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2004-10-23 10:05:09
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This wiki is dedicated to helping Elftown members who want to know more about

Copyright and Intellectual Property


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It has become apparent to some members of Elftown that there is a widespread lack of knowledge about the concepts of copyright and intellectual property. So, for those who want to learn more about these concepts, and for those of you who wish to teach or share with others what you do know, please feel free to participate in the discussion, and post any information and/or links that you might think might be useful to others.

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So what is a Copyright, anyway?


A copyright is basically a form of ownership of an item. In this case, however, the item owned isn't exactly something you can touch (even though it may *involve* something you can touch) -- instead, it's ownership of the *idea* that the created item represents.

Not only does the copyright holder own the thing they've created (or had created for them -- copyright automatically belongs to the creator at the time the thing is created, but may be assigned or sold), they own the right to create copies and/or derivative works based on the thing created.

So, in short, copyright is ownership of the right to use or make copies of a thing that you've created.

What kinds of items are protected under copyright law?

Copyright, as defined by the US Government's official Copyright Office, "protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture". It is important to note that copyright law does not apply to facts, ideas, systems, or methods of operation, although it may apply to the way these things are expressed. Designs for tangible items, while themselves copyrighted (as designs) are covered under a different set of laws, known as "patent" laws, when it comes to their physical expression in the form of a manufactured item. So the blueprints for an item are a copyrighted "original work of authorship", but in order to protect, say, a manufactured item or manufacturing process, the plans themselves are then used to apply for a patent. A patent differs from a copyright in several ways, and may include the requirement that a physical model (of the item or process being patented) be created.

In short, physical things are patented, things that are expressions of ideas for the purposes of communicating the ideas (written works, pictures, dances, etc.) are copyrighted, and business names and logos are covered under yet another set of laws, as "registered trademarks".

But you can't lay claim to a fact or an idea, any more than you can lay claim to a law of nature - nobody can legally claim to own the information that "the sun rises in the east", or the concept of fairies having pointy ears and/or wings.

On the other hand, a person *can* lay claim to the idea of dragons of a certain description, which are ridden to fight interplanetary spores, for instance -- this has been done, and woe betide the person who infringes upon that ownership, by copying that representation without permission of its creator and copyright holder. Anne McCaffrey and her legal staff have no sense of humor about this, and she *will* pursue violators, no matter how private the use.

What is a derivative work?

This has turned out to be one of the areas of copyright law most often ignored by fantasy and SF artists and writers, and indeed, the entire concept of "Fan Art" is a quasi-legal one, as a result of these laws. A derivative work is any creation, including visual arts and products of the written word (as well as many other items, including performances, music, and more), in which the creator of the work makes use of another piece of creative work in its creation. This includes items which include someone else's images, photographs, characters,

I still don't understand -- can you give me an example?

If you buy a card with someone's artwork on it, you own the card -- not the right to make copies of the picture on it. If you buy a cassette tape with a song recorded on it, you own the CD -- not the right to play the song in the background on your TV advertisement (or web page). If you buy a book, you have the right to read it, loan it, or use it to prop up the wobbly leg on your table; but you don't have the right to photocopy it, write about the characters in the story, or even draw pictures of them, unless the copyright holder says you can.

Only the copyright holder has that right to copy and/or distribute copies of the thing they've created.

Why does copyright exist?

Copyright laws are necessary to protect the intellectual property of people whose work is primarily in the form of creating something intangible, like a song, story, image, computer program, etc.

This is because the creative arts are not like a banana, or the floppy disks and/or pieces of paper on which they are often created; these are things which only exist in one "instance", and cannot be copied. (You *can* photocopy a floppy disk, but it won't hold any data, and I hope I don't have to explain to any of you how ludicrous it is to imagine photocopying a piece of paper in order to reproduce it.) Since these things can only be in the possession of one person at a time, simple laws of ownership are enough to protect a person's rights in them.

