We might gift some or give some a way for fun because its fan art but it just can't be sold or traded for any reason.
Here is some Real World examples...
Dungeons and Dragons - We will not directly copy a Specialty Priests costume from a Forgotten Realms Religion and then have that costume as a permanent costume you can buy. We could use some of the copyrighted religious symbols to put on a costume or shield or background but only if we did this for free AND the Sphinx it is on will become permanently UNTRADEABLE. You could also, at any time use totally unrelated items and colour combinations that already exist to make your character very close to what you want anyways! (Extra Note: Wizards does have a separate and different licence for selling their own IP through their own Game Masters Guild site, where you could totally draw Illithids and Beholders and Specialty Priests for your own books and sell them for a profit... but that's a whole different thing!)
Wizards of the Coast
Pokemon - We will not make a Pokemon pet to sell or put a Pikachu on a Knights Shield (as cool as that sounds) and have it as an item in our shop. We might make a Pokemon pet for fun, or give a Netjer a Pokemon T-shirt to give away for free for a special game or day (creating another UNTRADEABLE Sphinx). You could also use our traits to build yourself a Pokemon likeness as well!
Pokemon
I might add some more Real World Examples as we want or need...
There is one other note that fits in here as well, Generic 'just about like' sort of costume and items and creatures. For the most part these are usually cool and meant for fun and when used properly are perfectly fine. Some websites like Subeta are great examples of this and they often go out of there way to make fun and witty 'knock offs' which are both fine and fun! Plenty of fictional characters can be easily brought to mind (or real world cosplayed!) with a simple collection of off the rack items. Simply putting those items together doesn't infringe on copyright. Buying a cool hat, bullwhip, leather jacket and satchel can turn you into a pretty cool Indiana Jones without stepping on a copyright landmine... Wearing the costume and making an Indiana Jones Movie to put on YouTube for profit will land you in trouble.
School Robes? check. Pet Owl? check. Magic Wand? sure thing. Scarf? easy peasy. Broomstick? done. Gryffindor Crest? everything changes here. All of the earlier stuff is generic and up until that point you had a pretty good Magic School Student, but when (or if) we add the copyrighted Gryffindor Crest this would become a fan work, subject to a lot more rules and if we allowed it that Sphinx would become UNtradeable. Now if we made up our own houses (say wolpertinger house!) that should still be all good.
Sites that do allow the small scale sale of Fan Art Like PI (tiny, pay sites hidden from the view of the general public) will probably never be targeted by a copyright lawsuit (except perhaps for their MLP fan art which has become incorporated into some of their designs) and we will probably never see a DMCA for an older cosplay Sphinx that we may have (wrongly) charged money... but we are and never will be the people who do the wrong thing just because we can get away with it.
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One last note (for now!) about copyrights and Sphinxes. Most art of antiquity is absolutely free to reuse however anyone wants or sees fit. Any Egyptian Stature, Hieroglyph, artifact, piece of jewelry, etc are all free for the public to copy, use, reinterpret as you wish. (The same goes for most Greek, Roman, Iranian, Japanese, Babylonian, etc etc ancient art.) Most countries in the world have a time limit based on the artist death of when something becomes open/public domain and obviously most ancient art counts. That being said there are a couple of technical notes.
Art created using ancient art is protected. King Tutankhamen mask appearance and design is open domain. If I make an oil painting of that mask, my work is copyright protected... Pooka could create a similar Sphinx death mask from the original but you cannot copy her work though you could create your own from the original mask if you wanted to. It should be noted that several museums have tried (and lost) legal copyrights that they have tried to establish based on this... for Example the British Museum has made exact replica jewelry and then tried to copyright the design... Technically you could not copy their replica jewelry already but it cannot (and never does) stand up because anyone CAN copy the original jewelry.
Art created using ancient art extends to photographs. Unless there are photographs of an artifact that have been provided to the public as a free resource you could still be accidentally stealing. For example the clay soldier statues found in China are totally public domain... but they are a fairly recent discovery and most likely you know about them because you watched a copyrighted program or saw copyrighted museum pictures. Taking your own picture or finding an open source image is more tricky and technically you would copying someone else's art if used some of these images as a basis for your art. Virtually impossible to prove, but a noteworthy technicality.
