Commons talk:Fan art/Proposal

Introduction

I believe that the existing version of this page is legally wrong, and causes us to delete many more fan art images than we need to. In particular, the statement "Almost all fan art constitutes derivative work from some sort of copyrighted material and thus should be speedily deleted from Commons" is far too definite. There is a large amount of what is commonly referred to as "fan art" which is not legally derivative at all.

The WMF general counsel, Mike Godwin, has expressed a similar opinion which has been quoted here.

Comments on or improvements to the proposed wording are welcome. This doesn't yet cover costumes or cosplay, but that will come next. --MichaelMaggs (talk) 19:02, 18 March 2009 (UTC)

---

I think this version is better. But I am curious: does the creator of this proposal have any legal background? I'd very much like for our new fan art policy to be reviewed by somebody with legal background. Specific comment 1: why is the concept of derivative work mentioned in Commons:Fan_art/Proposal#Copyright_extends_to_copying_in_other_formats but not in the preceding section? I'd think that redrawing is also creating a derivative work... Specific comment 2: considering that a major motivation for overhaul of this policy was the cosplay deletion debate, we should mention cosplay and why photos of it are allowed. Specific comment 3: I think we could do well with a FAQ section, such as: are photos of cosplay allowed? Why cannot I create fan art of Mickey Mouse? And so on. --Piotr Konieczny aka Prokonsul Piotrus ^Talk 20:00, 18 March 2009 (UTC)

Initial question: yes; Comment 1:that can be added; Comment 2: I mentioned above that cosplay will be next. I intend to do that on its own page, with appropriate cross-links; Comment 3: see COM:DW. --MichaelMaggs (talk) 21:13, 18 March 2009 (UTC)

Parody

The statement of US courts giving broad protection to parodies is misleading. Read here: the "broad protection" that the US courts grant for parody is based on the "Fair use" principle, wich does not apply for Commons, and the freedom of speech, but this one is mostly considered in contexts of parodies for social criticism rather than parodies made for commercial gain. Belgrano (talk) 20:35, 18 March 2009 (UTC)

Yes, agreed, it is perhaps better not to draw attention to that. I will take that out. --MichaelMaggs (talk) 21:22, 18 March 2009 (UTC)

 Done --MichaelMaggs (talk) 21:22, 18 March 2009 (UTC)

Copyright owners do not care... or do they?

It is said, in order to minimize the extent of copyright, that "amateur fan art is often tolerated or even encouraged by the rights owner as it may help to generate additional publicity and to “strengthen the brand”.", without more explanations on the issue. And that's right, all around the internet we do find semi-unrelated fan art, strongly copied fan art and straight copyright violations, with most rights owners doing nothing about it; or even linking such things at official sites.

But it shouldn't be advised to take it so optimistic. Rights owners usually do not enforce their copyright, but that has never meant they have gave it up, much less that they would tolerate it being re-licenced. Any day, for any reason, or even for no reason at all, those copyright owners may wake up in the morning with a bad attitude and decide they will simply enforce the rights they had always had. The policy of Commons towards such borderline issues has always been to take precaution, not risks.

Besides, if a company decides to sue fan art for being copyright violation at non-clear cases, perhaps it's likely that the courts would deny it. Like the issue with parody explained above. But, in the same manner, will that defense be based on fair use? And if it isn't, wich would be the legal basis of the defense? It's needed to set that in order to set what may be actually possible and what may be defenseless. Belgrano (talk) 21:03, 18 March 2009 (UTC)

Although the statement is correct, I think it would be best to take it out as it may incorrectly give the impression that we allow copyright infringements if the copyright owner doesn't care.

 Done --MichaelMaggs (talk) 21:15, 18 March 2009 (UTC)

Harry Potter

Since the page makes heavy use of Harry Potter as an example, it might be worth pointing out that JKR has trademarked most characters' names from the series. Lupo 22:33, 18 March 2009 (UTC)

References

How about adding references? For instance [1] for the phrase "You might also have to worry about libel, especially if your drawing could be considered derogatory and damaging to JK Rowling's reputation." Lupo 22:33, 18 March 2009 (UTC)

 Done that one. Will add some more. --MichaelMaggs (talk) 15:20, 21 March 2009 (UTC)

Derivative works

While a vast improvement over the previous statement, I'm pretty dubious over the definitions of "derivative work" given in this new writeup -- and really, that is the crux of the matter; if an uploaded work has any copyright restrictions on potential re-use. The statement Copyright protection applies regardless of the format of the source material or of the fan art. An artistic representation, such as a drawing, based on an original character creatively described in a book may infringe the literary copyright in the written description. I disagree with that completely -- the literary copyright is about the words themselves, and a graphic drawing is never a derivative work (unless the words are so specific as to guide the exact outlines etc. of the drawing). It is no different than someone drawing a representation of a written blazon -- they are separate expressions of the same idea. On the other hand, if a drawing is derivative of a comic book representation, book cover, or frames from a movie -- obviously that is different. As far as the extremely fuzzy concept of "character copyright", which departs from the more usual "tangible" requirements of copyright and is therefore harder to define, I think that is more about the characteristics, life back story, plot, etc. which define a character -- most infringing works would have to be formats which allow that type of thing to be duplicated, such as a book, film, play, script, audio work... something where characters can be described and used. One gray area though may be an otherwise original drawing depicting a particular plot point in a book, or specific incident in a character's backstory... that could well be an issue (though even there, it may have to be considered "substantial" use to be an actual infringement).

