@Dream_search_repeat: I failed to address your response.
I took photos of a DS and a switch, for both reference and texturing (and i modify the images to remove logos, and buttons)
The copyrighted object in this scenario is the photograph, not the DS or switch. Fortunately, you are the photographer and I assume you gave yourself permission to make a derivative of your own work, so there is no copyright concern with how that reference was used.
I didn't knew a shape could be copyrighted...
It can't be copyrighted. Not in this sense, anyway. However, they can be trademarked, and that is more of the crux of the issue. I know you already removed them, so it isn't really a problem at this point, but I want to make sure you're satisfied with your understanding of it so you can feel confident in the work you do and that it won't be trouble for you. The TV and smartphone look fine to me, both from a copyright perspective and a trademark perspective (they're too generalized to be mistaken for any one brand) but the DS and Switch should (remain) removed OR altered in shape and/or color scheme to avoid people thinking they're official Nintendo models.
Note that nearly every console company has allowances for how their trademarked consoles or controllers can be depicted by off-brand parties. How else would games be able to show a controller diagaram indicating the button mapping? Every non-sony playstation game company would be sued for trademark violations just for showing a playstation controller in their playstation game. However, those brand usage terms are considered a proprietary license, and are rarely compatible with any of the licenses used on OGA.
TL;DR: You can use such models in your own projects, but they couldn't be hosted on OGA without making them distinct from the trademarked brand... which kind of defeats the purpose of having a model that is supposed to be recognizable as the brand-named device. Sorry :/
Haha! It sounds like you are "disagreeing" but saying the same thing; tracing = derivative. I believe the point Ragnar was making is that you can use an object "as a reference" without actually tracing its shape or detail. Looking at my avatar as inspiration for creating an asset featuring an inverted pyramid, lightning, and a cloud... a new work could be created that is not a derivative of my logo so long as my logo was not materially used to copy the shape, texture, proportion, etc. but instead just provides a visual "reference" to inspire.
(Arguably, it is possible to still create a derivate by looking to one asset, and attempting to replicate it without actually overlaying the two or splicing pieces of the original into the new asset, but the point is that making a similar looking asset does not in-and-of-itself constitute derivation... Also my logo is trademarked, so yes it could be used as inspiration, but if the resultant "inspired asset" looked too similar, it would still be IP trouble, just not copyright trouble. :P More on that below.)
When you look at some existing peice of art and use that as inspiration for your own art, I shy away from calling that "using a reference". It may fit the term, but it confuses the discussion. "reference" in this sense applies to both inspiration and derivation, so I recommend defining how the "reference" is being used so the distinction between derivation and inspiration is not lost.
As to Dream's question "I can't model/draw using references?" I have to give the typical Lawyer Answer™ it depends. As Umplix said, You can use a reference, as long as that reference is not copyrighted... but furthermore, how are you using the reference to create your model/drawing? If by "reference" you mean you looked at it and liked certain features of it and that inspired you to make your own similar asset, then yes, that is fine, even when that "reference" is copyrighted. However, if by "reference" you mean you carefully studied it and imitated minute details, comparing them side-by-side to make sure the two match on some or several features, then no you should not use any copyrighted assets as a "reference", as that constitutes derivation.
Again, this only covers the difference between inspiration vs. derivation of copyrighted works. Trademarks are another beast and they don't care if it is derived or inspired; if it looks so similar that a reasonable person might mistake yours for the officially trademarked asset, then it violates trademark. Most assets are not trademarked, but the Nintendo Switch look-and-theme are.
the flatscreen TV and smartphone are safe from trademark concerns. As long as you didn't use a copyrighted image or model to copy off of for those, they're also safe from copyright concerns.
Most devices don't have a strong enough design asthetic to have a solid trademark associated with the shape and theme of the device itself, but Nintendo's stuff is often an exception; Because the device itself is often the product logo (especially the switch) they have a strong trademark based on the very shape and look of their devices. The DS is possibly too close to Nintendo Trademark and definitely the Switch is too close to Nintendo Trademark, unfortunately.