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Extra Credit Topic! Photoshop Brushes...
I was going to add a whole long section here because several sites do have Brush Policies. This is a tricky one but I'll try to sum it up in brief.
Officially Adobe shifts any liability from using brushes off of themselves by not creating or enforcing any sort of Digital Rights for file types that they have created (like .abr files often used for brushes). Essentially there is no rules about what can and can't be done with them. That being said they have also made it very easy to make your own Brush files and share/sell them, which in turn makes it easy for people to use Copyrighted materials (either their own or others) and easily distribute these brushes. Ethically speaking, for the most part, you must simply be careful about the brushes you use and the places they are sourced from. Many brush creators have their own licences but really these would never hold up in a court of law (at the moment, digital law changes every 10 seconds) but like I mentioned above, there is a difference between doing what is right vs. doing what you think you can get away with.
I can take some mushrooms out of the fridge right now and make some pretty cool brushes but someone else has probably already done all the work for me. It wouldn't hurt to send them $1 just to save me hours of work for the same end result and encourages them to continue making similar brushes for me to use. Take some even more technical items like nuts, bolts and screws from a toolbox. Anyone can make virtually identical brushes out of those and there would be no way to differentiate between them for some sort of copyright.
To add to this confusion, many people simply copy other peoples brushes and then redistribute them making finding the true source difficult, especially if they brushes have been modified. So finding a brush on a free site doesn't necessarily mean you are not using a brush in ways the original creator would like.
Another layer of copyright confusion is the copyright of what might have been used as an original source for the brush. Just taking a picture of Micky Mouse or one of our Sphinx Samples and turning them into a Photoshop brush does not make those images free to use! Now those are easily recognizable art pieces but could you tell if someone made a brush from spilled paint vs someone who made a brush from a Jackson Pollock painting? What if someone takes a picture of a copyrighted sculpture, then sells that picture as stock art and then someone buys the stock art and uses it to make a Photoshop brush? Who is to blame in that chain when everyone thinks what they are doing is OK, but isn't?
Even though I've tried to clear some of this up, Photoshop brushes are still (and will be for a long time to come) a bit of a murky area and its best to use your best judgment when and how you use them... It should also be noted that the end users have the easiest time navigating this stuff (because there is almost no way you can legally use them wrong) but these grey areas affect brush creators in a much more dramatic way... and if it scares off brush creators then we will have less toys to play with and tools for our creations.
Adobe themselves work really hard to not have a policy about this and never have any sort of official FAQ or any legal information on this topic which does make things hard for anyone to come up with a clear interpretation. That being said, you can infer their stance from various help posts like this one ... Can I Sell Photoshop Resources
One last note. Its easy to make your own Photoshop brushes! It can be super fun and simple to create your own collection that you know exactly where they came from, (-8
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(Extra Note, as many of original Sphinx Stalkers come from PI I need to note that their rules will mess you up if you try to apply them to any place except PI itself, where of course, whatever rules they make up for themselves apply to themselves. There are incorrect facts and terminology, 'strict rules' about 'art theft' while on the same page they encourage copyright infringement... several parts of their rules are well intentioned but just 100% wrong and just plain made up instead of researched.)
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I'd also like to add, at the end here, that this is still a bit of a living document/rule post. Pooka has Art Legal credits from her time at school. I have some legal education as well but mostly Social Work rules and protecting people, though I've spent way to many hours of my life making sure I understand this stuff because we care about doing things right. That being said, we are far from lawyers... but most of this information is free and easy for you to find if you are curious or in need! Laws change, rules change, insights might happen... We might update, change, rearrange this information if new things come up or change! Also, just because I mention something above doesn't mean it supersedes the rules of different websites we might participate on. I can say anything I want about topics like ancient art and using brushes but if a site we want to host a Sphinx event on has a different rule for whatever reason we'll follow those rules as best as possible. (In a common sense way, I mean. We wouldn't defy copyright laws just because they say so, but we might refrain from using even home made photoshop brushes on their site because they have a rule against them.)
