"Non-Commercial Use" of Commercial Properties
Eustace Scrubb
Posts: 2,698
I have long understood "non-commercial use only" to forbid making money directly with the product in question or renders thereof. And sometimes the reason for this is that the models represent other parties' commercial properties (Batman, X-Men, Doctor Who, et cetera...). But what if my character is just a London Bobby of the early 20th C. and has good professional reasons to use a perfectly ordinary blue police box? Or the mask my hero fights the Astral Syndicate in is cut to the same pattern as Nightwing's? At what point does the line between infringement and fair use generally get drawn?
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Okay, so as an example, I make a model of a Police Officer from whatever era, give it away, and say you may not use this in any commercial work, period, or without express permission from me directly. That's your end user liscense agreement (eula).
That means, if you take my model, render it, sell that image, you are in violation of the eula.
Whatever reason the artist may have: it's their work you are using. Period, end of story.
I try to avoid downloading stuff that has that kind of restriction upon it... I like to be able to use the stuff on my runtime without fear of doing something stupid :)
Redacted
Hmmmm MetaData with Eula! :) That's a good idea! Though it sounds kinda like something I'd order in a Deli...
Hmmm... MetaData with Eula on rye... *droool* ;) Now I'm hungry.
With regards to using models, the line is drawn at the point where you use the render for commercial gain. This usually involves charging money or using the render in a for-sale work (e.g. comic book or video game), or commissioned artwork. But some people also think it might even extend so far as including the render in a professional portfolio advertising yourself. I don't think that's what you're asking, though.
With regards to replicating existing IPs (which is an entirely separate issue, assuming the actual 3D model rights allow commercial work), that's a much more grey area. If you know that your work will remind your audience of an existing franchise (e.g. Batman or Doctor Who), you should consider alternative options, to be safe. This is much, much murkier water, and really, this isn't the best place to seek advice. Copyright law is one of the trickiest legal quagmires, and you should seek professional advice if you intend to venture into such territory.
Of course, in practice very few actually pursue artists who do this. This is for several reasons, but largely because the fan community only serves to promote the brand. Very rarely a particular piece might arise which gives cause for concern (a webcomic starring copyright characters, for example) which they may then seek legal action against. Most of the time though the owner is given a fair warning before throwing the lawyers at them though.
In short, use your best judgment. There's no simple yes/no in the world of copyright theft, as it depends largely on the item you're making at the whim of the copyright owners. Just be warned that if they did decide to prosecute, they would be well within their rights to do so, for almost ANY level of breach.
As for the question of the 'ordinary blue police box,' common sense plays a big part here. If one creates a police box from historic references then the people who owned the Dr Who franchise would have little to stand on. If on the other hand the police box was done directly from Dr Who material, there could be aspects of it that are distinctly their design that one would not necessarily recognize at first glance but would differentiate it from the former (one done from historic references.) In then end, corporate lawyers can get things pushed through the court that shouldn't at times and as was mentioned aren't tasked to follow up in other cases. There were actually many battles over music sampling/remixing because of this issue, and there it can really get grey with many conflicting court decisions.
As to the question of license of items downloaded, I solve that personally by zipping the file with a picture and link back to where I got it, labeling the zip in a more common sense name then it usually had originally (the one it still has inside the zip) and adding a tag for the license,
This has the added advantage of making it much more searchable, looking for all 'spaceships' for instance.
It's gotten better, lately, but there is still a lot of older content, especially on ShareCG, that is labelled 'No Commercial Use' when it actually isn't. And another batch that is really 'limited commercial use'. So really, if you are just skipping things because of how they are tagged, then there's lots of great stuff you are passing up. The ReadMe, not the website 'tag' is the real license agreement...
Yes, and the readme is not in any standard place often.. it's all over the place depending on where the person who created the item decided to put it. Also, it's sometimes the 'readme' and sometimes a separate 'license' file. I always move it out to the top level folder with the name 'license' so I have a standard way to find it later.
Good idea.
That would be much riskier, unless the mask is very bland and ordinary. The shape of the mask is probably protected as a superhero accoutrement.
Trademark is context dependent - it applies to a particular field, and may have no traction outside that field if it isn't a made-up word or image (police box versus a particular face-mask). But if you are consciously drawing inspiration from something, or choosing it for the association with another creation, then you are morally at least using another's work to build your own and shouldn't do it regardless of any legal risk.
