Overview on Copyrights

The word "copyright" comes up a lot these days, both in the real world and in There, and there are a lot of questions about copyrights. Many members share their views on copyrights amongst themselves, and many of these views are in conflict with the interpretations used by There. In this article, we would like to discuss the topic of copyrights and how they affect the members of There.

I. What are copyrights?

When a piece of artwork is created, whether it is something painted on canvas or written on paper, the artist or author is assumed to have the right to decide how this creation will be published. This is the "copyright" of the artist or author (from here on, we will refer to the artist or author as the "creator"). What this right grants the creator ownership over the artwork, and allows him/her to control the publishing of the created artwork and, more importantly, to reap the rewards from the publishing of the artwork.

The copyright of the creator is an "automatic" right; that is, when a creator creates an original piece of artwork he/she is automatically assumed to have the copyright over the created artwork. (Note that if an artist or author is hired to create the artwork, the employer is assumed to be the creator and owner of the copyright) Creators traditionally mark their artwork with the word "Copyright," the copyright symbol ("©") and include their name and the date of first publishing. By inscribing their works with these marks, creators are making it known that they are exercising their copyrights on the artwork, and this is an internationally accepted practise. While a copyright is an automatic right granted to creators when their artwork is created, the creator can opt to register their copyright with the authorized local agency (the Library of Congress, here in the US) so that there a legal record of the creation of the artwork (this is required if legal action is necessary to resolve a copyright dispute).

Before we continue, there are two words that have been used multiple times so far in this article that I believe need further explanation; artwork and publishing. When most folks hear the word "artwork," the first thing that comes to mind are paintings and sculptures hanging on museum walls, but the word also applies to literary works (like novels and stories), music, photographs and performances (yes, that includes Sunday morning NFL Football). Believe it or not, computer programs are also considered copyrightable artwork; they are categorized as "nondramatic literary works," a classification that also includes textbooks, directories and catalogs. "Publishing" refers to the act of making the artwork available to a public audience, meaning at least one other person other than the creator. This can be as simple as showing it to a friend or as complicated as releasing the work in a magazine, book or the Internet.

Also, because this is usually a point of confusion for many, I would like to clarify *when* a creator can claim copyright. As stated earlier, the creator is assumed to have an automatic copyright when the original artwork is created, which is when an exact "expression" of the artwork is realized. Until that moment, the concept for the artwork was simply an "idea" in the creator's mind. There is a very important distinction between the "expression" and the "idea," because creators cannot claim copyright protection on an idea, but they can on the actual expression of that idea (ie. fully realized artwork). For example, if I had an idea for a painting, I could not go to the Library of Congress, describe to the idea to them and expect to get a legal copyright on this idea. They would require that I present the actual painting to them for evaluation before I can be granted a copyright on the artwork.

So a copyright grants the creator the right to control the publishing of his work and to benefit from it. This means that if artwork is used or reused without the authorization of the creator, his/her copyright has been violated ("infringed") and the creator can take legal action against the infringing parties. It should be noted that copyright laws are international; there are currently 160 countries that are parties to the Berne Convention, which established the international treaties for the protection of literary and artistic works. While copyright laws and the enforcement of these laws do differ from country to country, a copyright holder from one country can indeed pursue legal action against an infringing entity in another country, and there have been many documented cases of this happening.

Now, there is a principle called "fair use" that does allow for the use of copyrighted material without requiring authorization from the creator. Under the fair use rules, portions of the copyrighted artwork can be reused for purposes of commentary and criticism. This principle allows, for example, a writer to publish a review or critical article about a novel and include direct quotes from the work without the permission from the novel's author. While fair use is often cited as a defense against infringement, there is a very fine line between what is fair use and what is copyright infringement, and most courts settle disputes strictly on the guidance provided by local copyright laws.