If you are able to change both the color scheme and some of the underlying shape of those, it should help. However, as the gentlemen indicated above, the question of derivation still remains; what other objects/images/assets where used in the creation of those models and how were they used, if any?
IIRC it was you the person that commented that it had not free license inside the archive file. The the creator said something like "I deleted the file with proprietary license and stick with OGA-BY3". I found that asset on itch and here so I writed comment here "Will you sync license here and on itch?". Then I got email that duplicates comment "Ah yes I'm having trouble with licenses. Unfortunately, I cannot make my own
on OGA. If that is a problem, I guess I'll just have to remove it from OGA". :\
Yes the history is retained and includes license. That scenario you outlined is one reason for the history, but a submission changing from a permissive license like CC0 to a more restrictive one like CC-BY-SA is pretty rare. Be cautious with using previous versions of submissions. They are usually changed for good reason. Often that reason is that the original license was never valid to begin with and the submitter was correcting it to account for derivative attribution.
Do you have a specific example in mind? You have only downloaded one asset (while logged in) so that is the only asset you'd be able to "prove" that you downloaded at an earlier time.
@DustDFG: ^Yep. What Umplix said. In fact, drummyfish and I consulted an attorney about exactly that scenario.
But you are correct when you say "in a philosophical way". The difference between "derivation" and "inspiration" is philosophical. If you were inspired by some other work of art, and made your own, it is NOT a derivative. If you used some other work of art as a component or baseline for making your own, it IS a derivative. The line between inspired and derived is often fuzzy and only exists philosophically.
Unfortunately, there is legal precident surrounding that philosification, and believing in the "wrong" philosophy can still get you in trouble legally.
Thursday, June 29, 2023 - 12:46
Are differences enough make it not derivative? Is there a rule of thumb on how much different it should be?
Technically no. If "copying" (in a legal sense) occured, no amount of changes will fully innoculate it from risk of being a derivative. However, even some lawyers would say that if it is so different that you truly cannot tell that one came from the other, why would it matter? Then again, other lawyers have told me, "if the new work is nothing like the original, why did you need the original at all? Just create the new work without using existing works and eliminate the risk entirely."
How did your kitbashing story ended though? I'm sure it is derivative work, but that would probably fall under the fair use category, right?
Yes, it was deemed derivative. He argued it was Fair-Use, but it was only fair-use in featuring the assets in his video, so he didn't get a copyright strike against his channel, but it was not Fair-Use to use the derivatives in his game. The youtube videos were not infringing, but they were used as evidence that his game would be infringing. He still had to adhere to the DMCA for using the assets in his other projects.
In the same way, you could probably use derivative assets under the terms of Fair-Use, but using them in a game would mostl likey not qualify as Fair-Use. Similarly, submitting such assets to OGA would not be allowed because "Fair-Use" is not one of our accepted licenses.
Well, now I could probably redo it based on my own piece as reference... :)
Hahaha! Well, you should note that using a derivative of the original as a reference when making a new version would make the new version a derivative of the original as well.
Otherwise I could just... trace the shape and layout of Chrono from Chrono Trigger to make my new character "Shrono". Shrono is a derivative of copyrighted content, so then I trace the shape and layout of Shrono to make my totally-original-not-copyright-infringing-character "Brono". Copyright-free, right!? </sarcasm> :P
Distinctive qualities help, but you can still end up with a derivative that looks nothing like the the original. It will still be a derivative if you used the original to copy it. It would be hard to prove it's infringing if it looks nothing alike, but it could still be trouble. Comparing similarity is not the only way to prove something was derived. I know a guy who made video blogs of himself kitbashing commercial game art until no one could tell what it came from. No one could prove it was a derivative by comparing the assets side-by-side, but someone still DMCA'd him and used his own video blog as evidence of copying.