The items to which copyright applies are not like that; they can exist in more than one place at a time, and copies can be made without going to the same amount of work that it took to make the original. So the products of a creative artist, or other creative person whose product is primarily in the form of a concept or other intangible, are not protected if the creator is seen as owning only the physical item created.

So what is Intellectual Property, and what does it have to do with my art?


Intellectual Property, quite simply, is any idea or concept which someone owns. This can include a copyrighted piece of music or artwork, a story, a piece of software, or even the character concepts around which a series of stories are based. This means that if you write a story about Captain Kirk and Mr. Spock, you're violating Paramount's copyright, by stealing and making use of something which is their intellectual property.

Why do I need to know this?

To quote [amuletts]. "If you infringe copyright it can get you into major trouble and if you are an artist it is one of the most important laws you need to be aware of."

You have a right to know what rights you have in your own creations -- and you need to know what rights others have in theirs. Otherwise, you are in danger of infringing on someone else's copyright, unintentionally, and the law doesn't care about intentions when you steal someone's idea, any more than it does when you steal their bicycle. "But officer, I thought it was mine" doesn't work as an excuse, in either case.

Where does "Fan Art" and "Fan Fiction" come into all of this?

I'm very glad you asked that; but, you may not be so happy with the answer. In short, "Fan Art" and "Fan Fiction" almost all (if not all) falls into the category of "Derivative Works", items created using another created item as a basis for the work, or as a recognizable portion of the completed work. Most of it (if not all) is technically illegal, and while some authors/artists/etc. allow and/or even encourage fans to build on their own work, considering it a form of free advertising, good public relations, or just a necessary part of building a loyal customer base, others are very strict about enforcing their rights, as many a misinformed fan has learned to their sorrow.

This essay (c) 2004 by Rondel Linder

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You can learn more at:

Copyright Alternatives and Copylefting


Copyright / Intellectual Property Links


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Please feel free to submit links and information to these pages, if you have anything useful to contribute.

NOTE: Please keep all comments on these Wiki pages *on topic* to the Wiki -- i.e., related to the subjects of copyright and/or intellectual property.

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2004-07-07 [Rondel]: ...*unless* I was creating a parody or satire, or quoting a small excerpt in a way that was not fundamental to my creation (like including a short quote from "Catcher in the Rye" in another novel, that was otherwise unrelated to Salinger's book). If I write a story called "Sorrow's End", but it's NOT about Elfquest elves, then I'm not violating the Pini's copyright, although there is a place of that name that is central to some of their stories. It's about whether your work "derives from" the other, not really about overt connections or the inclusion/omission of direct citations, such as in the title, for instance. I hope that this response is useful -- I really recommend reading the links.

2004-07-07 [Rondel]: By the by -- the parody/satire "out" is what protects Mad magazine, for instance, or "The Harvard Lampoon". But somehow, I don't think that you're talking about something that falls in that category. You may wind up having to consult a lawyer, if your question can't be answered by the online sources, such as those listed in the Copyright / Intellectual Property Links wiki.

2005-03-08 [Flammifer]: For a point of view on how it is on deciding how your work is to be reused, as opposed to how to reuse other people's work, look at Creative Commons :)

2006-03-22 [Zeddacus]: you say that i cant even draw a picture of someone else creation due to copyright? I though it was only infringement if you use it in a certain way, like sell it or something, if it's just for my personal use is it still violating copyright laws?

2006-03-22 [iippo]: As far as I've understood, you can't own the copyright for any "derivative" work you have done (fan art), because you can't own copyright for someone elses creation. And if the original copyright owner doesn't like your derivative work, I think they have the right to take legal actions... Only thing not falling to this category would be satire: Barry Trotter is not breaking copyright.

2006-03-22 [iippo]: Also see it this way. Say you sold prints of your image somewhere on the net, or sold the access to view it. If I then took it and distributed it freely - not sold it, just gave it to everyone - no one would pay you for your work anymore because they'd get it for free from me. And if I just made one print for myself, I'd still be stealing from you, because I should pay you to get that one print.