One very important thing to remember about copyrights is that they do not last forever. While the exact length of time copyrights are valid depend on the local laws of the land (and in some cases can be extended), the generally recognized rule is that a copyright lasts for the lifetime of the creator plus 70 years. The reason for the additional years is so the heirs of the deceased creators can also benefit from their works. This is why the estate of the late Elvis Presley can still earn from royalties and merchandising, and why the unauthorized use of Elvis material would infringe on their rights. But when copyrights expire, the artworks fall into the public domain, which generally means that they available to anyone to use. Creators can, at their discretion, release their work into the public domain even before the expiration of their copyrights, but most are obviously reluctant to do this, because once works are released into the public domain they become "public property," and creators cannot rescind this decision.

This is just a *very* brief overview on what copyrights are. If you wish to read more about the topic, there are a number of sources available online. The one I rely on most frequently is the "Copyright & Fair Use" <http://fairuse.stanford.edu/> pages of the Stanford Universities Libraries, and I encourage anyone who is interested in this subject to review the literature available there.

II. How does this affect you?

(Ahhhhhhh... Now I can stop writing like a lawyer!)

OK, now that I've gone through all of that, you're probably wondering what this has to do with you. Well, if you're a member of There, whether you participate in the There Developer Program or not, it actually means a lot.

You see, There (Makena Technologies) is a company that has many copyrights of its own, and we consider these copyrights extremely valuable to our business. And as a company that values its own copyrights, we have an ethical responsibility and legal obligation to respect and protect the rights of other copyright holders. As such, if you are a member who participates in the There Developer Program, whatever you submit to There will be reviewed to ensure, among other things, that it does not contain copyrighted material.

Now, these reviews take time, and the more suspect a submission is the more research it will require, which slows down the processing time. Yes, the reviews done during the Approval Process include other factors (like whether clothing meets the minimum coverage requirements), but by far the research of copyrighted material takes the longest. While most submissions can be reviewed and approved within a few minutes, everytime we see an item with potentially copyrighted material on it we have to do "due diligence" and spend a lot of time researching for the suspected material. The submission fees and wholesale prices for Developer items factor in the cost of processing, including the time and labor required to process them.

The bottom line here is that the need to review submissions, particularly for copyright infringement, affects *ALL* There Members. Because they are the ones who pay the submission fees, *ALL* Developers bear the expense of the review process, even those who submit items with their own original artwork. And since Developers recoup their expenses by building them into the sale prices of their items, this affects all members who purchase Developer items in There, which pretty much means it affects *ALL* members.

III. What should I do if I want to submit items that use copyrighted material?

As a general rule, your submissions to There should not contain any material that you did not personally create, and you should expect that if you do incorporate artwork that we believe was created by a third party we will do the necessary research. We do, however, recognize that there are tons of truly free artwork out there and that copyright laws do permit the use of copyrighted material under certain conditions. So if you do decide to incorporate "third party" artwork in your designs, here are some things to keep in mind:

A. Make sure that the artwork is free to use

As I mentioned earlier, creators have the option to release their artwork into the public domain, and many creators do just that. As such, there is a wealth of free graphics all over the Internet and it is certainly very tempting to include some of these images in Developer product designs. The big trick is finding out which ones are free and which ones are not. Generally, the There Product Submissions team makes the following assumption:

"If a Developer submission contains or incorporates artwork that we find on the Internet, we will consider it copyrighted material unless we can find conclusive proof that the creator of said artwork has made it freely available or has released it into the public domain."

In other words, just because you found it for free on the Internet does not mean that it is *really* free for you to use. There are many sites on the web that contain tons of graphic images and textures that are purportedly free, but in many cases the creators of these artworks are unaware that their designs are being published in this manner. I recall one case where a Developer mentioned that he was a member of this group (no, this wasn't a club in There), and they had a library of graphic images that they shared and made available free to all members to use any way they pleased. As part of my investigation, I joined this group to see what they had in their library and I found, among other things, sprite images extracted from a popular fighting game and "crackz" for some popular (read: expensive) graphics applications. Needless to say, I had serious doubts about whether the images available on this site were truly "free."