What I don't want to do is retype and reword tons of great information already out there in a giant block of text that I couldn't force anyone to read. I'm going to provide a bunch of links to properly prepared and very well explained information on the topic and then add a few more succinct notes and interpretations and how they affect what we do here.
If you would like to get the basics of Art Copyrights you can start right here at Deviantart... DA Copyright Info It's dense but brief and to the point.
Now this is where you find the good stuff though... DeviantArt Art Theft Discussion. There are many many pages and links and even some videos that are some of the best resources on the web for this type of information.
Fun Fact! Art Theft is really the physical act of stealing art... like sneaking into a museum and stealing the Mona Lisa. What many people call Art Theft online is really actually Copyright Infringement!
There are a lot more sites out there that can get a lot more dense and jargony. Plus it needs to be noted that We're based in Canada and Copyright rules are NOT the same in different countries!
Now there are a few reasons why I'm going deep into this particular information because of how it affects Sphinxes. The first and most important is what Pony Island refers to as 'Cosplay' adoptables and art. This is a part of the culture of adoptables on PI and is still actively encouraged there. We have (wrongly) made cosplay Sphinxes in the past. It's easy to assume that if everyone else is doing it, it must be OK.
The Problem with this form of cosplay is that it IS copyright infringement. ALL fan art of someone's intellectual property is copyright infringement. That's a pretty harsh dose of reality and already many people reading it are wondering if I'm right (especially if you didn't read all the info I provided in the links above!) but it is true and where we have to start on the road to understanding what we can and can't do. There is some hope and some common sense to add that will give us a bit of light and show what we can actually do though...
Fan Art is everywhere so are all of those people committing copyright infringement? Well yes and no. Most large entertainment business love (FREE) fan art and provide simple use licences which are easy to find. Most of those companies also love to make money and they don't care (and remember, not caring doesn't equal totally legal) about the small stuff. (This might be a timely reference... a few months ago you could find a TON of 'Baby Yoda' toys and crafts on Etsy because Disney did not have them in production yet. It fed the hunger of fans and kept the character in the zeitgeist. Parallel to rolling out their own line of 'The Child' toys the DMCA's started flying.) Fan art is still well loved by most companies but only under their own personal licences in which it is usually made clear that you must be doing fan art for FREE. These licences vary from company to company and some carry some pretty interesting fine print. (For example you can draw free Pokemon all day long but you are also giving Game Freak a free licence to use YOUR ART any way they see fit!) Most sites also allow some sort of compensation and are not to nitpicky about it. (For example, Wizards of the Coast lets you create free Fan Art and host it on an add supported site, like Youtube or allow you to take donations for your work through sites like Patreon. So you can't sell it directly but still generally profit from it. Grossly talking of advantage of this would still be subject to some sort of censure or legal action though.)
Fan art has also long been a part of Conventions in Artist Alleys but this is being cracked down on seriously atm. Many people just never read the fine print or make wild presumptions... Check out this interesting article on the Topic...Artist Alley and then read the fine print in the Artist Alley forms for ComicCon ComicCon if you are interested.
So what does that mean for Sphinxes? For the most part we will not be doing any sort of Cosplay Sphinxes or otherwise using copyrighted material... with exceptions! What we won't be doing is selling Copyright material owned by other companies (which includes Art Commissions). That being said, there is a lot of cool copyrighted stuff out there that we are allowed to use by following the various rules and licences. When we do, it will be for free and fun.
Any time we may create something that is considered Fan Art or uses someone else's IP it will be marked as UNTRADEABLE and while you can use it for fun you can never use it in any way to profit from it, including trading it for anything including Sphinx stuff. (If for some reason you really don't want to own something like this in the future you MAY give it back to us and we'll find a good new home for it, for free!)
Sphinxes that are UNTRADEABLE due to fan art are meant for fun and cannot be used for any sort of profit or trade. Also they are subject to whatever licences the owners of the IP use and may be subject to change in the future. For example, if Pokemon Legal changes their mind and says that certain types of fan art (or say something weird and specific, like you can never have a Pikachu in the same picture as a Cat) we will have to follow those changes. We might gift some or give some a way for fun because its fan art but it just can't be sold or traded for any reason.
