Well we are back on the blog once again, this time a question was posed by friends of mine on twitter when a member of the furry community was told by an artist they commissioned that they could not use their art as profile pic or banner and here I go explaining this once again because they should 100% be able to use it as whatever they want, as long as no compensation or claiming of autorship is done (a.k.a. claiming they drew/created it).
This is also specially important fotr SL content creators who, in later years, have been seeing their work imported to other websites. So I will delve really quickly into what A ToS actually does and what FAIR USE, PERSONAL USE and COMMERCIAL USE REALLY ARE.
What is Copyright?
Copyright protects only the form in which ideas and information are expressed. Copyrights expire after a certain period of time and the law allows certain limited uses of copyrighted material by others, without the creator’s permission.
Now how is Art viewed under Visual Artist Rights Act of 1990 (VARA) and Copyright Law, especifiically Section 106, Copyright Act of 1976, as amended, codified in Title 17 of the U.S. Code. I know, lots of words, so in short: Copyright gives artists who have created fixed, tangible works a bundle of rights in those works. The rights provide both artistic protection and ensure that artists can profit from what they’ve made. After an artist creates a piece, they have the right to make copies of their work, distribute those copies, perform or display the work publicly, or make works that derive from the original.
Copyright and Commissions
Take into account the above is exclusively related to ORIGINAL and PERSONAL artwork, NOT commissioned pieces. For commissions there’s a wide variety of situations that cause confusion for one too many, so here is a breakdown:
Copyright, by default under Copyright Law both in the United States and Europe, for the most part, goes to the original creator of a particular work. If you write a poem, create a drawing or record a song, you are the owner of its copyright. However, there is one broad exception to that rule called Works-made-for-hire. For example, if you create thart art while under contract at work or when hired by a company to create something for them.
While the artist retains rights to that piece, always and forever, if they do not own the characters invoved in said piece, they have no right to profit further from said piece other than the intended purposes.
Types of Use under copyright law
While there may be more, we are going to focus on 3 in particular:
COMMERCIAL USE: Commercial use is a legal term that defines the use of certain merchandise, tools or intellectual property for financial gain. A business can use anything labeled for commercial use for its purposes, including resale, production of other goods and tools and marketing. Meaning, the artist retains the COPYRIGHT of the art, but they cannot claim profit from however the client chooses to do with it after it has been delivered.
PERSONAL USE: Personal use only means that the copyright holder is giving free and unlicensed use of their work, but only for non-commercial and non-profit uses. Meaning, the buyer has EVERY RIGHT to use the image as they see fit as long as they do not profit in anyway from said piece or claim ownership of the creation of the piece.
FAIR USE: Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Meaning, anyone can use it freely as criticism, comment, news reporting, teaching, scholarship, and research, to mention a few.
Now for the burning questions!
Can I use my paid piece anywhere on the internet as I see fit? In short, yes. But you are not allowed to profit from it or make claims that you created said piece.
But what about a ToS? Terms of service (ToS) is a type of document stating details about what a service provider is responsible for as well as user obligations that must be adhered to for continuation of the service. And here is the kicker, this is not legally binding unless a contract or artist agreement has been signed.
So wait, I cannot enforce my ToS? You cannot unless you create a contract.
So can people use my art freely? No. Because you keep that copyright, people DO need to abide by the basics of Copyright Law or you can file a DMCA, and as long as they don’t break the law or your basic ToS, you both should be fine.
So can my friend use the image as a profile pic or header? YES. That is PERSONAL USE.
What if my friend puts it in their OF or a site that collects money to obtain a copy of said art, for example Patreon or Ko-fi? That would be copyright infrigement if they did not get a commercial use license from you to profit from said piece/art.
So basically, my ToS stating you cannot use it as profile/header is not legally binding? Correct, it is effectively against the Personal Usage that copyright law allows and protects. And remember, ToS and Contracts/Agreements cannot be above FEDERAL LAW. And Copyright Law IS federal law.
So what does this mean for SL people?
Simple, even if SL claims the moment you upload it they can make use of it, Copyright Law states you still own that copyright. Now SL can be useful and protect your work from being extracted and copied(“ripped”) into other media, VRChat the most mentioned lately.
Under no circumstance can you bring out pieces and move them to other media without the creator’s consent.
How does it affect Photographers? It does not, most SL photographers don’t claim they created something, some even mention where to get the things they use.
And how about Dev Kits? Most artist have DevKits for creation WITHIN the platform they created it for. Remember that a lot of copyright law is for specific media only, that’s why a DMCA can be filled when proof of copybotting or “ripping” content is transferred to another media.
So what can I do to protect my work?
For artists make an artist agreement, where everything needs to be laid out in clear terms as to the do’s and do nots that your clients will be subjected to and that cannot, under any circumstance, go against what Federal Law (Copyright Law) entails.
So in the end, these are the four steps IO recommend for anyone, people who own their Original Character, SL content creators of mesh items and artists taking commisions:
WATERMARK YOUR WORK: The easiest way to avoid infringers from copying or screenshotting your digital art is by adding a unique watermark to all of your artworks. You should make sure that your watermark is unique and clearly visible, possibly at a prominent center position where it can’t be removed or cropped easily. You should also consider adding extra pieces to the DevKits so in case someone tries to use your devkit, the person they commisioned or even them can see you do not allow it.
POST SMALL RESOLUTION COPIES OF YOUR ART and ask your commissioners to do that too: To avoid scammers from posting your artwork as their own, you should only post small-resolution images of all of your digital art. And ask your commissioners that if anyone is to use it, please post the small resolution pic for personal use on online websites and social media.
DO NOT BE AFRAID TO TAKE LEGAL ACTION: Ignorance is never bliss, especially when someone is trying to copy your artwork. You can directly send a cease & desist letter or a copyright strike/notice to anyone trying to steal your art.
HIRE A LAWYER TO WRITE UP YOUR TEMPLATE CONTRACTS, TOS AND AGREEMENTS: Or at least use the MANY contract templates available online to fit your needs.
FORMALIZE YOUR COMMISIONS: There’s many places that now allow artists to have digital signatures of contracts, ask for it to be signed and as a commisioner, ask your artist to provide it. That way you are both protected.
INTELLECTUAL PROPERTY ALSO EXTENDS TO YCH, CHARACTER SHEETS AND SO ON: Just because an artist made your piece, it does not mean they ownyour character and have free reign to use it to profit from it, a contract can help you both formalize what each part can and cannot do.
There is a myriad of information online about this subject, I just made a very long TL;dr but compiled what most would say. Hope it helps.
Sources: https://www.copyright.gov/title17/ https://digitalcommons.law.uga.edu/ https://www.plagiarismtoday.com/2019/09/05/copyright-and-commissioned-art/ https://www.artsy.net/article/artsy-editorial-art-copyright-explained https://www.dmca.com/ https://www.redpoints.com/
MiwaBunny 