Again, looking at the original while you create your own version is borderline. Usually it takes more than that to constitute "copying" in a legal sense. Your art is probably fine, but if you're not sure, I wouldn't risk it until you can redo the sprite without using another asset as a reference
@Dream_search_repeat: I failed to address your response.
The copyrighted object in this scenario is the photograph, not the DS or switch. Fortunately, you are the photographer and I assume you gave yourself permission to make a derivative of your own work, so there is no copyright concern with how that reference was used.
It can't be copyrighted. Not in this sense, anyway. However, they can be trademarked, and that is more of the crux of the issue. I know you already removed them, so it isn't really a problem at this point, but I want to make sure you're satisfied with your understanding of it so you can feel confident in the work you do and that it won't be trouble for you. The TV and smartphone look fine to me, both from a copyright perspective and a trademark perspective (they're too generalized to be mistaken for any one brand) but the DS and Switch should (remain) removed OR altered in shape and/or color scheme to avoid people thinking they're official Nintendo models.
Note that nearly every console company has allowances for how their trademarked consoles or controllers can be depicted by off-brand parties. How else would games be able to show a controller diagaram indicating the button mapping? Every non-sony playstation game company would be sued for trademark violations just for showing a playstation controller in their playstation game. However, those brand usage terms are considered a proprietary license, and are rarely compatible with any of the licenses used on OGA.
TL;DR: You can use such models in your own projects, but they couldn't be hosted on OGA without making them distinct from the trademarked brand... which kind of defeats the purpose of having a model that is supposed to be recognizable as the brand-named device. Sorry :/
Haha! It sounds like you are "disagreeing" but saying the same thing; tracing = derivative. I believe the point Ragnar was making is that you can use an object "as a reference" without actually tracing its shape or detail. Looking at my avatar as inspiration for creating an asset featuring an inverted pyramid, lightning, and a cloud... a new work could be created that is not a derivative of my logo so long as my logo was not materially used to copy the shape, texture, proportion, etc. but instead just provides a visual "reference" to inspire.
(Arguably, it is possible to still create a derivate by looking to one asset, and attempting to replicate it without actually overlaying the two or splicing pieces of the original into the new asset, but the point is that making a similar looking asset does not in-and-of-itself constitute derivation... Also my logo is trademarked, so yes it could be used as inspiration, but if the resultant "inspired asset" looked too similar, it would still be IP trouble, just not copyright trouble. :P More on that below.)
When you look at some existing peice of art and use that as inspiration for your own art, I shy away from calling that "using a reference". It may fit the term, but it confuses the discussion. "reference" in this sense applies to both inspiration and derivation, so I recommend defining how the "reference" is being used so the distinction between derivation and inspiration is not lost.
As to Dream's question "I can't model/draw using references?" I have to give the typical Lawyer Answer™ it depends. As Umplix said, You can use a reference, as long as that reference is not copyrighted... but furthermore, how are you using the reference to create your model/drawing? If by "reference" you mean you looked at it and liked certain features of it and that inspired you to make your own similar asset, then yes, that is fine, even when that "reference" is copyrighted. However, if by "reference" you mean you carefully studied it and imitated minute details, comparing them side-by-side to make sure the two match on some or several features, then no you should not use any copyrighted assets as a "reference", as that constitutes derivation.
Again, this only covers the difference between inspiration vs. derivation of copyrighted works. Trademarks are another beast and they don't care if it is derived or inspired; if it looks so similar that a reasonable person might mistake yours for the officially trademarked asset, then it violates trademark. Most assets are not trademarked, but the Nintendo Switch look-and-theme are.
^Solid advice from Umplix and Ragnar.
the flatscreen TV and smartphone are safe from trademark concerns. As long as you didn't use a copyrighted image or model to copy off of for those, they're also safe from copyright concerns.
