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Fan Art and Copyright Infringement

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Offline kat

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[Very long post warning]

Copyright and Intellectual Property Rights can be a tricky subject to understand but for the typical game maker or content creator it need not be. Take for example one of the many [1] "Mario 64" remakes that popped up recently making use of the Blender Game Engine[2]. It's getting a lot of praise, YouTube views, and as a personal project for the developer it's certainly a laudable and impressive pursuit; people tend to learn difficult subjects or concepts quickly, and retain more information better, and for longer, when they enjoy what they are doing, or are familiar with certain aspects of the materials used. Mario, being a fun character and one with which most gamers are familiar, could be considered a perfect example of this principle in action.

This material is provided for informational purposes only and should NOT be construed as legal advice on Copyright, Intellectual Property Rights or DMCA. It is highly recommended legal Council be sought in matters of law.

However, these types of projects regularly prove problematic for creators because their assets are frequently ripped[3] from other games. As a result, it often means the Copyright or Intellectual Property rights and protections of a third-party are being directly infringed[4]. Where Mario is concerned that third-party would be Nintendo.

So what is "Copyright" and "Intellectual Property" and why should it matter? In a nutshell Copyright and other Intellectual Property rights concern certain aspects of creative endeavor. Whilst not mutually inclusive of each other, that is; 1) the Authors right to claim the Work as theirs, and 2) the prerogative to exploit said Work[5], however they see fit, independently, in part or whole, the activities of which are recognised and protected[6] under various International Treaties and Regional and Local Copyright Law[7].

For the most part however, certainly where recognisable content, brands and Intellectual Property's are involved, when someone else's material is being used without permission, discussion of "Copyright" and "Intellectual Property" tends to infer the latter rather than former point - the unauthorised exploitation of the Authors prerogative in a given Work - because the determination of 'ownership' is crucial with respect to being able to properly appropriate content without adverse legal consequence.

To put the above in context with the Mario this would mean that whilst Shigeru Miyamoto is recognised as the 'Author' and 'creator' of the character and associated Intellectual Property, the exploitation 'Rights' currently belong to Nintento. In other words Nintendo own Mario, and depending upon the degree of 'ownership' Nintendo has over the Mario, they also control how he's used - which might subsequently mean Miyamoto having to get Nintendo's permission to exploit something he created.

So, if Miyamoto has to do this as the original creator of Mario, then everyone else would require permission for the same reason; the Property belongs to someone and their permission is needed to use it. Furthermore, should the resulting project be made public, because doing so 'exploits' (is making use of) the Property of another individual or entity, permission would be of greater import. Without it the projects owner could find themselves in a lot of hot water, or loose their work entirely (cf. fn[9] & [10]).

But isn't this all about making money? What about "Fan Art", people don't make money from that and it's often posted to 'public' websites?. Generally speaking, infringing another’s Intellectual Property concerns its misappropriation or unauthorised use, interpreted as broadly as possible, rather than 'money making' specifically.

This makes Fan Art doubly problematic because, whilst Rights Holders might 'indulge' communities by (conditionally) allowing the creation of themed artwork[8], the issue becomes exacerbated the moment such content appears alongside any form of monetisation - websites that tout for subscriptions or memberships, that sell other services, or just display plain old banner advertising -  even though fans might not otherwise have intended to profit from their creations.

This is a key point in understanding this entire issue and why some content can be removed whilst others might remain - in almost all cases the applicable conditions of use tend to reside solely with the Rights Holder[9]; if they feel someone is unduly profiting from something they don't have the appropriate permission to use, they will determine whether or not the material gets "Foxed"[10] and issued with a "Cease and Desist" Notice[11], a process now made all the more easy with the advent of DMCA[12] and its respective "DMCA Take Down" procedure.

It should be apparent at this point, and in this context, that using third-party content without permission needlessly conflates the creation process such that would-be creators, need to foster an increasingly cautious, responsible and mature attitude towards Copyright and Intellectual Property because, if anything, it is of equal import to their own projects as it is to the likes of Nintendo[13] - just as with Privacy[14] these rights are uniformly applicable, the moment creators become selective in their consideration is the moment they might loose or compromise their own grounds of complaint should they find their own work similarly misappropriated.