As for a couple of the examples... A drawing of a boy with black hair and glasses, with a zig-zag scar on his forehead, whether or not labelled “Harry Potter”. I don't think that is (necessarily) a derivative work at all. If you gave just that description to two different people to produce drawings from, they would produce entirely different drawings from each other, neither of which would be derivative works of each other or of the original description, since the specific expression in each would be different. You might argue that combination of elements on trademark (or trade dress) grounds, but I don't see how you could argue copyright. Otherwise you are saying that any depiction of a boy with glasses with a zig-zag scar on their forehead is now a copyright violation for the next ~120 years, no matter which character or person it is applied to. Now, if one of those drawings was using specific bits of expression used in other (copyrighted) Harry Potter depictions (regardless of whether that expression was in front of the artist at the time), that could change things -- and really, to get a representation good and identifiable enough to use in wikipedia articles, that boundary is often crossed.

The crux of the matter is whether works are derivative or not, and if whether there are uses of those which would constitute infringement (technically derivative works which cannot be infringing in any circumstance should be fine, in my opinion). With something as ill-defined as character copyright, this can be problematic -- authors will naturally try to claim as expansive a definition as possible, and fan artists will try for as minimal as possible, which doesn't help (and many of their works are probably fair use on a fan site, but not if they sell them -- that is a problem here). There are also clouding trademark aspects -- elements which make others associate a work with a copyrighted character may not be an actual derivative of the copyrightable expression. It may be a good idea to find a list of decided court cases where judges have ruled to get a better idea of where the boundaries are, and base definitions off of those... right now, I don't see any references. I have not looked much for this type of case, other than for costumes. I do recall a case where a costume maker was found guilty on primarily trademark but also copyright grounds, but that decision isn't directly applicable to media uploadable to Commons (in particular, I think photos of costumes being worn in public are fine, as I can't think of an infringing use for those). This case covers some of the territory, but isn't really applicable... this one may be more. www.coolcopyright.com lists a number of interesting cases, but I didn't go through them all to find good matches. In short, a lot of "fan art" is probably a straightforward derivative of a separate graphical depiction, but I would be very careful about making generalizations about derivatives of character copyright. Carl Lindberg (talk) 03:11, 19 March 2009 (UTC)

In the example of "A drawing of a boy with black hair and glasses, with a zig-zag scar on his forehead" the text says, correctly I think, that this is arguably a problem. Without a specific case covering that example it's never going to be possible to be certain, and the guidelines here, while much more relaxed than before, are deliberately still conservative. There is no definition here of "derivative work" as used in US law (we can add the reference to the US Copyright Act if needed), but I beg to differ if you are saying that a drawing can never infringe a creative description in a book. I am sorry you apparently feel so very negative about the whole thing. --MichaelMaggs (talk) 07:29, 19 March 2009 (UTC)

I didn't understand Carl's arguments as negative at all. I have myself a problem accepting the idea that a drawing could be a derivative of a text. I think we'd really need sources for that. Maybe Harry Potter isn't the best example for this case, since JKR described him and his outfits in great detail, so maybe indeed the case can be made for HP and friends. But in general, isn't a literary character an idea? Copyright can only protect the author's word used to describe this idea, but not the idea itself. Why would someone making an original drawing of that character, even if based to some extent (waffle, waffle :-) on the textual description, infringe the author's copyright on the words?

The point here is "original". Our problem is, however, that most fan art is not original but often based quite closely on pre-existing depictions of these characters (or of the pre-existing maps in LotR, to mention another example). At that point it's clear that the "fan art" is a derivative of the pre-existing illustration. And if the fan art is truly original, it's original research and thus not suitable for the Wikipedias...

How detailed must a literary description be to make even a drawing that is based solely on that text but not on any other illustrations a derivative work of the literary work?

There are more gray areas. What if someone turns a literary work into a comic with totally original drawings? If the comic re-used the plot from the book, it'd be a derivative work for sure. What if the comic re-used character names, but spun its own plot? Probably it would then not be a derivative (assuming original drawings of the characters), but could the book author go to court over "unfair competition", "misappropriation", "libel", or something else? At what point would such a comic be a derivative? Again, here HP is a bad example for this because the HP character names are trademarked, so a comic artist would already get into trouble over that.

