I stumbled across this link
earlier today describing an artist's experience with the deviantArt staff, in which a report regarding a trace of the artist's work was dismissed callously.
Well, you all know how much I love yapping on about copyright...
PART THE FIRST: THE DMCA TAKEDOWN
In the description of the tumblr post, the artist indicates that they submitted a DMCA takedown notice to deviantArt regarding the traced piece. In the screenshot you see that the admin simply disregards the request and refuses to remove it.
Before getting into the issue of tracing, this part had me confused. I'm no stranger to sending DMCA takedown notices to DeviantArt regarding members making use of my intellectual property, and I've never been met with a response like that. In fact, I'll copy and paste my most recent response from the admin damphyr:
Thank you for contacting deviantART, I will be assisting you with your support ticket.
The content which you have specified has been reviewed and removed by our staff and this member has been issued a written warning and advised of our copyright policy.
Please contact me again if you need any further assistance in this matter.
This is a pretty standard response to a takedown notice and falls in line with the DMCA. If you're not familiar with the DMCA, you can review my guide here:
Tutorial: Legally Get Your Stolen Art Removed
Here's a quick tutorial for anyone who might find their artworks on a website without their authorized permission. This is the method that you legally go about having copyright infringement dealt with, so your request (if submitted to a host located in the US or other countries that respect copyright laws) will not go ignored. You do not need a lawyer to file a DMCA takedown notice, you only need to be the copyright holder of the work. If you created the work, it's copyrighted to you.
You will usually not get much of a response if you try to submit an informal copyright notice through Support requests on a website. This method is what's outlined in Section 512(c) of the Digital Millenium Copyright Act, and what service providers will respond to.
STEP 1: See if the website has a copyright section in the Terms
When a takedown notice is submitted in official capacity by a copyright holder -- basically, it follows the requirements outlined in the DMCA, including such information as identifying the work, providing contact details, making statements under perjury and in good faith, etc -- the service provider will remove the content being targeted by the notice. The reason for this is safe harbor - a service provider such as deviantArt is not liable for copyright infringement for hosting infringing work provided they don't have actual knowledge of the infringing work. Takedown notices are used as an official method for copyright holders to inform service providers of infringing work, and if they comply with the takedown notice, their safe harbor is preserved.
Under DMCA law, there are a few important things to consider:
a. When a takedown notice is received by a service provider, according to ‘‘§ 512. Limitations on liability relating to material online in the DMCA, the service provider must expeditiously remove the alleged infringing work to retain their safe harbor. If they ignore a takedown notice, this means that the service provider has actual knowledge of the infringing work and loses that safe harbor.
b. When a takedown notice is received, the infringing party is told why the piece was removed and instructed to submit a counter notice if they wish to contest the removal of the work. A counter notice provides information about the other party and that the other party accepts legal proceedings from the original complainant.
c. If the counter notice is submitted and transmitted to the original complainant, then the complainant must initiate the lawsuit within 10-14 days of the counter notice being submitted. If the complainant does not submit their lawsuit, then the service provider is free to re-enable access to the work originally targeted by the takedown notice.
d. Falsifying a takedown notice is punishable. Very punishable. Attorney's fees, damages, etc. by both service provider and copyright holder.
... Okay, now that I'm done ranting about the groundwork, the question I have to pose is: was that DMCA takedown notice submitted improperly? I have to wonder about whether the artist submitted an actual, legal notification under the DMCA or submitted an "art theft" report via deviantArt's help center. The second can be safely ignored without constituting actual knowledge of infringement and invalidating safe harbor (MAYBE! That's questionable!), but the first could absolutely not be ignored without invalidating safe harbor.
If the infringing work had not already been taken down by the infringing artist, I'd suggest the artist double check their DMCA takedown notice was proper order and resubmit it, because ignoring a takedown notice and dismissing it is WEIRD AND ILLOGICAL. Safe harbor's pretty important if you don't want your business liable for copyright infringement done by third parties. And if a takedown notice is falsified, there are already provisions in the DMCA that indicate you can sue the lying party for your attorney's fees, damages, etc.
So, yeah. What?
PART THE SECOND: TRACING
Moving onto the second topic at hand, which would be tracing.
Tracing's kind of a funny situation. On one hand, a lot of artists have done it, as it's a highly debated method of improving skills and developing as an artist. On the other hand, sharing any work that was traced, especially without proper credit to the original artist, is highly frowned upon. Some artists don't want their work traced at all, even with credit given, and that's their right.
A derivative work is a piece of content that is based off a copyrighted work. For instance, Hunger Games, the book, is a copyrighted work by its author, and the Hunger Games movies are derivative works because they are based off the books. The right to a derivative work can be licensed out by the copyright holder, as is done in situations where books become movies. A stakeholder (the studio, for instance) signs a contract with the copyright holder indicating the scope of their license, payment terms, etc.
Taking a picture, which was copyrighted upon the moment it was placed into fixed form (drawn on Photoshop, on a piece of paper, etc.), and tracing it is considered creating a derivative work. So would be taking a drawing and creating a sculpture of it. For example, in a high profile case, an artist named Jeff Koons created a sculpture based off a photograph of puppies, and he was sued successfully for copyright infringement.
When it comes to whether a work is considered derivative and infringement of the original work, one method that courts use to determine whether it is infringing or not is to see whether the average layperson would recognize it as a copy. Considering so many people are looking at the two example pictures from the original tumblr post and going "oh man, that definitely is a line for line trace in the pose!" I guess we can safely assume the average layperson would recognize it is a copy.
What if it's transformative, you ask? Transformative by definition typically refers to situations of parody, criticism, comment, etc. For example, if you wanted to criticize My Little Pony and Hasbro and created a character in their style to do so (perhaps with a stack of money as the cutie sign), you'd probably be safe under fair use laws (but do you really want to go head to head with Hasbro in seeing who has enough money to pour into lawyers...).
Ultimately, taking something and making some changes to it (in the case of the upper body of the drawing in the tumblr post) doesn't automatically make it okay. It's indeed true that you can't copyright a pose, but if someone traces over your specific illustration of said pose to the point where you can overlay both images and they match exactly, you have a pretty good case against it as a derivative work.