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August 7, 2012
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UPDATE: Comments DISABLED. DISCLAIMER moved to top of page where it's more visible. My apologies for any inconvenience.

Disclaimer: Jinbae is not responsible for any content provided by external sites. 

The material in this journal should, in no way, be used as evidence in court or as a replacement for professional advice. Jinbae is not a professional copyrights lawyer.
US copyright laws and the content in this journal are subject to change with or without prior notice.

Please keep in mind that not all the material in this journal necessarily reflects my (jinbae's) thoughts and opinions about Copyright law. It is, more or less, simply a journal that answers questions concerning copyright law based on current laws.

All material in this journal is based on USA copyright laws. If you are stationed outside US jurisdiction, please check your own government's laws regarding copyright. To see if your country shares copyright relationships with the US, please check the International Copyright Relations of the United States. 

If you have any lingering questions, concerns, or doubts, please refer to a copyrights lawyer, US Copyright Office, or your respective government.

- Table of Contents (Not links) -
:bulletblack: What is Copyright?
:bulletblack: What Does It Do?

:bulletblack: Do I need to clearly state that my work is copyrighted?
:bulletblack: How do you know if something is copyrighted?
:bulletblack: How do I state my copyright?
:bulletblack: Can I use (c) instead of ©?
:bulletblack: If someone steals my work, can I sue them for it?
:bulletblack: Is it worth suing someone over copyright infringement?
:bulletblack: What is a 'poor man's copyright' and can I use it?
:bulletblack: How do I register my work with the government?

:bulletblack: If I edit the picture enough then doesn't the copyright belong to me?
:bulletblack: What is 'Fair Use'?
:bulletblack: When does 'Fair Use' come into play?
:bulletblack: Since I am using someone else's work for learning purposes, can I upload it onto sites like DeviantArt?
:bulletblack: What is 'Public Domain' and how do I know if the work is in the 'Public Domain'?
:bulletblack: How long does copyright last?
:bulletblack: Does that mean fan art is illegal?
:bulletblack: But people sell dōjinshi and prints of copyrighted characters in Anime Conventions (e.g Sakuracon, etc.).
:bulletblack: If a company finds out about me selling fanart, will I go to jail?
:bulletblack: Do I hand over copyright when someone commissions me to do an artwork?
:bulletblack: Are you implying that we should follow copyright laws without question?

Creative Commons
:bulletblack: What is Creative Commons and what does it do?
:bulletblack: Does Creative Commons replace my Copyright?
:bulletblack: Why doesn't everyone use it? Is there any downsides to Creative Commons?

Common Online Myths and Misconceptions:
:bulletblack: It's online so it's free and up for public use.
:bulletblack: Copyright is ruining our community!
:bulletblack: I can steal from others online because I will never get caught!
:bulletblack: But everyone does it so isn't it okay???
:bulletblack: It's free advertising, you should be thanking me.

:bulletblack: People who infringe copyright are dirty thieves who should just go die.
:bulletblack: If you don't want it stolen, don't post it online.


Copyright FAQ and Facts

:bulletred: What is Copyright?

cop·y·right

[kop-ee-rahyt]
noun
1. the exclusive right  to make copies,  license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, etc.: works granted such right  by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 70 years after his or her death. (Courtesy of Dictionary.com)

:bulletred: What Does It Do?

It protects your work by giving you the right to be credited for it, as well as prohibiting others from stealing it, reproducing it, etc. under penalty of law.

:bulletred: Do I need to clearly state that my work is copyrighted?

No, with the passing of Copyright Act of 1976, your work is copyrighted from the moment of creation, assuming that it was created on January 1, 1978 or later. Nevertheless, a copyright statement on your work is encouraged as it will prevent anyone unfamiliar with copyright law from infringing your work.

:bulletred: How do you know if something is copyrighted?

Usually there will be a copyright notice somewhere on the work, but as a general rule of thumb, assume everything is copyrighted. Better safe than sorry they always say.
If something is not copyrighted, it will usually state something like, "FREE FOR USE".

A good idea would be to actually ask the artist directly if further complications occur.

:bulletred: How do I state my copyright?

Generally you would want to use the copyright symbol ©, state the date of creation, and your name/company and anyone else affiliated with the work.

Example:

Copyright for dAmmies©2012 JIN artworks. | jinbae.deviantart.com

If you wish, you can include statements like "Do not steal, alter, etc. under penalty of law" or "All Rights Reserved".

:bulletred: Can I use (c) instead of ©?

You can, but it's recommended that you use © instead of (c). The method of putting the letter 'c' within parentheses was developed when people were using typewriters and did not have a © button available. However, since we have moved on from typewriters to computers, where the © symbol is easily accessible, the (c) will sometimes not be accepted by law.

:bulletred: If someone steals my work, can I sue them for it?

