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I am not a lawyer. I do not know everything there is to know about copyright law and cannot assist you with legal matters. I have studied copyright extensively and written many DMCA Takedown Requests for myself to successfully get the illegal use of my work stopped. This article is in no way comprehensive. It does not include 100% detail on copyright laws. If you want more information or just want to browse more of my writing on copyrights, please go here.

Copyright and "Theft"



Why sharing can be illegal.
There is quite a bit of confusion about copyright law, the DMCA, fair use, de minimus, etc. And rightly so. I always try to give people the benefit of the doubt when I come across what appears to be a "theft" issue. Even people in the United States, the home of the DMCA and one of the strongest supporters of copyright protection, can be ignorant of these laws and protections afforded to all people, not just artists. So it stands to reason that people outside the United States will have very little knowledge of these laws.

The problem arises when both US citizens and non-US citizens collaborate on a US-based website (ie deviantART) together - eventually toes will get stepped on (intentionally and unintentionally).


You, the Internet, and the USA



Every country treats copyright differently.
While criminal copyright infringement in the USA can result in $500,000.00 US dollars in fines plus up to 5 years in prison, copyright infringement in another country may not be illegal at all or have significantly different punishments associated with it. You must always be aware of where the website you are using is getting services from. You must always carefully read the terms of service of any website you are using.

If you are on a site that is hosted by a USA company or company whose internet business uses servers or services out of the USA, YOU ARE BOUND BY US COPYRIGHT LAWS while using the services of that website. On deviantART, when you joined, this was explained in the Terms of Service you accepted in order to create an account here. Even if you do not live in the United States, you are still subject to US law as it applies to the website. And the DMCA and copyright law applies to deviantART. Which means it applies to you.

FAQ #250: The laws of my country differ from those of the United States- which ones apply?

You are not anonymous.
As a person on the internet, it is important to remember that you ARE NOT ANONYMOUS. You can be tracked. Your computer has a distinct identification assoicated with it when you access the internet - through your own provider, through a public wifi, etc. Not even private browsing or browser add-ons can remove this identification. With this identification (and this is not the only way you can be identified, just the easiest), you and your activity can be tracked by users on the internet. Not by just government users either. Most anyone who has the ability to grab your IP address can track you.

You are inevitably responsible for you.
In the end, you will always be responsible for you. Even if someone gets your account information and does illegal stuff on your account, you are still responsible for it. Keep your account information safe. Don't share your account with anyone. And definitely don't ever think the laws of one country do not apply to you when you are using services from that country.


Your Protection under the Law



What and who does the DMCA and copyright law protect?
In 1998, an amendment to Title 17 (the Copyright Act) was passed under the United States implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty adopted by countries around the world two years earlier. The stated purpose of the DMCA is to protect copyrighted works in the digital world by making use of technology to get around copyrights illegal. So, as it applies to deviantART, you can't use technology to take or modify someone's art - if you do, you are breaking the law in many different countries. The DMCA also has a system for electronic filing of copyright infringement. Copyright law, on the other hand, protects completed works (not ideas, but works that have taken a physical form - this includes writing!). Once an idea takes form, it is protected by copyright law, and the person who put it in its tangible form is the copyright holder.

To establish copyright, you can't simply have an idea. Three items must hold true: the idea must be fixed into a tangible medium (includes text on a computer screen like emails or literature deviations, code, digital art, etc), the work must be original (you can't create the same thing as another person and claim it as yours even though you did the work), and the work must display minimal creativity (if you use a reference and your work can't be easily distinguished from the original, it isn't minimally creative). Once a work is in a tangible medium and meets these three criteria, it is automatically copyrighted to the creator for their entire life (unless sold or given away legally) plus a varied amount of time after the person's death - depending on family, possible copyright renewals, etc.

What the copyright holder has the right to choose.
An important and often overlooked area of copyright law and the DMCA is that it is a CHOICE. To be protected or to not be protected is the choice of the copyright holder. Many artists on deviantART don't care if you repost their art on other sites so long as you credit them and link back. Others, however, have a huge issue with it. Some don't even care if you take it and make money from it. But again, some will go after you using the law and take you to court.

The super important piece of information to remember is that whether an artist chooses to use the law to protect their work or not is entirely up to them. Until you know for sure how the copyright holder feels, you can't do certain things with their work: edit it, manipulate it, sell it, trace/base it, print it, etc. Those are rights that belong exclusively to the copyright holder. And unless you get permission, you will be breaking the law.


