As we all have noticed over the last few weeks, there is a rather large amount of confusion over international copyright laws, specifically the issues surrounding Fair Use, and what is considered Stock Photography or Public Domain. This lengthy article will attempt to make these issues clear in language that everyone should be able to understand. I encourage everyone to read it!

If I have failed to make this completely clear, please leave a comment here or feel free to note me for a more detailed explanation.

Firstly, let us make sure that everyone understands the basics of copyright law.

What is copyright? ?
Copyright laws give you complete control over your own creations- who gets a copy of it, who gets to use it, what it gets used for, and how it is used.

What can be copyrighted?
It’s easier to explain what is not protected. Facts, concepts and ideas may not be copyrighted- only the tangible creation which expresses the idea can be copyrighted.

When does something become copyrighted?
If the work has been created in a tangible form which may be passed from person to person it is automatically protected by copyright law the moment you are finished with it. This includes works set to paper, wood, stone, etc, as well as computer files saved to disk.

Don’t I have to file with somebody and pay a fee?
No. Everybody gains copyright protection automatically and for free. Filing with the copyright office simply gives you additional abilities to use in the protection of your work- such as the right to sue an infringer for monetary damages.

How long does copyright protection last?
For modern day works your completely original creations will be protected for your lifetime plus 70 years after your death. For works made before 1976 things get a little more tangled because of differing laws at the time of their creation.

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Public Domain

It is a common misconception that "everything on the internet is in the public domain." This is of course incorrect.

The only resources which may be considered to be in the public domain are those for which the copyright has expired or has not been renewed (typically those made before 1923), those works which were created by the government, or those works in which the copyright holder has specifically decided to place into the public domain.

Resources which are in the public domain may be used in any manner whatsoever by whoever wishes to use them.

Never assume that a resource is in the public domain; just because it doesn’t have a © symbol doesn’t mean it is not protected. Current laws do not require you to place the © on a work, it is simply encouraged.
It is far more prudent to assume that any resource you have found is protected by copyright.

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Stock Resources.

Stock Resources are things which the copyright holder has decided to make available for other people to use under certain conditions.

There are almost always Terms and Conditions set by the copyright holder, such as “Don’t sell it”, “Don’t add it to a collection”, “Don’t use it for something you are getting paid for”, “Don’t let others download it”, and so on.

Make sure that you read and understand the terms completely; Stock does not mean the same thing as Public Domain and you are not necessarily allowed to do whatever you want with the resource. If you do not understand something in the TOS then play it safe and do not use the resource at all.

Also beware of websites which claim to be “Stock Resources” while at the same time posting something like this:

“All pictures contained on pages herein were collected freely from the internet and are believed to be public domain. If you are the owner of any of the images that appear on this site, please send an email to the webmaster.”

They are not legitimate stock resource websites, the above disclaimer is simply a feeble attempt to feign ignorance and skirt the law.

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Fair Use

This is probably the most confusing part of all of this.

Part of the problem with Fair Use laws is that they were intentionally written in the same manner as Free Speech laws: namely vague.

This is not so much to protect you and your usage of something as it is to give a Court of Law maximum flexibility in judging what an infringement of copyright is.

So what is Fair Use exactly?

Fair Use basically allows you, under certain conditions, to use small portions of copyrighted works without the need to obtain permission from the owner. In all cases of Fair Use, by law, the original work and author MUST be credited.

The Fair Use exceptions which most apply here at deviantART are Parody and Educational uses.

Parody or satire simply allows you to closely mimic a copyrighted work with the intention to amuse an audience. An example of this can be found in the old newspaper comic strip “Outworld” by Berke Breathed. In his Sunday strip Breathed was able to closely mimic the Disney character “Mickey Mouse” with his introduction of “Mortimer Mouse, the estranged, anatomically correct brother of Mickey,” a character which sported among other things a cigar, 5 o’clock shadow and a PG-17 attitude.

The Educational use may of course be found in the tutorial section here. Small examples may be used here to demonstrate the potential results of the procedure which you are attempting to outline without the need to consult the original owner.

THIS IS THE MOST IMPORTANT PART OF THIS ARTICLE:

So how do you determine if it is Fair Use?

There are 6 basic rules which the courts will use in determining Fair Use ;

Rule 1: Are You Just Copying (and Pasting) Or Are You Creating Something Entirely New?
Are you just copying it verbatim or are you truly transforming the work into something completely different? The more changes you make the more likely it is to be Fair Use. Bear in mind though that chances are if the original can be recognized at all it most likely will not be a Fair Use of the work.

Example: Carefully cutting out Britney Spears and putting her on a blue background is not creating something entirely new and it is easily recognizable. Carefully cutting out her eyes and working them creatively into a website interface is making something completely new and the original is transformed beyond recognition.

Rule 2: Don’t Compete With Your Source Material
If the public can get it from you why should they have no reason to go to the original author.

Example: The purpose of a wallpaper with a cutout of Goku from “DragonBall Z” is to provide a picture of Goku to the public; this is competing with the original artist/company who also wishes to provide the image of Goku to the public.

Rule 3: The More You Use The Less Fair Your Use Becomes
I think this is pretty self explanatory.

Example: Pasting in the entire CD cover of your favorite band is not as Fair as just pasting in the title.

Rule 4: How Important Is The Material That You Used?
The more important the material is to the original, the less likely that your use is Fair Use.

Example 1: (Real life court case) The Nation magazine obtained a copy of Gerald Ford's memoirs before their publication. In the magazine's article about the memoirs they quoted, verbatim, 300 words from the 200,000 word manuscript (or about .0015% of the document). The Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the "heart of the book; the most interesting and moving parts of the entire manuscript," and that pre-publication disclosure of this material would cut into value or sales of the book.

Example 2: The photograph of Jessica Alba features her, and just her, in an attractive pose. Cutting her out would be taking the “heart of” the photograph, or “the most interesting” part.

Rule 5: Just Giving Credit Doesn’t Make It Okay
Either you have permission or you don’t. Either your usage complies with the Fair Use exception or it doesn’t. Just sticking the owners name on there doesn’t change any of that.

Rule 6: The Only Time You Do Not Have To Worry About This Is When You Keep It For Personal Use
The biggest confusion about Fair Use comes from the fact that this exception allows you to do pretty much whatever you wish with a copyrighted work on a personal level.

The key words here are “Personal Level ”.

It stops being personal the moment you make it available for download here at deviantART due to the public nature of the internet (or anywhere else for that matter).

With all this in mind I encourage everyone to look through their respective gallery of work and remove those things which are not compliant with deviantART's submission agreement before somebody else does it for you.

You are free to disagree with the laws but the fact is that these are laws that everyone, everywhere, must follow. While it may seem unfortunate, welcome to reality. These laws were designed to protect you, the artist, therefore you should be happy that you are protected.