The same is also true in the broader context and the Blender communities overall lack of regard for Copyright and other Intellectual Property issues. It (the collective community) should be seen to encourage originality, for creators to express their own ideas rather than to infringe, especially where such productions are a direct consequence of lazy familiarity, cashing-in on, or at the expense of, someone else's work[15].

Finally, whilst Copyright and Intellectual Property issues can be complex, they are not always expressly ambiguous. In other words, certain types of activity are pretty cut-n-dry in terms of their being an infringement or not - ripping, or using ripped content for instance, is not "ambiguous" because several layers of 'security' has to have been intentionally bypassed to get at it. And whilst working with such content might not be strictly condoned when done in the privacy of the personal home computer, publicising the results only invites trouble, something that can be avoided by simply not doing it in the first place.

The below is a very basic list of Copyright and Intellectual Property "do's and don'ts" - it's important to note that the following does NOT mean doing one or the other will be considered a 'safe' activity or not as the case may be, because as discussed extensively above, Rights Holders typically have the last say on these matters and have no reservations about expressing that position.

Avoid doing the following;
  • Ripping content from a primary source.
  • Porting content from one source to another.
  • Distributing materials created by another.
  • Bypassing DRM.
  • Ignoring an EULA.
Consider doing;
  • a re-imagining or re-interpretion (using different media may be better than same media).
  • looking at whether 'Fair Use'[16] applies.
Additional Reading

[1] searching BlenderNation should reveal the article unless it's been removed - it's not linked to in the above for reasons stated in the above, namely this site (KatsBits) not wanting to condone the activity in question.

[2] the BGE remake/facsimile makes use of materials and content ripped (extracted) from a protected environment. This generally means two things; 1) the circumnavigation of DRM (where applicable), and 2) ignoring an EULA (End User License Agreement) by cracking open the games content, elements of which are typically held proprietary format.

[3] the author of the Mario 64 Blender Game Engine facsimile port openly admits on YouTube that the assets used area ripped from Smash Brawl "Using Blender Game Engine, just playing a bit, the model is from Smash Brawl, everything else done by me, still a lot of work to do, stay tuned for more updates! :) " [(youtube)/watch?v=RA-aXpl6f8s]. It's often the case that assets used for projects like this are ripped and given their professional quality, having been made by professionals, often garner much praise as a result of people not knowing (out of naiveté rather than not caring per se).

[4] even though the materials in question are virtual, because they have been 'taken without permission' a "theft" has occurred. This is because "Theft" is generalised as a 'Property' crime rather than an issue attributable to specific, tangible items or 'things'. As such 'taking', 'exploiting' or 'misappropriating', 'Property' without permission is "theft".

[5] "Natural Rights" differ from "Assigned Rights" in that they exist 'outside' or in the absence of Law; being regarded as the author of something is not predicated upon the existence of a Law saying as much..

[6] generally speaking International Copyright and Intellectual Property are afford protection under the Berne Convention for the Protection of Literary and Artistic Works, which also depends upon the Territorial jurisdictional interpretation and enforcement of the aforementioned, alongside U.S. Code: Title 17 - COPYRIGHTS in the United States, the Copyright, Designs and Patents Act 1988 in the UK, or under the EU as The Directive on the enforcement of intellectual property rights. Furthermore, whilst the following is not required for a Work to qualify as being Copyright protected, Intellectual Property registered with a Government Agency, Officially recognised body, or in an appropriate form that engenders 'Official Sanction', will be afforded greater protection through an associative preponderance of evidence, i.e. there is an official record of such-and-such. It's important to note additionally that ideas and thoughts in of themselves cannot be protected unless or until they are manifest in tangible form.