Copyright Law and its "Exceptions"



I think my work falls under Fair Use.
It probably doesn't. Your work really only falls under fair use if you actually cannot, in any way shape or form, contact the copyright holder to ask for permission. So, if you use something you find on deviantART without permission, it WILL NEVER BE FAIR USE. Contacting the copyright holder on deviantART is very simple. In legal terms, "The principles of fair use are invoked when the transaction costs associated with gaining authorization from copyright owners to make use of works is too burdensome in reasonable circumstances." Basically, that means if you can't afford to get in contact with the copyright holder (not applicable on deviantART), or your reasonable attempts produced no return reply (not applicable on deviantART), or your reasonable attempts never uncovered a viable way to communicate with the copyright holder (not applicable on deviantART), then your use of their copyrighted work MIGHT fall under fair use. MIGHT - even if you can't contact someone on deviantART OR they don't reply to you, EVERY SINGLE DEVIATION has a © attached to it so everyone knows it is protected - bottom line: you can't use it.

Many people claim that because fair use is often associated with using works in a non-commercial or non-profit way that if they aren't making any money off of it that it is okay. That is wrong and it is not okay (and most definitely not fair use). Reposting a work is NOT fair use (even if you credit the original artist). Editing a work is NOT fair use (even if you credit the original artist). Using a work as stock when it is not stock is NOT fair use (even if you credit the original artist). And, generally, tracing or basing a work is NOT fair use (even if you credit the original artist)...

Fair use allows the reproduction of non-profit and non-commercial works for private use and display, so if someone wanted to go to my account and print off a copy of this work to hang in their home or private office area at work, they theoretically could under fair use. I am not selling it nor ever had it for sale. And as long as you never claim it as your art, try to sell it or display it publicly, you may never face legal prosecution. BUT, since I am so easily able to be contacted on deviantART, even that may infringe on my copyrights - only a judge could make that decision though. On the flipside, if you tried to do the same with this work, you would be breaking the law - no gray area here at all. You can clearly see it is for sale.

Another fair use myth is that if you claim or attempt to use a copyrighted work to teach people things that it is fair use. Not true. While this will hold as fair use in some cases, you cannot use the entire copyrighted work, you cannot use a copyrighted work that is for sale, you cannot in any way devalue the copyrighted work, and you cannot use the copyrighted work in the way it was intended to be used by the copyright holder. So, if someone used this work to trace and make a base from for other people to create their own fancharacter, it would be illegal. It doesn't matter that the artist who created the base says that it is to help other artists learn how to color or understand anime bodies. It doesn't matter that the artist who created the base isn't making any money. It doesn't matter that I am not selling my work for profit. The use of my work in that way is illegal - NOT fair use.

Fair use is an incredibly gray area. The ONLY WAY to legally have fair use is to have a judge in a court rule that your use of a copyright work was fair use. As such, deviantART does NOT allow claims that use of a work were fair use.

FAQ #32: Fair Use and Your Submission

Fanart is totally illegal!!! DX
Fanart is a HUGE gray area in copyright law, but it is by no means illegal in the black and white sense. I am a fanartist (check my gallery for lots of eye-bleeding Sailor Moon fanart!). Basically, if you create your work 100% all by yourself (no bases, traces, manips, etc), then you are not doing anything "illegal" that you will get in huge trouble for. You can't sell it though - that is a no-no. That fanart still contains copyrighted elements that belong to another artist, so be kind and don't sell it as a print (deviantART doesn't allow it, and if you miscat your fanart to be able to sell it, they will find you and send in Trollface to remove it from the prints shop before you ever get a single penny - woo hoo for deviantART reviewing all first sales before completing them!!).

BUTT (oh yes, there is a giant crazy smelly butt in fanart), fanart is technically illegal when posted in the public eye - hello derivative work! So while doing 100% of the work yourself is socially accepted as legal (and copyright holders don't begrudge you for it in court), it isn't legal to do all the things with other artist's works (including the official works by the creator of your fandom) like we have previously discussed. If you don't own it, you MUST get permission before you can use it. And no, just because other people are using it or it can be found all over the internet does NOT mean it is fair use. Don't trace/base official art from your fandom - that isn't okay until you get permission. Don't "manip" or edit official art from your fandim - that isn't okay until you get permission. And definitely don't sell your fanart (commissions work a little differently). Check out this video for more juicy fanart law explained by a real life copyright law professor.

FAQ #572: What does deviantART consider "Fan Art" to be?

