When Digital Art Works Infringe
What is art? Art is an image expression created by an individual using some type of media. Traditional media typically includes acrylic paint, oil paint, watercolor, clay or porcelain sculpture, screen printing, metal etching and printing, screen printing or any of any other tangible type media. Art can also be made from found objects such as bicycles, inner tubes, paper, trash, tires, urinals or anything else that can be found and incorporated. Sometimes the objects are painted, sometimes not. Art is the expression once it has been completed.
So, what’s different about digital art? Nothing really. Digital art is still based on using digital assets including software and 3D objects used to produce pixels in a 2D format that depicts an image. Unlike traditional media, digital media is limited to flat 2D imagery when complete (unless printed and turned into a real world object.. which then becomes another form of ‘traditional found art media’ as listed above).
What are copyrights? Copyrights are rights to copy a given specific likeness of something restricting usage to only those that have permission. That is, an object or subject either real-world or digital-world has been created by someone and any likeness of that subject is considered copyright. This has also extended to celebrities in that their likenesses can also be considered copyright by the celebrity. That is, the likeness of a copyrighted subject is controlled strictly by the owner of the copyright. Note that copyrights are born as soon as the object or person exists. These are implicit copyrights. These rights can be explicitly defined by submitting a form to the U.S. Copyright office or similar other agencies in other parts of the world.
Implicit or explicit, copyrights are there to restrict usage of that subject to those who wish to use it for their own gain. Mickey Mouse is a good example of a copyrighted property. Anyone who creates, for example, art containing a depiction of Mickey Mouse is infringing on Disney’s copyright if no permission was granted before usage.
What is fair use? Fair use is supposed to be a way to use copyrighted works that allows for usage without permission. Unfortunately, what’s considered fair use is pretty much left up to the copyright owner to decide. If the copyright holder decides that a depiction is not considered fair use, it can be challenged in a court of law. This pretty much means that any depiction of any copyrighted character, subject, item or thing can be challenged in a court of law by the copyright holder at any time. In essence, fair use is a nice concept, but it doesn’t really exist in practice. There are clear cases where a judge will decide that something is fair use, but only after ending up in court. Basically, fair use should be defined so clearly and completely that, when something is used within those constraints, no court is required at all. Unfortunately, fair use isn’t defined that clearly. Copyrights leave anyone attempting to use a copyrighted work at the mercy of the copyright holder in all cases except when permission is granted explicitly in writing.
Public domain is a type of copyright that says there is no copyright. That is, the copyright no longer exists and the work can be freely used, given away, sold, copied or used in any way without permission to anyone.
3D Art Work
When computers first came into being with reasonable graphics, paint packages became common. That is, a way to push pixels around on the screen to create an image. At first, most of the usage of these packages were for utility (icons and video games). Inevitably, this media evolved to mimic real world tools such as chalk, pastels, charcoal, ink, paint and other media. But, these paint packages were still simply pushing pixels around on the screen in a flat way.
Enter 3D rendering. These packages now mimic 3D objects in a 3D space. These objects are placed into a 3D world and then effectively ‘photographed’. So, 3D art has more in common with photography than it does painting. But, the results can mimic painting through various rendering types. Some renderers can simulate paint strokes, cartoon outlines, chalk and other real world media. However, instead of just pushing pixels around with a paint package, you can load in 3D objects, place them and then ‘photograph’ them.
3D objects, Real World objects and Copyrights
All objects become copyrighted by the people who create them. So, a 3D object may or may not need permission for usage (depending on how they were copyrighted). However, when dealing with 3D objects, the permissions for usage of 3D objects are usually limited to copying and distribution of said objects. Copyright does not generally cover creating a 3D rendered likeness of an object (unless, of course, the likeness happens to be Mickey Mouse) in which case it isn’t the object that’s copyrighted, but the subject matter. This is the gray area surrounding the use of 3D objects. In the real world, you can run out and take a picture of your Lexus and post this on the web without any infringement. In fact, you can sell your Lexus to someone else, because of the First Sale Doctrine, even though that object may be copyrighted. You can also sell the photograph you took of your Lexus because it’s your photograph.
On the other hand, if you visit Disney World and take a picture of a costumed Mickey Mouse character, you don’t necessarily have the right to sell that photograph. Why? Because Mickey Mouse is a copyrighted character and Disney holds the ownership on all likenesses of that character. You also took the photo inside the park which may have photographic restrictions (you have to read the ticket). Yes, it’s your photograph, but you don’t own the subject matter, Disney does. Again, a gray area. On the other hand, if you build a costume from scratch of Mickey Mouse and then photograph yourself in the costume outside the park, you still may not be able to sell the photograph. You can likely post it to the web, but you likely can’t sell it due to the copyrighted character it contains.
In the digital world, these same ambiguous rules apply with even more exceptions. If you use a 3D object of Mickey Mouse that you either created or obtained (it doesn’t really matter which because you’re not ultimately selling or giving away the 3D object) and you render that Mickey Mouse character in a rendering package, the resulting 2D image is still copyrighted by Disney because it contains a likeness of Mickey Mouse. It’s the likeness that matters, not that you used an object of Mickey Mouse in the scene.
Basically, the resulting 2D image and the likeness it contains is what matters here. If you happened to make the 3D object of Mickey Mouse from scratch (to create the 2D image), you’re still restricted. You can’t sell that 3D object of Mickey Mouse either. That’s still infringement. You might be able to give it away, though, but Disney could still balk as it was unlicensed.
But, I bought a 3D model from Daz…
“am I not protected?” No, you’re not. If you bought a 3D model of the likeness of a celebrity or of a copyrighted character, you are still infringing on that copyrighted property without permission. Even if you use Daz’s own Genesis, M4 or other similar models, you could still be held liable for infringement even from the use of those models. Daz grants usage of their base models in 2D images. If you dress the model up to look like Snow White or Cruella DeVille from Disney’s films, these are Disney owned copyrighted characters. If you dress them up to look like Superman, same story from Warner Brothers. Daz’s protections only extend to the base figure they supply, but not once you dress and modify them.
The Bottom Line
If you are an artist and want to use any highly recognizable copyrighted characters like Mickey Mouse, Barbie, G.I. Joe, Spiderman, Batman or even current celebrity likenesses of Madonna, Angelina Jolie or Britney in any of your art, you could be held accountable for infringement as soon as the work is sold. It may also be considered infringement if the subject is used in an inappropriate or inconsistent way with the character’s personality. The days of Andy Warhol are over using celebrity likenesses in art (unless you explicitly commission a photograph of the subject and obtain permission to create the work).
It doesn’t really matter that you used a 3D character to simulate the likeness or who created that 3D object, what matters is that you produced a likeness of a copyrighted character in a 2D final image. It’s that likeness that can cause issues. If you intend to use copyrighted subject matter of others in your art, you should be extra careful with the final work as you could end up in court.
With art, it’s actually safer not to use recognizable copyrighted people, objects or characters in your work. With art, it’s all about imagination anyway. So, use your imagination to create your own copyrighted characters. Don’t rely on the works of others to carry your artwork as profit motives are the whole point of contention with most copyright holders anyway. However, don’t think you’re safe just because you gave the work away for free.