Here is some Real World examples...
Dungeons and Dragons - We will not directly copy a Specialty Priests costume from a Forgotten Realms Religion and then have that costume as a permanent costume you can buy. We could use some of the copyrighted religious symbols to put on a costume or shield or background but only if we did this for free AND the Sphinx it is on will become permanently UNTRADEABLE. You could also, at any time use totally unrelated items and colour combinations that already exist to make your character very close to what you want anyways! (Extra Note: Wizards does have a separate and different licence for selling their own IP through their own Game Masters Guild site, where you could totally draw Illithids and Beholders and Specialty Priests for your own books and sell them for a profit... but that's a whole different thing!)
Wizards of the Coast
Pokemon - We will not make a Pokemon pet to sell or put a Pikachu on a Knights Shield (as cool as that sounds) and have it as an item in our shop. We might make a Pokemon pet for fun, or give a Netjer a Pokemon T-shirt to give away for free for a special game or day (creating another UNTRADEABLE Sphinx). You could also use our traits to build yourself a Pokemon likeness as well!
Pokemon
I might add some more Real World Examples as we want or need...
There is one other note that fits in here as well, Generic 'just about like' sort of costume and items and creatures. For the most part these are usually cool and meant for fun and when used properly are perfectly fine. Some websites like Subeta are great examples of this and they often go out of there way to make fun and witty 'knock offs' which are both fine and fun! Plenty of fictional characters can be easily brought to mind (or real world cosplayed!) with a simple collection of off the rack items. Simply putting those items together doesn't infringe on copyright. Buying a cool hat, bullwhip, leather jacket and satchel can turn you into a pretty cool Indiana Jones without stepping on a copyright landmine... Wearing the costume and making an Indiana Jones Movie to put on YouTube for profit will land you in trouble.
School Robes? check. Pet Owl? check. Magic Wand? sure thing. Scarf? easy peasy. Broomstick? done. Gryffindor Crest? everything changes here. All of the earlier stuff is generic and up until that point you had a pretty good Magic School Student, but when (or if) we add the copyrighted Gryffindor Crest this would become a fan work, subject to a lot more rules and if we allowed it that Sphinx would become UNtradeable. Now if we made up our own houses (say wolpertinger house!) that should still be all good.
Sites that do allow the small scale sale of Fan Art Like PI (tiny, pay sites hidden from the view of the general public) will probably never be targeted by a copyright lawsuit (except perhaps for their MLP fan art which has become incorporated into some of their designs) and we will probably never see a DMCA for an older cosplay Sphinx that we may have (wrongly) charged money... but we are and never will be the people who do the wrong thing just because we can get away with it.
-------------------------------------------------------------------
One last note (for now!) about copyrights and Sphinxes. Most art of antiquity is absolutely free to reuse however anyone wants or sees fit. Any Egyptian Stature, Hieroglyph, artifact, piece of jewelry, etc are all free for the public to copy, use, reinterpret as you wish. (The same goes for most Greek, Roman, Iranian, Japanese, Babylonian, etc etc ancient art.) Most countries in the world have a time limit based on the artist death of when something becomes open/public domain and obviously most ancient art counts. That being said there are a couple of technical notes.
Art created using ancient art is protected. King Tutankhamen mask appearance and design is open domain. If I make an oil painting of that mask, my work is copyright protected... Pooka could create a similar Sphinx death mask from the original but you cannot copy her work though you could create your own from the original mask if you wanted to. It should be noted that several museums have tried (and lost) legal copyrights that they have tried to establish based on this... for Example the British Museum has made exact replica jewelry and then tried to copyright the design... Technically you could not copy their replica jewelry already but it cannot (and never does) stand up because anyone CAN copy the original jewelry.
Art created using ancient art extends to photographs. Unless there are photographs of an artifact that have been provided to the public as a free resource you could still be accidentally stealing. For example the clay soldier statues found in China are totally public domain... but they are a fairly recent discovery and most likely you know about them because you watched a copyrighted program or saw copyrighted museum pictures. Taking your own picture or finding an open source image is more tricky and technically you would copying someone else's art if used some of these images as a basis for your art. Virtually impossible to prove, but a noteworthy technicality.