Most devices don't have a strong enough design asthetic to have a solid trademark associated with the shape and theme of the device itself, but Nintendo's stuff is often an exception; Because the device itself is often the product logo (especially the switch) they have a strong trademark based on the very shape and look of their devices. The DS is possibly too close to Nintendo Trademark and definitely the Switch is too close to Nintendo Trademark, unfortunately.
If you are able to change both the color scheme and some of the underlying shape of those, it should help. However, as the gentlemen indicated above, the question of derivation still remains; what other objects/images/assets where used in the creation of those models and how were they used, if any?
opens fine for me. Can you take a screenshot of the page you're seeing?
...And what was the follow-up comment to that? https://opengameart.org/content/coolpunk-puzzle-platformer-asset-pack
Yes the history is retained and includes license. That scenario you outlined is one reason for the history, but a submission changing from a permissive license like CC0 to a more restrictive one like CC-BY-SA is pretty rare. Be cautious with using previous versions of submissions. They are usually changed for good reason. Often that reason is that the original license was never valid to begin with and the submitter was correcting it to account for derivative attribution.
Do you have a specific example in mind? You have only downloaded one asset (while logged in) so that is the only asset you'd be able to "prove" that you downloaded at an earlier time.
if that's how you made them, then they aren't derivatives.
@DustDFG: ^Yep. What Umplix said. In fact, drummyfish and I consulted an attorney about exactly that scenario.
But you are correct when you say "in a philosophical way". The difference between "derivation" and "inspiration" is philosophical. If you were inspired by some other work of art, and made your own, it is NOT a derivative. If you used some other work of art as a component or baseline for making your own, it IS a derivative. The line between inspired and derived is often fuzzy and only exists philosophically.
Unfortunately, there is legal precident surrounding that philosification, and believing in the "wrong" philosophy can still get you in trouble legally.
Technically no. If "copying" (in a legal sense) occured, no amount of changes will fully innoculate it from risk of being a derivative. However, even some lawyers would say that if it is so different that you truly cannot tell that one came from the other, why would it matter? Then again, other lawyers have told me, "if the new work is nothing like the original, why did you need the original at all? Just create the new work without using existing works and eliminate the risk entirely."
Yes, it was deemed derivative. He argued it was Fair-Use, but it was only fair-use in featuring the assets in his video, so he didn't get a copyright strike against his channel, but it was not Fair-Use to use the derivatives in his game. The youtube videos were not infringing, but they were used as evidence that his game would be infringing. He still had to adhere to the DMCA for using the assets in his other projects.
In the same way, you could probably use derivative assets under the terms of Fair-Use, but using them in a game would mostl likey not qualify as Fair-Use. Similarly, submitting such assets to OGA would not be allowed because "Fair-Use" is not one of our accepted licenses.
Hahaha! Well, you should note that using a derivative of the original as a reference when making a new version would make the new version a derivative of the original as well.
Otherwise I could just... trace the shape and layout of Chrono from Chrono Trigger to make my new character "Shrono". Shrono is a derivative of copyrighted content, so then I trace the shape and layout of Shrono to make my totally-original-not-copyright-infringing-character "Brono". Copyright-free, right!? </sarcasm> :P
Distinctive qualities help, but you can still end up with a derivative that looks nothing like the the original. It will still be a derivative if you used the original to copy it. It would be hard to prove it's infringing if it looks nothing alike, but it could still be trouble. Comparing similarity is not the only way to prove something was derived. I know a guy who made video blogs of himself kitbashing commercial game art until no one could tell what it came from. No one could prove it was a derivative by comparing the assets side-by-side, but someone still DMCA'd him and used his own video blog as evidence of copying.
Again, looking at the original while you create your own version is borderline. Usually it takes more than that to constitute "copying" in a legal sense. Your art is probably fine, but if you're not sure, I wouldn't risk it until you can redo the sprite without using another asset as a reference
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