2006-04-02 [Rondel]: Technically, [Zeddacus], you are correct about the degree to which your actions are legally limited by the most extreme versions of copyright law (such as the US copyright laws). Many people (including various artists of all types) feel that restriction to be a little draconian, & tend to allow for "personal use", or even turn a blind eye to not-for-profit reproduction & distribution of derivative "fan art". However, others do not, & have been known to (successfully) prosecute creators of "fan art" under the derivative works clause. This is why Elfwood won't allow any fan art relating to the works of Anne MacCaffrey, for instance; she has a history of prosecuting for derivative use.

2006-04-02 [Rondel]: Other artists have gone on record as saying that they welcome derivative artworks based on their works, & consider it to be a free & effective form of advertising & promoting their work -- but the law is still strict, it's a matter of the artist's decision not to prosecute the case.  Technically, you could still be brought up on charges even without the original artist's agreement with the letter of the law being applied to your private non-commercial use of their artwork. This regularly happens to alternative musicians, for instance; their fans will be prosecuted (by police & record labels) for sharing free MP3s of their work, despite the artist's express wish that they be free to do so.

2006-09-04 [jsun]: Also [Zeddacus], judging by your name, I'd guess that you be a Sword of Truth fan. Have no fear of being prosecuted by Terry Goodkind if you draw fan art. Of course you should never sell it but from every angle Terry appreciates your fan art and encourages it on his website. (Even if I guessed wrong on your thoughts this is still an informative matter. You should be able to find out very easily whether or not an author supports fanart by doing a google search for "blahblah Fan Art". Look at enough links and you could find fan art on the author's site or somewhere else where the author is involved. This way, you'll know ahead of time)

2006-09-05 [Rondel]: That's very good practical advice, [jsun]! Thanks! Of course, it doesn't change the situation on the legal front, but when all you want to do is draw pictures as an homage to your favourite author or artist, it's really nice to know when you can do so without risking giving offense, and/or facing potential legal charges. If you want to go right to the heart of the matter, you might even want to add the search term "prosecute" to that Google search; if you do that with Anne McCaffrey, for instance, you'll find a number of references to the fact that she will prosecute people for any derivative work based on her creations (particularly the Pern series). But if the author has an actual "Fan Art" page up on their own official site, that's the opposite extreme, and you know you're probably on safe ground, as long as you don't try to sell anything based on their work. And besides, it's a nice idea to send your fan art to the person who inspired it, if you know that you have the opportunity to do so. :)

2006-12-04 [xido]: I posted a recent comment on Copyright / Intellectual Property Links, which had to do with referencing/bibliographic resources utilized in posting things like free info on the wikis... I have considered posting a page about APA Formatting for use with the wikis and also with my own personal Wiki Fiction Roleplay Guild, which borrows much information from published Roleplaying Games like D&D, Vampire, Changeling, etc...
Any input that you can give me for current or linked material would be helpful, especially if someone else on Elftown has already begun such a helpful page.
Thanks!
-will

2007-06-03 [Caoinceol]: I have a couple questions
is all the artwork in elftown officially/legally copyrighted when it says 'copyright' on it? I am curious, because I want to know if elftown has it's own copy right labeling sytem thing or if copyrighted artwork is officially copyrighted (I know some are, but I was wondering about the others which I can't tell if they are or not),
and does anyone know if it costs money for those official copyrights? I haven't copyrighted anything before

2007-06-04 [iippo]: Basically, you automatically hold copyright to anything you make that is original enough. You can go through official steps to register your copyright somehow, but ET nor anyone else won't do that for you, it's a lenghty process.