It didn't have a © or other copyright notice with it, so it is free.
No. No. No. And many more "No." Copyright is established the moment a work is put into a tangible medium (remember a few paragraphs above?). Even if someone doesn't put that the work is copyrighted, you still can't use it and have to contact the copyright holder. The one exception to this is if the copyright holder STATES it is not copyrighted. If the copyright holder says it is free to use, make sure you follow what they say it can and cannot be used for. As an example, check out this deviaton. That work is free for anyone to use under certain circumstances. So long as you follow those rules, you can use the work without asking permission first. Another exception is a work like this one. That particular work is in the Public Domain - free for ever for anything and everything.

However, you MUST REMEMBER that if the work does not state it is free or list possible uses, it is NEVER free or allowed for use. You must contact the copyright holder. This goes for official work too such as screenshots from movies and TV shows, scans from books and magazine, etc. Even coloring books intended for private coloring use are protected by copyright law - you can't turn them into bases, you can't color them and claim the whole work is your own, etc.

The law of "first sale" and "works for hire."
If you were to commission an artist who made you an artwork, that artist still owns the copyright on that work. This means that you can only use that work in the way that artists says is okay. Anything else will be illegal - even though you BOUGHT the work. The same goes if you buy a print on deviantART. You can only privately use that print. You can't make copies of it, sell them, or upload copies to another website and claim the art is yours. It isn't yours and you don't have the right to make a profit off of it. HOWEVER, like anything you buy, if you end up not wanting it anymore, you can sell it or give it away. This is the right of first sale. You bought it or it was given to you. You can get rid of it ONE TIME by selling it or giving it away. You can't make copies and turn a profit, but a copyright holder cannot stop you from selling their work in a garage sale one time or re-gifting it to someone else.

A work for hire is a little different. A work for hire is a work prepared by an employee for the company they work for. So, anything I create for my employer is a work for hire and belongs to my employer (not to me). A work for hire is also a work that is prepared specifically for use as a contribution to a collective work "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire" (per section 101 of the Copyright Act - actual wording!). So a commissioned work, IF both parties agree before hand and sign a contract to that effect, will be a work for hire. Basically, if you are creating something for your employer, you don't own it - period. If you are asked to create something by an outside party who is NOT your employer, the commissioned author/artist owns the copyright on the finished work while the buyer simply own a copy of that work (and is not the copyright holder meaning they must get permission from the person who made the work for them to use it). If the buyer wants more rights or all the rights to the work they are commissioning, they must enter into a contract that specifies that the work will either be a work for hire or enter into a contract that outlines what uses they will be permitted. Just because it is YOUR character and YOUR money that purchased the art does NOT mean you can do whatever you want with it.

I used stock art. Why isn't the final work 100% mine?
Stock art is tricky. Basically, stock art is art created by and copyrighted to another person. That person has made their art available for other people to use so long as they follow certain terms and conditions. When you create a new piece of art with stock art, the new piece of art is your own creation. And if it falls under the three rules mentioned earlier, it will be copyrighted to you. BUT, even if the final work is copyrighted to you, you still have work in it that does belong to someone else. You still need to follow that copyright holder's terms and conditions when thinking about what you want to do with your work: display, sell, publish, etc. If a stock artists says NO to what you want to do with your final work (no matter what it is), it doesn't matter HOW MANY other stock arts you used in your work where the stock artists said it was okay, you still cannot do what you want because of that one person who says NO. It is THEIR ART that you used to create a new work with. And as the copyright holder of that work you used, they have a legal right to say how you use the new work you created. And you have the legal obligation to respect their wishes and refrain from infringing on their copyright.

As an example, I created this manipulation with quite a few stocks from deviantART. After the county fair was done, I had several offers from fair patrons who wanted to buy the work. Could I sell it? Not unless I got permission to make a one-time profit from each and every stock artist whose work I used in that manipulation. (in the end, one artist did NOT give me permission to sell it, so I drew a name and gave it away to the drawing winner for free) The point is that, while the finished new work is copyrighted to me, it used works in it that were copyrighted to other people. These stock artists allowed me the free use of their copyrighted works under certain terms and conditions which I followed, allowing me to create the new work and enter it into the country fair (got 2nd place too). However, not all of those stock artists were on board with me making a profit afterwards, so I was unable to sell it. If all the stock providers had said yes, that work might even be a print for sale.


This is not the end.