Yes and no. Despite the fact that your work is copyrighted from the moment of creation, you cannot sue someone for copyright infringement unless you have registered your copyright with the government. So unless your work is registered with the government and it's in their public records, a lawsuit will get complicated.

:bulletred: Is it worth suing someone over copyright infringement?

It all depends, are you a world famous artist like Andy Warhol or are you a thirteen (13) year old kid who had his Naruto fanart stolen? More often than not, it's more trouble to pursue a copyright lawsuit than it's worth. However, this does not mean you should never pursue a lawsuit. The best option would be to consult a copyright lawyer and see what you can do.

:bulletred: What is a 'poor man's copyright' and can I use it?

A 'poor man's copyright' is when you mail your own artwork to yourself and not open it again until it is used in court. It is so that the method can at least provide an earlier date of creation or ownership prior to any third party infringement.

However, this is not recognized as legitimate evidence in court as it is easy to use earlier envelopes or packages to fake a postal date.

:bulletred: How do I register my work with the government?

Registration with the government is a rather tedious task that is better explained at the official Copyright Office website, section "Registering a Work".

:bulletred: If I edit the picture enough then doesn't the copyright belong to me?

This will always be in the gray area. There's no set percentage of alteration required before it's not considered copyright infringement. Again, your best option would be to consult your local copyright lawyer on cases like these where it's generally based on subjectivity.

:bulletred: What is 'Fair Use'?

noun
The conditions under which you can use material that is copyrighted by someone else without paying royalties. (Courtesy of Dictionary.com)

:bulletred: When does 'Fair Use' come into play?

Fair Use is probably the most grayest area in copyright law. It can swing in either direction depending on the situation.
According to US Copyright law sections 106 and 106A, "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

The methods used in determining whether the case is a fair use are as follows:
  1. the purpose and character of the use, including whether such use is
    of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

:bulletred: Since I am using someone else's work for learning purposes, can I upload it onto sites like DeviantArt?

Sorry but no. When you upload others' works onto public sites like DeviantArt, it becomes exhibition of their work without consent. Using others' works for learning/teaching purposes in small areas, such as a school classroom, can be protected by Fair Use law, but the internet is in no way a 'small, disclosed space'.

:bulletred: What is 'Public Domain' and how do I know if the work is in the 'Public Domain'?

When the length of copyright expires, the work is in the public domain. Works of Beethoven or Mozart are generally public domain due to how old they are, but don't rely solely on the date because other variables may apply.

:bulletred: How long does copyright last?

With the Copyright Act of 1976, all works created on January 1, 1978 or later are protected for until the author/artist dies, plus an additional seventy (70) years. For commission works, the copyright lasts for a length of 95 years from the time of publication, or a length of 120 years from the time of creation, depending on whichever term expires before the other.

Prior to the Copyright Act of 1976, works were protected for 30 years with an option to extend it.

:bulletred: Does that mean fan art is illegal?

Possibly, but the general consensus is no; fan art is legal as long as you do not infringe any copyright. Take Spongebob Squarepants for example, copyright law protects the character from being stolen or used in unauthorized ways but it does not limit the creation of artwork to only Nickolodean and its partners (as long as it is within Fair Use boundaries). Thus, although the character is copyrighted to someone else, the artwork is copyrighted to you.

However, sale or use of fan art for commercial purposes is against the law as it infringes upon the character's copyright (See below for more detail). Also, exhibition of the work in cases where you simply traced the image, or created an identical vector replica will also not protect you from potential lawsuits.

Ultimately, it depends on the content of the fan art and whether the company is okay with it. (e.g Obviously portraying batman as Hitler is going to get you in trouble...)

:bulletred: But people sell dōjinshi and prints of copyrighted characters in Anime Conventions (e.g Sakuracon, etc.).

The act of selling dōjinshi and prints of copyrighted material is, by definition of copyright law, illegal. However, such conducts are often purposefully overlooked by companies as the dōjinshi and prints can actually provide more exposure for the original manga/anime. Additionally, anime conventions are often annual or bi-annual, not year-round. Thus, the presence of anime conventions occurring once or twice a year do not pose a threat to the publishing company's revenue.

The act of selling commissions on deviantArt containing copyrighted characters is also quite sketchy. Companies will often pay no attention to it or they will simply overlook it. The reason is that it is a small transaction made between one person to another within the fanbase and not at a wide scale. However, you do not have the right to provide commercial licenses to the buyer. 

Examples:

  • Mr.Artist sells commission containing Spongebob to Mr.Buyer under private/personal license - Sale to one person, no commercial licenses. Companies will often overlook it.
  • Mr.Artist2 sells commission containing Spongebob to Mr.Buyer2 under commercial license and sells it on Amazon.com - Sale to one person, under commercial license, possibility of infinite buyers due to Amazon. Companies will probably take action.

Basically, the bigger your sales market is, the more likely the company will see you negatively.

*Not all companies will overlook this type of conduct. Sell at your own risk!