Quoting Wikipedia:
"Thus, as with property, a copyright need not be granted or obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape or a letter), the copyright holder is entitled to enforce his or her exclusive rights. However, while a copyright need not be officially registered for the copyright owner to begin exercising his exclusive rights, registration of works (where the laws of that jurisdiction provide for registration) does have benefits..." From the Wikipedia entry on copyright: http://en.wikipedia.org/wiki/Copyright
Also see http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

2007-06-04 [xido]: interesting.

2007-06-05 [Rondel]: Thanks for posting that answer [iippo] -- my own didn't go through, that must have been when I lost my connect last night. You've covered basically everything I would have said in answer, and I'll be sure to add those links to the links page. ( Wikipedie, what *would* we do without you? :D )

Other than that it is useful to note one's reservation of copyright on original pieces (so ET's noting the copyright on your artwork DOES work in your favour), and it's important to use the © symbol, or the word "copyright", rather than the typographical shorthand of "(c)", which has no legal meaning.

Also, filing a legal registration of your copyright (while expensive), can be absolutely essential if you have to *enforce* the copyright in a situation where it's worth taking it to court -- for instance, if the item is a part of your livelihood, like an author's new novel, or a software designer's latest product.

Amateur creative works, or even low-end professional pieces, where you're never likely to find yourself in court over ownership, are generally not "worth" registering, simply in terms of balancing the question of being able to afford the cost, against the chance that you'll ever have to make use of it.

For minor infractions, like getting a website to pull an unauthorized use of your artwork by some art thief, registration of that sort generally isn't necessary, particularly if you have already established ownership by having the item displayed as your own work, for some time prior to the occurrence of the theft.

But I must emphasize that this is just a statement of my own experience, not to be taken as official in any sense.

2007-06-05 [Caoinceol]: Thankyou for all the help. It is some thing I've been trying to figure out, I guess I will just have to play tug-of-war and see what I have that is worth the money for being copyrighted and which isn't. Thanks again =)

2007-06-05 [Cascading water lillies]: If you keep the stuff that you consider personal, (as in not floating about in cyber space, a free domain) and potential candiadates for publishing, i.e novels and short stories and articles that you might want to try to make your living with, and you sell to a publisher, then they will take care of all the copyright issues, I think.

I also think (don't quote me on this though) that if you post up lots of your novel, then publishers don't really like this,as why would someone pay for something that they can just as easily get for free from somewhere like Elfwood? Just a thought.
Rememeber, there are potentially numerous ways in which someone can plagurize your work without you ever, ever knowing. Scary thought, but the kid at school who got an A+ in English the other week in deepest China or where ever, who just pulled a random poem or short story, essay etc of off the net, happens more than I care to say.) I myself, have been a victim of this, and I hate plagurizer's with a vengance.

2007-06-06 [Caoinceol]: I know what you mean, and I know ideas can't be copyrighted, but I hate it when I find someone copied an idea of mine, so I completely understand.
I am just keeping a heads up because I don't think I have any work that's good enough yet to copyright, but I am still leery of putting anything on the internet, which includes elfwood. I might still put some stuff up eventually.

2007-07-28 [Rondel]: Just to make sure that you're clear on this, [Caoinceol], your work IS already under copyright, from the moment you finish creating it. The thing that costs money is the REGISTRATION of that copyright with an agency, so that a record of it exists in such a way that it can be used in the legal enforcement of your copyright. You CAN actually take action to enforce your copyright in lesser ways (such as reporting theft of material whose copyright you own, to someone's ISP or to a site such as Elfwood or DeviantArt), without having to go to the trouble or expense of registering the copyright. If you can demonstrate that you are the creator (such as by having the original of a digitized artwork, or by showing that the piece has been taken pixel for pixel from a copy that has been available on YOUR website for the last 6 years, for instance), most non-professional context issues can be dealt with in your favour. Sites such as Deviant Art are very hostile to art thieves, and simply reporting the stolen item to them, and being able to show ANY sort of supporting evidence in your favour, is generally QUITE adequate to get them to take action and remove the offending stolen material.