This point has been discussed many times and I think Richard has touched on an important point with 'context.' Basically, if one makes a super hero that is strong, can fly, and has some critical weakness without the idea of another superhero in the back of their mind (and one has to be honest about this with themselves) they are probably not going to infringe on copyrite. If one has Superman in the back of their mind as a primary inspiration, there is a very good chance they will if not very careful. It is perfectly natural to draw inspiration from others creativity, however using a particular concept too much will cross the line. Any visual references are subject to this of course. Even just conceptual frames of reference can cross the line, such as having your flying otherwise invincible superhero susceptible to kryptonite. Just changing kryptonite to dolomite won't fool anyone either. It comes down to a concept similar to writing a good paper. Have many references you've drawn from and limit the amount of references or the depth of reference from any one source.
I will make a caveat to the initial statement. There have been successful court cases against people who infringed on copyrite unknowningly. In one case, it was assumed that the person had stored information about another authors work deep in a part of their memory that they weren't aware of but did in fact draw on and produce from to an extent that was too close to the original. The original author was successful in their case. Unfortunately I don't have the reference to the case so one will have to take it for what it's worth, hearsay basically, but I put it forth still for the point it makes.
In the end, stopping one from drawing inspiration from others is counterproductive to a creative dynamic society. Having people basically repackage someone else's concepts and call them their own is also.
The question I always wonder about, when discussing this subject is...
Would Andy Warhol have been able to do what he did, with cans of soup, now?
That's a good point, and I think that very skirting of the issue so closely is a big part of his popularity. He pushed copyrite to a limit that most people wouldn't be able to. Part of the reason he got away with it was that his artwork enhanced rather then took away from that which he incorporated in his work, advertising for the original source basically. This also points out how a known artist can do things for profit a fan couldn't because the original copyrite holder sees themselves getting value back they wouldn't from an unknown person. Cambells, Marilyn Monroe (franchise,) etc.. chose not to go after him.
I also asked this as a content-maker: for an example, my Ratty T-shirt for Behemoth has no restrictions on its use--except with the Princess Bride texture. But I think the Warhol example has another facet: did his "infringement" of the Campbell's Soup logo interfere with sales or enhance them? If it had been used in a knock-off label, like a red-and-white "McCannel's Chicken and Noodle Soup" to undercut the original product's pricing, there would have been infringement issues. But oil and acrylic paintings are a different market from instant soups. On the other hand, entertainment media images are usually pretty tightly franchise-controlled, and any representation of The Doctor or associated images/characters/figures is subject first to the BBC's copyright, and you cannot publish any story about Wookies or Ewoks or Hutts without the express imprimature of LucasFilms, Ltd. (By the way, according to Mr. Waterson, the ONLY authorized "Calvin and Hobbes" material is his original strips and the book compilations of them. Not t-shirts, mugs, plush toys, window stickers, window stickers, window stickers....) I think Richard put it best, though.
Just my two cents...
As for the British police box, you're right that they were very common until the 1960's, but now people only know the police box as the TARDIS exterior. The "context" argument is correct: if you're making an image of British police in the 1950's with the police box, then you'll probably be fine. If you put the police box on another planet, then it's safe you assume you're making a sci-fi scene and the model now represents the TARDIS.
However, you also need to be aware of overzealous companies and marketplace websites. I won't mention the site's name, but the initials are T.S. ;)
Because they've been hit with numerous copyright notices, they are beyond overzealous about what words they allow in their product description. Here are some examples that I've had to deal with, simply because (that site) is now so afraid of the copyright holders that they won't allow any similar words, no matter the context.
Example 1: I upload an F-14 aircraft model for sale and part of the description said something like "This aircraft was deployed on the carrier USS Enterprise." The site wouldn't allow that because they said CBS/ Paramount owns the word "Enterprise", even when it applies to an aircraft carrier or selling an airplane model.
Example 2: I uploaded another aircraft model and the description said something like "The engine intake fed the fuel..." I got a notice that the word "fed" was copyrighted and couldn't be used in the description!
Example 3, 4, 5, etc: I can't use the company name in the historical information section of product description, such as "First developed by Boeing, this aircraft..." or "Made in the Mercedes Benz factories, this car..."
So, my point would just be to be careful with copyrighted properties. ;)
Of course, these issues can be avoided if you make your own models from scratch. For example, why does your hero need to look like Nightwing?
I was using Nightwing's distinctive mask-shape as an example: actually, my heroes run around in Dryjack's "Plague Doctor" masks like a couple of silly crows! ;)