--------------------------------------------------------------------------
Extra Credit Topic! Photoshop Brushes...
I was going to add a whole long section here because several sites do have Brush Policies. This is a tricky one but I'll try to sum it up in brief.
Officially Adobe shifts any liability from using brushes off of themselves by not creating or enforcing any sort of Digital Rights for file types that they have created (like .abr files often used for brushes). Essentially there is no rules about what can and can't be done with them. That being said they have also made it very easy to make your own Brush files and share/sell them, which in turn makes it easy for people to use Copyrighted materials (either their own or others) and easily distribute these brushes. Ethically speaking, for the most part, you must simply be careful about the brushes you use and the places they are sourced from. Many brush creators have their own licences but really these would never hold up in a court of law (at the moment, digital law changes every 10 seconds) but like I mentioned above, there is a difference between doing what is right vs. doing what you think you can get away with.
I can take some mushrooms out of the fridge right now and make some pretty cool brushes but someone else has probably already done all the work for me. It wouldn't hurt to send them $1 just to save me hours of work for the same end result and encourages them to continue making similar brushes for me to use. Take some even more technical items like nuts, bolts and screws from a toolbox. Anyone can make virtually identical brushes out of those and there would be no way to differentiate between them for some sort of copyright.
To add to this confusion, many people simply copy other peoples brushes and then redistribute them making finding the true source difficult, especially if they brushes have been modified. So finding a brush on a free site doesn't necessarily mean you are not using a brush in ways the original creator would like.
Another layer of copyright confusion is the copyright of what might have been used as an original source for the brush. Just taking a picture of Micky Mouse or one of our Sphinx Samples and turning them into a Photoshop brush does not make those images free to use! Now those are easily recognizable art pieces but could you tell if someone made a brush from spilled paint vs someone who made a brush from a Jackson Pollock painting? What if someone takes a picture of a copyrighted sculpture, then sells that picture as stock art and then someone buys the stock art and uses it to make a Photoshop brush? Who is to blame in that chain when everyone thinks what they are doing is OK, but isn't?
Even though I've tried to clear some of this up, Photoshop brushes are still (and will be for a long time to come) a bit of a murky area and its best to use your best judgment when and how you use them... It should also be noted that the end users have the easiest time navigating this stuff (because there is almost no way you can legally use them wrong) but these grey areas affect brush creators in a much more dramatic way... and if it scares off brush creators then we will have less toys to play with and tools for our creations.
Adobe themselves work really hard to not have a policy about this and never have any sort of official FAQ or any legal information on this topic which does make things hard for anyone to come up with a clear interpretation. That being said, you can infer their stance from various help posts like this one ... Can I Sell Photoshop Resources
One last note. Its easy to make your own Photoshop brushes! It can be super fun and simple to create your own collection that you know exactly where they came from, (-8
-------------------------------------------------------------------------------------
(Extra Note, as many of original Sphinx Stalkers come from PI I need to note that their rules will mess you up if you try to apply them to any place except PI itself, where of course, whatever rules they make up for themselves apply to themselves. There are incorrect facts and terminology, 'strict rules' about 'art theft' while on the same page they encourage copyright infringement... several parts of their rules are well intentioned but just 100% wrong and just plain made up instead of researched.)
--------------------------------------------------------------------------------------------
I'd also like to add, at the end here, that this is still a bit of a living document/rule post. Pooka has Art Legal credits from her time at school. I have some legal education as well but mostly Social Work rules and protecting people, though I've spent way to many hours of my life making sure I understand this stuff because we care about doing things right. That being said, we are far from lawyers... but most of this information is free and easy for you to find if you are curious or in need! Laws change, rules change, insights might happen... We might update, change, rearrange this information if new things come up or change! Also, just because I mention something above doesn't mean it supersedes the rules of different websites we might participate on. I can say anything I want about topics like ancient art and using brushes but if a site we want to host a Sphinx event on has a different rule for whatever reason we'll follow those rules as best as possible. (In a common sense way, I mean. We wouldn't defy copyright laws just because they say so, but we might refrain from using even home made photoshop brushes on their site because they have a rule against them.)