But to me, the most important point is to never lose sight of the twin facts that a) you automatically own copyright in all of your own original works from the moment that they are created (* as long as they aren't based on someone else's work which would make them "derivative works"), and b) you need to be practical about how freely available you make any work if you want to retain control over who it reaches, and how, etc.

Putting stuff up on the internet doesn't necessarily preclude later professional publication of the same work -- but it IS true that many publishers really do prefer "first publication rights", and you can't exactly give them that if the story's been available for free on the web for 6 years. Some only care about previous hardcopy publication (e.g. print), and in some cases publishers have actually found a work on the web and contacted the author with a request to publish it professionally. It can work in your favour, it can work against you -- but a little common sense goes a long way.

I personally wouldn't put up more than samples of any written work I hope to eventually publish professionally, rather than the complete work. Samples can serve as "teasers" to get a reader (and/or publisher) interested, and are more likely to gain you readers than to cost you sales. For digital artworks, I tend to favour embedding both a visible and an invisible digital copyright into the digital image -- and not in the form of a little note down at the bottom corner where it can be easily cropped off. A nice light-but-distinctive copyright logo overlaid over the central focus area of the image does a lot to deter simple "download and repost" theft of your pictures. There are also some wonderful digital watermark services which can embed a digital code into your images, which will show up in any program equipped to read it, so you can prove that the image is yours -- but that won't protect you against screenshots, so posting images in a lossy format, and keeping a non-lossy version of the original, is a good step to take, if you're not going to put a visible copyright message into the body of the picture itself.

As for "copying an idea", as many a writer has said when approached by someone who "has a great idea for a novel -- you write it, and then we'll split the earnings", ideas themselves are not that hard to come by, and many of them have been used in different ways for hundreds or even thousands of years, without treading on the toes of the previous incarnations -- it is the writing, the fleshing out of the idea into a realized form, which takes the work, and creates the distinctive individuality of the result. Look at the works of the classical masters: they tended to do standard themes, such as "Madonna and Child", "The Crucifixion", "Venus Arising from the Waves", etc. -- yet each proclaimed its workmanship in every line of the finished piece, and was distinctly different.

The same goes for the stories Shakespeare took from Boccaccio, and Boccaccio in turn from yet older sources -- each rendition was distinctly the creation of its own author, despite the common idea shared at their cores.

That's not to say that I don't know how frustrating it can be to have someone latch onto a particularly original approach one has laboured hard to come up with, and copy it (often poorly) to garner unearned praise for the concept rather than their execution of it... ...but still, there is only so far that "idea theft" can be taken as a meaningful concept to be protested against.

Which is not to say that I agree with the failure of Apple's lawsuit against MicroSoft for copying the look and feel of their GUI interface in the creation of Windows... ...as that went a long way beyond copying the basic idea into the realm of copying the execution and rendition of that idea... ...but it does serve to demonstrate that it can be a hard call to make, when one is dealing with theft of the underlying idea, rather than exact copying of an original. *sigh* Besides, a lot of the Mac GUI interface in turn came from the Alto, by Xerox, just as each of us, as artist or as writer, tends to be inspired by our predecessors even in the creation of our most novel innovations. We're *all* "standing on the shoulders of giants", so it's hard to lay exclusive claim to the inner visions we come up with when they all draw on the outer view.

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2007-07-29 [Caoinceol]: Well thankyou very much! That really cleared up what I was wondering about. I have been wondering about that, not just for here on elftown but just in other cases as well. I hope you didn't feel like you had to write so much.
But thankyou it was all very very helpful! No more confusion.
And lawsuits are just always a mess to me. There always seems to be another way to create one. Most of the time an idea isn't always only thought of by one person either, one person on one side of the world may discover an idea, but someone on the completely opposite side of the planet may discover that same thing, sometimes around the same time as well.  
Thanks again! ^^

2009-12-29 [Nioniel]: Thank you, this wiki is proving to be most useful lately.

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