Despite all this, I think this writeup is a vast improvement. Lupo 21:41, 19 March 2009 (UTC)

Sorry if I came across a bit too harsh :-) I probably fixated on that one part too much, but I still disagree with it. You can argue anything really, but the question is if there is a realistic chance that a judge may actually rule that way. I spent some more time looking for a relevant court case, and came up empty -- I may just be missing them completely, but I have not found any indication that a drawing can be a derivative work of a written description. Maybe the UK is a bit different, but that seems to be a fundamental part of U.S. copyright law anyhow, the separation of expression vs the idea. Different forms within the "pictorial, graphic, and sculptural" category of works is different; those are all visual and can be derivative works of each other (provided the expression is copied). Certainly literary works can have non-literal aspects protected, such as plot, structure, and characters, but a derivative work needs to actually contain those elements, which I would think very difficult for a piece of pictorial fan art (obviously if making a full comic book, etc., those can contain dialogue, characters, plot etc. and can be infringing). Given the number of court cases which can be found about infringing characters and plots, you would think that there should be *some* court cases which would involve a graphic images being derivate of a literary work, but I couldn't find any. Unless references can be found which shows that is realistically possible, I think we should allow graphic fan art which is a derivative of only a literary work. I think it's being far too cautious otherwise. I am also presuming this category to be rather rare; I'm not sure many of those works would necessarily be in scope anyways, and most fan art is a derivative of an existing pictorial, graphic, or sculptural work anyways, so I don't think that question would come up that much. It is possible to have a derivative work where the included content is small enough to be considered fair use, meaning the new work is not infringing, and can be licensed as the author wishes -- it is probably that area we should be most cautious of, and have "not allowed" examples.

All that said, I think most of the text is very good, and a big big improvement (as Lupo says), so thank you very much for tackling it. It would be better to find some references of course :-) I think the bulk of it is accurate though. That one example just sorta glaringly stood out to me I guess :-) Carl Lindberg (talk) 06:24, 20 March 2009 (UTC)

I have found a bit of information which I will post later, but it does look like you are right and that it would be very difficult to argue that a drawing of a character infringed the literary copyright of the text of a book, at least in the US. --MichaelMaggs (talk) 15:11, 21 March 2009 (UTC)

Just some links (please excuse me if those duplicate what you had found): Protection of Graphic Characters, Protection of Fictional Characters, Samuels, Edward: The Idea-Expression Dichotomy in Copyright Law, Jacqueline Lai Chung, "Drawing Idea from Expression: Creating a Legal Space for Culturally Appropriated Literary Characters", William & Mary Law Review, Vol. 49, No. 3, 2007. The last one deals explicitly with the question of copyright and fan-fiction, but doesn't touch fan-art. If you have trouble downloading this document—like I did—sign up and e-mail the document to yourself). Also of interest: [2]. Lupo 09:26, 23 March 2009 (UTC)

In fact, I had completely forgotten that I had posted some links nearly two years ago at Commons talk:Fan art#Fan art of literary characters... and the "How useful is fan art anyway?" angle has already been discussed at Commons talk:Fan art#Usefulness?... Lupo 09:48, 23 March 2009 (UTC)

I have re-drafted this based on the various suggestions made above. I hope that should be better. Let me know when/if you think this would be OK to go live. --MichaelMaggs (talk) 18:00, 25 March 2009 (UTC)

I see no reason this can't go live. Bastique ^demandez 20:49, 1 April 2009 (UTC)

Agreed; sorry I had not gotten back to this. MichaelMaggs' edits addressed all of my concerns, and it looks good. One unrelated note on the "original research" section -- even en-wiki says they are fine, per en:WP:OI (part of the original research page): "Original images created by a Wikipedia editor are not, as a class, considered original research – as long as they do not illustrate or introduce unpublished ideas or arguments, the core reason behind the NOR policy." Carl Lindberg (talk) 14:46, 2 April 2009 (UTC)

 Done made live now. --MichaelMaggs (talk) 17:48, 2 April 2009 (UTC)

Well, I still have a doubt of what could be acceptable or not. For example these fan arts from Sailor Mars and Jessica Rabbit for me is original thoug the characters have the same cloth and looks. These one would be considered derivative works or not?Mizunoryu 大熊猫❤小熊猫 (talk) 02:21, 16 April 2009 (UTC)

All this discussion is only about the grey area of derivative works of characters from books, wich are described just by words in their original media. Characters from animated series are a definitive unacceptable case. Besides, those images do not have acceptable creative commons licences anyway. Belgrano (talk) 03:58, 16 April 2009 (UTC)

There is always going to be doubt -- there is no bright line where one image is obviously a derivative work, and a bit more original one is obviously OK. It is also not impossible to make an original work based on a pictorial character -- to me, the Jessica Rabbit image above would fit that bill; the expression there appears to me to be original -- using the basic idea of a Rabbit-like character but making an original interpretation. As noted though, it is not an acceptable license (and it would have to be presented carefully to make it obvious it was an unofficial interpretation, in order to avoid any dilution or other trademark issues). Graphic works need to contain specific elements of the expression from pre-existing graphical works to be derivative, but coming up with a clear definition isn't too easy. Carl Lindberg (talk) 12:46, 16 April 2009 (UTC)