But it is a good start.
Copyright is confusing. Just remember that if you didn't create it, you can't do anything but look at it. If it is your idea but not put into a tangible form, anyone can use it legally. And check the following links to read up on copyright law.

US Copyright Office Website
What is Copyright - short, sweet and to the point
Rights for Artists - all about artists rights

And the following deviantART FAQS
FAQ #2: Where can I find the official deviantART Copyright Policy?
FAQ #204: If my print contains an image that isn't mine, can I still use it for print?
FAQ #750: Is permission needed when using collaborative artwork for commercial sales?
FAQ #157: Can I use things created by other people in my submissions?
FAQ #257: What sort of permission do I need to use someone else's work?
FAQ #743: Can I sell fan art as prints?

I get a LOT of copyright questions. I deal actively in copyright law, usually writing cease and desist letters or DMCA takedown requests, so I have been there and "done that." I also frequently write on copyrights and how they pertain to deviantART since many deviantART users are constantly unsure of what is and isn't okay (and who really read the whole TOS or Copyright Policy?). While there is a lot of gray area in copyright law, I am hoping that this rather lengthy article full of examples helps some of you understand why certain things just aren't okay - why your work was taken down by the staff, why an artist you commissioned got mad about what you did with the work you bought, why stock artists have so many rules, why some groups go nuts when they see official screenshots being posted, etc. This isn't meant to be all inclusive or legal advice. In the end, and it is sad to say, the only one who can make a legal ruling is a judge in a courtroom. I am hoping that if you read this and can understand it that you don't ever have a judge telling you what to do.

Permissions
*Khudozhnik-Stock has permission to reprint/publish this article in it's entirety (with credit) for their magazine project. You can read about the project and offer to submit content here. You can see who has offered to submit content and the progress here (in sta.sh).

:new: Update on 3/5/2013
An amazing member of the deviantART staff corrected me on part of the Work For Hire content I had listed, so please take some time to read that again - and check out the amazing video he linked to me here. (let's just say that $makepictures is AWESOME!) Also, a couple members who read this article gave some tips on including some additional information on Fair Use - since so many people think reposting with credit is fair use (it's not), I edited the Fair Use portion to spell it out for everyone. And finally, I did add a section under "Exceptions" for fanart as a couple users have commented that fanart is simply illegal - it isn't.
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:iconilantiis:
iLantiis Featured By Owner Apr 16, 2014  Hobbyist Digital Artist
Thanks!
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:iconmosh:
mosh Featured By Owner Mar 7, 2014  Hobbyist General Artist
Hey! This was totally what i needed. Very informative but i do have one question. If I take screenshots of anything in a movie, actors, scenery etc. and edit those screenshots significantly like repainting or a photomanip.. where would that fall under copyright? is it illegal to sell those works? I'm thinking its like the I used stock art scenario but I'm not 100%.

Thanks! :)
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:iconilantiis:
iLantiis Featured By Owner Mar 7, 2014  Hobbyist Digital Artist
Yes, that is illegal. Even though you took the screencaps, you are still simply copying copyrighted work. It would be the same if you screencapped your computer screen with a work on it you liked and did the same. Screencapping is just another way to save something. You still can't edit or manipulate it without permission from the copyright holder.
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:iconilantiis:
iLantiis Featured By Owner Feb 11, 2014  Hobbyist Digital Artist
Thanks!!
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:iconmelikebat:
MelikeBAt Featured By Owner Feb 12, 2014  Hobbyist Traditional Artist
Welcome! :)
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:iconballoonprincess:
BalloonPrincess Featured By Owner Jan 20, 2014  Hobbyist Filmographer
Wow!  This is truly awesome!  Thanks!  :)
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:iconilantiis:
iLantiis Featured By Owner Jan 20, 2014  Hobbyist Digital Artist
Thank you. Glad you like!
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:iconballoonprincess:
BalloonPrincess Featured By Owner Jan 20, 2014  Hobbyist Filmographer
:heart::heart::heart:My pleasure!:heart::heart::heart:

My mother used to write historical romances back in the 1980s and 1990s.  She was my "Go-To Lady" when I had questions about legalese when it came to artwork, writing, or whatever.  She had to deal with a lot of that with her writing back then.  So, Pop got a lawyer on retainer which we found was cheaper in the long run when it came to dealing with morons.  Her first lawsuit managed to get her a very cool MGB (a two door British car; purple in color with a white racing stripe) thanks to her lawyer.  She did so well that she was able to put me through college the first time around and even allow my folks to have quite the nest egg for their retirement.  :)
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