Copyright, Creative Commons, and Commercial Use
Strap in everybody, because today we are all gonna to a big learn, together! I'm sure each and every one of you have heard the terms, Copyright, Creative Commons, Fair Use, and Commercial Use, so we are going to dissect all of these. I will do my best to keep the legal speak to a minimum, and at the end of each section there will be what's called a "human-readable" summary.
Let's start with a disclaimer: I am not a lawyer! I am also not a legal expert. This article is provided strictly for educational purposes and neither I, nor AnthroBrand.com, will be held liable for any damages that result from a misinterpretation of this information on your part; or mine. At no point do I claim to be a licensed expert on any legal matter and the information contained in this article is publicly available via the links provided. It is imperative that do your own research to ensure you are following all of the applicable laws in your country, and contact a licensed law professional if you have any questions.
If you're still with me at this point, thanks for sticking around! I promise that this article will be full of useful information for every creator and fan within the Anthro community.
The first thing we are going to learn about is a term that everyone is very familiar with: Copyright. In order to set the foundation, let's start with the actual definition from Copyright.gov. According to U.S. law, Copyright is defined as:
"A form of protection provided by the laws of the United States for "original works of authorship", including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. "Copyright" literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright."
You may be surprised to know that here in the U.S., Copyright law consists of 14 Chapters and 12 Appendices. If you want to gain a true, absolute grasp of the extent of Copyright law, then you have plenty of reading ahead of you! In this article though, we are just gonna touch on some of the most important facts that broadly apply to the Anthro community; starting with highlights from Chapter 1: Subject Matter and Scope of Copyright.
Firstly: Literary Works (like this one :3)
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
Secondly: Pictorial, Graphic, and Sculptural Works
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
Thirdly: Exclusive Rights in Copyrighted Works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
So what does this mean?
If what you have created is an original work, by you, that has not been traced or is an alteration of a work that currently exists in any other form; you own it! It is yours and you have exclusive Copyright over it. Your work is protected by Copyright law, if you are a U.S. citizen or a citizen of a treaty party state, and you alone have the permission to perform, display, and sell it. If anyone else infringes on your rights as the Copyright owner, then they can be subject to legal action. Copyright Infringement is it's own section, so let's hop to Chapter 5: Copyright Infringement and Remedies and take a closer look.
Infringement of Copyright
Anyone who violates any of the exclusive rights (see "Thirdly" above) of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
So what happens if you infringe on someone's copyright? There are several remedies that the original creator may seek, so let's just focus on the most common.
Remedies for Infringement
Injunctions - Any copyright holder may appeal to the court in their jurisdiction to file an injunction against the individual who is infringing. An injunction serves as the primary means to prevent and restrain any further infringement.
Damages and Profits - In general, the individual or entity who infringes on a creator's copyright is liable for the actual damages as well as any profits that have been generated by the infringer. This, however, is not the only recourse available to the copyright holder. If the court finds the infringement to be wilful, the copyright owner may elect an award of statutory damages. The maximum award allotted for this is $150,000, no matter how much, or how little, the copyright infringer earned.
Costs and Attorney's Fees - The court may grant the prevailing party full recovery of all costs associated with a civil action. There are also criminal penalties for wilful, criminal infringement, but you can read all about those on your own. The criminal section is far too long to condense here, seriously.
Now then, to summarize copyright infringement, if you do any of the following, you are in violation of Copyright law and legal action can be brought against you:
- Reproduce a copyrighted work via copies or audio recordings (making art prints without permission)
- Prepare derivative works based on the original (tracing)
- Sell, rent, lease, lend, or transfer ownership of an original work (without license to do so)
- Perform Copyrighted works publicly (music, motion pictures, etc.)
- Display Copyrighted works publicly (copy art from one site to post on another without permission)
- Perform Copyrighted works publicly via sound recordings
What about Fair Use?
This is truly one of the biggest misconceptions that floats around the Anthro community. Fair Use is not nearly as broad as most people think. Let's hop back to Chapter 1 real quick and take a look at the actual definition of what constitutes Fair Use:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Now I know that some of you are looking at the word "comment" in the above section. This does not include copying a completed work and reposting it on another website so people can comment on it in a public forum. That violates Article 5 of Section 106. In this context, the word "comment" is most closely resembled by an entire editorial written about a singular piece of art. If you were to write an article commenting, and possibly criticizing, a particular piece of art, while displaying an image of it, then you would be within the realm of fair use. Your intent, however, will also come into play.