Another example is the use of artwork from fansites, like all the websites out there devoted to Star Trek or Star Wars. Sites like these have a plethora of "free" wallpaper bitmap images that they make freely available to anyone, and many of these images incorporate bits and pieces from the actual copyrighted material. While the studios generally tolerate the publishing of their material in this manner, there is usually no explicit agreement between them and the fansites, and they could justifiably claim copyright infringement and take legal action against the fansite operators. Most studios, however, unofficially permit the use of their property provided that it is used for "personal, non-commercial purposes," and this is why fansites make sure to remind their members of this constantly.

B. Make sure the artwork is altered enough to be considered "derivative work"

So if you submit something that contains copyrighted material, it will be rejected. But what if the material has been altered? Well, the general rule is that the material must be altered by at least 15% in order to be considered "transformed" and non-infringing (this is actually the second step of the three-step test used in judging "fair use"). That doesn't sound like a whole lot, but the alteration has to be substantial enough that there is a marked difference between the original and the derived work. For example, if you took a copyrighted design that had a crest shape surrounded by halo of 100 stars, removing 15 stars could not be considered enough of a difference to make the resulting artwork a derivative of the original, because the main subject of the design, the crest in the middle, remains unchanged and the casual viewer would hardly notice any difference at all.

It should be noted that copyright laws are generally colorblind; when artwork is registered, the creators will oftentimes submit a black-and-white or grayscale image, even though the actual artwork is in color, so that there are no ambiguities. Also, altering the "heading" (or direction) of the artwork does not qualify as altering the image; that is, if you turn the artwork upside-down that does not make it different, because it would be very easy to turn it rightside-up and see the original.

C. Make sure it complies with the "fair use" rule

I discussed the "fair use" rule earlier, and under this principle it is possible to use "some" of elements of copyrighted material in your designs without getting the authorization of the creator. Again, as discussed earlier, "fair use" was intended to allow for the use of copyrighted material for purposes of criticism and commentary. And, yes, this includes parody.

But just how much can you use? When evaluating whether the use of copyrighted material is protected by the "fair use" rule, there is a "Three Step" test, and the use must comply with ALL these steps in order to be considered "fair use." These steps are:

- Does the use of the copyrighted material compete with the creator? That is, by using the copyrighted artwork in your design, do you end up competing with the creator and potentially affecting the sales of the original? If this is the case, then the use is not fair.

- How much of the material is actually used? That is, if you copied significant portions of the original artwork, is it so much that the casual viewer could easily tell that it came from the original? In general, the more artwork is copied from the original, the less it will considered fair.

- How is the material used? As stated earlier, the spirit of "fair use" is to allow for criticism and commentary (and parody), so is the use of the artwork consistent with this premise? If the motivation for using the copyrighted material is simply to capitalize on it (like branding a T-shirt with the logo of a famous rock band) then the use is not fair.

Admittedly, these are NOT always easy steps to evaluate designs on. There have been times when I spent HOURS staring at designs saying to myself "well, it kinda/sorta complies with Step #2, but I'm iffy on Step #3...," and ultimately I had to settle for the best call possible. If your submission is rejected because the There Approval team does not believe it complies with the "fair use" rule, you are certainly welcome to appeal the rejection, and we encourage you to apply the abovementioned steps in your appeal.

So to summarize, here are three things to keep in mind if you include copyrighted artwork in your submissions:

- Make sure that the artwork is free. There are a lot of images available on the Internet, but not all of them are free to use. Just because you were able to download that really cool Rolling Stones Tongue and Lip logo doesn't mean that you can emblazon your submissions with it.

- Make sure the artwork is altered enough to be considered "derivative work." Original artwork can be altered enough to the point where it can be considered "different enough," but there must be at least 15% difference from the original and should be reasonably substantial to be obvious to the casual viewer.

- Make sure it complies with the "fair use" rule. Does your use of the copyrighted artwork compete with the creator of the original artwork? How much of the creator's material did you use? How did you use it? Your answers to these questions will determine whether or not the use of the artwork is fair.

I hope that this article gives you a better understanding of copyrights and the principles behind them. As I said earlier, There is a company that values its own copyrights and we certainly wish to respect the rights of other copyright holders. Be assured that we will do our best to adhere to these laws, and in doing so we will be protecting the integrity of the There world.

- Sonny "SonBlock" Abello