[7] the "Author" or "Originator" of a Work can grant use of their materials to a third-party (or beyond) typically through conditional 'license of use', a privilege that can be revoked under certain circumstances. This means that Copyright and Intellectual Property is in effect comprised of two interconnected parts; 1) the item itself, a painting for example; and 2) the ability to exploit said item without necessarily taking ownership, for example making a print of the painting without having to purchase the painting outright. However, if the Author/Originator transferred full Rights in their Work to another, whilst they will are always recognised as the "Author" et al, they would then need to seek permission from the assignee to use the very materials they created - the creator of a Work can never be stripped of "Title" to the work (being referenced as the "Author" et al) because it is a 'natural right' - a right that exists outside law, but they can be prevent from exploiting that right depending on assigned license/rights conditions. There is a material difference between being recognised as the author or originator of a Work, and being able to 'exploit' that work.

[8] where "Fan Art" is tolerated by Rights Holders, that might be based upon whether a given Work is 'transformative or 'non-transformative' - a drawing or new 3D character might be considered 'transformative' because it changes, adapts or modifies the original expression; whereas ripping and transferring content between devices might not because it makes no substantiative change to the original - it is 'non-transformative'. Establishing the characteristics of the above in any case can be difficult when output is based entirely on someone else's property, especially if that material is in actively use (as is Mario).

[9] level design and game modding differ in a general sense in that developers and publishers might expressly allow it through the availability of proprietary tools - id Software, Epic, CryTec and Valve for example, provide various proprietary tools and editors to facilitate the production of fan made content for their games.

[10]Anyone with more than a passing interest in game related content creation, or wanting to make their own games, needs to be aware that infringement can lead to projects being “Foxed”, that is, their projects being forced to close through the receipt of a "cease and desist" Notice, as happened an Alien's themed Quake Mod that had to be cancelled due to 20th Century Fox claiming infringement of their Intellectual Property. Unfortunately for the mod team (and others since), 20th Century Fox were (and still are) well within their Rights as the IP holders to do this. And not just with games. It's equally applicable to transfer printed mugs and tea-towels as it is to action figures, movie prop replicas and full-size CosPlay outfits.

[11] “...The Alien Quake project was using copyrighted material without permission and this makes Alien Quake an unauthorized and illegal production. Therefore, you are hereby ordered to remove all your Alien Quake files from your computer storage...” [source notice]. Prior to DMCA, a legal Notice had to be sent to the infringing party at considerable cost to the Claimant (person/entity claiming infringement). Now all a Claimant need to is send an eDoc for the infringing party to be considered 'served'.

[12] DMCA is a legal process by which a Rights Holder can issue a Notice against an infringing party to have suspected materials taken offline whilst the veracity of such claim is contested (or not as the case often is). For more information read the following - “I got a DMCA 'take-down' Notice, what do I do?”, “Are DMCA Protection websites scams?” and “filing a DMCA Notice or Counter Notice”.

[13] individual developers and small teams are increasingly reliant upon revenues generated from advertising, so competing products that misuse or misappropriate someone else's Intellectual Property robs them of income by diluting or hijacking their revenue stream – this is one of the reasons YouTube/Google recently instituted their “Content ID” claim system, which partially seeks to address this issue on YouTube (cf. “YouTube & Not Approved for Monetisation”).

[14] "equal rights" refers to assignment without bias or prejudice. However, do note that "equal rights" is not synonymous with "equality of result". With respect to "Privacy", as is generally understood, it is another form of property right because the data and/or information often at the centre of such claims, belongs or pertains to some one or entity. 'Ownership' (source) can be traced in other words, making it a commodity that can be treated in much the same way as any other property over which a claim could be made, or protection demanded.

[15] a creator or developer using someone else's material to make a name for themselves, or to cash-in on either the popularity of a particular game or any of the names associated with it, is a form of exploitation that is just as readily an infringement of Intellectual Property as 'theft' and equally subject to liability
. So again, it's far better to create something from an original idea than to use 'ripped' content because at the very least, the Author has stronger claim of ownership over such material.

it's important to understand there are no specific allowances for "Fan Art" in Copyright Law so it tends to be argued under "Fair Use". However, depending on applicable Law and Jurisdiction, "Fair Use" has some strict conditions that do not always apply (because the intent behind 'Fair Use' differs to that of 'Fan Art'). Use with extreme caution.