:bulletred: If a company finds out about me selling fanart, will I go to jail?

Well it really depends on the size of the company and whether the news of someone's arrest will affect them negatively. For example, if you were to sell a fanart of Spongebob Squarepants, chances are that all you're going to get is a 'cease & desist' warning. If you fail to adhere to the warning, however, you may get fined or sued.

*Not all companies are as lenient as to provide a warning, please use common sense and popular wisdom to judge your actions.

:bulletred: Do I hand over copyright when someone commissions me to do an artwork?

Only if the conditions for the commissions specifically state that the copyright is transferred to the buyer. Just because someone owns the artwork does not mean the copyright is yours. For example, lets say Bobby McRichpants buys an Andy Warhol artwork. Bobby McRichpants owns the painting but he cannot sell or reproduce the work because Andy Warhol never transferred copyrights to Bobby.

Generally copyrights transfers do not happen all too often. There are commercial licenses in which the artist and the employer can agree upon where the employer is allowed to use the work for commercial purposes for a set number of copies and/or time.

*Please note that a vast majority of artists here on deviantArt run under a personal/private commissions license. Please check with the artists individually to see if they provide other licenses or copyright transfers.

:bulletred: Are you implying that we should follow copyright laws without question?

No. Like everything else, nothing is perfect. With the introduction of modern day internet, the copyright laws have been getting rather... complicated. The reformation of something as big as Copyright Law is something that must be done at a slow, steady pace. If something like this were to be reformed at a rapid pace, it would actually do more harm than good. The problem that lies with this is that slow and steady does not mix very well with the rapid growth of the internet.

Hence the reason why copyright court cases can swing either direction depending on the situation and should be looked at with a gray perspective, not black&white.


Creative Commons


:bulletred: What is Creative Commons and what does it do?

Creative Commons is a nonprofit organization that provides free, legal copyright licenses that allows for the sharing of your work under certain circumstances. There are different licenses for you to choose (e.g Non-commericial, No Derivative, etc.). Strictly going by definition, a normal copyright license requires that you explicitly ask the creator for permission prior to use, while the Creative Commons license allows for sharing without permission as long as you follow the conditions as stated in the license. Hence the change from "All Rights Reserved (Normal Copyright)" to "Some Rights Reserved (Creative Commons)".

:bulletred: Does Creative Commons replace my Copyright?

No. Creative Commons does not replace your copyright. It allows you to modify your terms so that people can easily access and share the work without the need to constantly contact you.

:bulletred: Why doesn't everyone use it? Is there any downsides to Creative Commons?

There are many reasons as to why people do not use it. The reasons include, but are not limited to:

  1. People simply do not know much about it and do not wish to take the time to research it.
  2. People do not wish to have their work shared on a wide scale.
  3. As time passed, common individuals began to use the normal copyright license in the same fashion as Creative Commons. Thus, although in name they state only Copyright, the terms for sharing that they allow are the same as Creative Commons.*

Like everything else, Creative Commons was also criticized for its actions. To read more, please go here.


Common Online Myths and Misconceptions:

:bulletred: It's online so it's free and up for public use.

No, no, and NO. The internet is a medium for communication. It does not mean everything in its servers are up for public use. If we went by the 'online=free' logic, then I would be able to print off the Google logo and sell it because it was "online so it's free".

:bulletred: Copyright is ruining our community!

If protecting others' intellectual property is considered bad and theft is considered good, I would rather not live where you are...

:bulletred: I can steal from others online because I will never get caught!

Well it may be true that you will never get caught, but some do. Regardless, it's not so much about getting caught or not, it's about you being a sensible human being.

:bulletred: But everyone does it so isn't it okay???

Well if everyone were jumping off a cliff... I think you can figure the rest out by yourself.

:bulletred: It's free advertising, you should be thanking me.

Sorry but that's not something for you to decide. It's a choice to be made by the artist. If you want to share their work then ask or make sure they're okay with it.
On a side note, piracy is in no way free advertising.

:bulletred: People who infringe copyright are dirty thieves who should just go die *RAWR*.

There are people who genuinely wish to harm others and there are those to do it without actually being aware of the harm they are doing. Due to the large amount of people violating copyright laws, we often lose sight of what's right or wrong.
If someone violates copyright laws, make sure it wasn't an innocent act of ignorance before you start cursing them...

:bulletred: If you don't want it stolen, don't post it online.

If you don't want to get shot, don't be alive.
Trust me, if we went by the "If you don't want it stolen, don't post it online" logic, there will be nothing on the internet right now.

Please note that copyright laws are always in the gray area and should not be looked at with a black&white perspective.


© 2012 JIN artworks | jinbae.deviantart.com

Sources -

US Copyright Office
Copyright For Artists FAQ
Common Sense :dummy: :heart:
Creative Commons

A simple 101 about copyright laws.
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