But wait, my site is just an archive, am I still infringing on someone's copyright?
Section 108 of Chapter 1 covers this in great detail. I'll include just the opening declaration here:
Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if—
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
In summary, you may include Copyrighted works in your archive as long as you adhere to the following rules:
- You only display one copy of each work
- Your archive does not benefit you in any way commercially (does not generate revenue or profit)
- Your archive is open to the public
- Your archive includes copyright notices, attributing to the original owner, for each piece displayed
What is Creative Commons?
The first thing you should know about Creative Commons is that they are a non-profit organization, not a government entity. They provide licenses, that they generate on their own, in order to help creators understand how, and with what restrictions, their work can be reproduced and shared. Creative Commons currently has six different licenses to choose from and they do not have any direct impact on the exclusive rights of a copyright owner. These licenses merely help dictate the wishes of the creator in a more easily understandable fashion. This is totally optional and not all creators will wish to license their work with Creative Commons.
To give you a more in-depth look, I pulled this from CreativeCommons.org:
Creative Commons is a non-profit organization that helps overcome legal obstacles to the sharing of knowledge and creativity to address the world’s pressing challenges.
In order to achieve our mission, we:
- Provide Creative Commons licenses and public domain tools that give every person and organization in the world a free, simple, and standardized way to grant copyright permissions for creative and academic works; ensure proper attribution; and allow others to copy, distribute, and make use of those works
- Work closely with major institutions and governments to create, adopt and implement open licensing and ensure the correct use of CC licenses and CC-licensed content
- Support the CC Global Network, a community initiative working to increase the volume, breadth, and quality of openly available knowledge worldwide
- Steward the Open COVID Pledge, which calls on organizations around the world to make their patents and copyrights freely available in the fight against the COVID-19 pandemic.
- Develop technology like CC Search that makes openly licensed material easier to discover and use
- Offer the Creative Commons Certificate, an in-depth course for people interested in becoming experts in creating and engaging with openly licensed works
- Produce CC Summit, an annual event that brings together an international group of educators, artists, technologists, legal experts, and activists to promote the power of open licensing and global access
- Support global Open Education and GLAM communities
Creative Commons, unlike Copyright, is not automatically granted when a work is created. Each creator needs to apply for, and display, a creative commons license if their work is free to share and distribute. Two of the six Creative Commons licenses available restrict Commercial Use, and are the most widely used within art communities.
And now for the big one: What is Commercial Use?
Commercial Use, on it's own, is a legal definition that you can find on google from many different sites. But when applied to the Anthro community, since the content created there varies so wildly, the definition becomes much more broad. In general though, Commercial Use can generally be defined as:
The use of any licensed work included in a sale, lease, or lend transaction that includes monetary gain. This includes income generating use of any kind, direct or indirect.
What this means is, if you make any money, at any point, by displaying, performing, or otherwise publishing a Copyrighted work, it becomes Commercial Use. Prior to displaying, performing, or publishing a creator's work across any other mediums, you need to ensure you have the expressed, written permission of the original creator, or the correct license, to do so.
Stepping into the area of Commercial Use is likely where you will have the most legal headaches. Violating copyright without financial gain has repercussions, but when it comes to using a creators work for monetary gain, they can seek additional damages for every penny of profit made. It's not only illegal, but it could get you barred from ever seeing your favorite creator's work again. It doesn't matter if it's a penny, or a thousand dollars; as soon as you make money with the display or sale of another creator's work, you are in violation and at risk of legal consequences.
In short, when it comes to displaying creative works that you do not own on a site that generates any kind of revenue for you or your business; don't do it without first licensing the art or getting written permission to do so.
Okay! I know this was a long one, but I hope it has cleared up some of the most common misconceptions about how you can use a creator's work without getting in trouble. Copyright, Creative Commons, Fair Use, and Commercial Use are all complicated when you really get into them, but with just a little bit of reading, you can make sure that you stay well within the limits of the law. As a reminder, all of this applies to the United States of America, as that is the law that governs where I live. If you are outside the US, please read up on your country's laws to make sure you are not potentially in danger of legal action.
Thank you all for reading!