rotoscoped compositions and copyright

[Imperf3kt]

Let me first start off by stating that rotoscoping or tracing an image is legally classified as a derivative work and as such falls under normal copyright laws.
But, what about compositional rotoscoping - that is, what if I take a copyrighted photo I found on the internet, traced a chair out of it, took another copyrighted photo, traced a table, etc, until I had a whole scene, and layered these derivatives together to make my image.
Is this still purely a derivative work, or can it be classified as fair use?

[Scribbles]

I don't believe it's classified under fair use because the pieces are still copyrighted. if you wanted to do something like that I would advise using CC0 or public domain images instead at the very least. and even that can be a slippery slope if the source saying it's CC) or public domain isn't reliable

[Imperf3kt]

Yes, those were my thoughts on the matter also.

Fair use didn't seem to fit in this case. I was just wondering if anyone could direct me to other resources for more information on the subject.

For now, indeed my best option is to use derivative allowed creative commons or public domain images.
However, I am in need of legal documentation, not images :p

[Aviala]

I think you should also probably consider if the traced work is different enough from the original to be considered it's own work, and can anyone actually see what images you used as the base - if no-one could recognize that "hey, that's my exact chair from that exact photo", it's probably different enough to be considered it's own thing.

There are a lot of royalty free images you can use, so it's probably safer to try to find those.

[gas]

In fair use (like in any other broad definition in law terms), your intention is the main element.

In very simple terms:
-are you doing a critique of the original product? No. You're not telling "this product of another guy is like that"
-are you doing a parody of the original product? No.

It's not fair use.
You are literally taking a product and use the whole or part of it to create another product that doesn't quote (that's the fair use discrimination) the original product in a sense of critique or parody.

So, for example, I can invoke fair use if I do a parody of your game character and use it in a post to criticize your game (quoting that's your game I'm criticizing).
I cannot in fair use terms take your character sprite, apply a pair of moustaches and distribute a game with that (payed or freely doesn't matter).
I can use a Nasa photo to tell people about Nasa action and conduits. I cannot take this photo, cut away the logo, apply it to a book as cover and sell my book.

Usually you're safe thinking "they monetize with that OBJECT (real or digital doesn't matter), and NO ONE ELSE can monetize with that OBJECT" - as for monetize is everything means distributing (free is a price, and there's an exchange of property even in free distribution),

[PyTom]

I can use a Nasa photo to tell people about Nasa action and conduits. I cannot take this photo, cut away the logo, apply it to a book as cover and sell my book.

You can. NASA stuff is born in the public domain, since it's a work of the US Government.

[dfbreezy]

From a legal perspective, and taking international copyright laws into account, what you're saying, like the previous comments pointed out, does not amount to fair use.

No matter how obscure, you always need the original owners permission for most cases. Derivative works and adaptations are loosely monitored. Parodies are almost free of danger.

So, for example, I can invoke fair use if I do a parody of your game character and use it in a post to criticize your game (quoting that's your game I'm criticizing).

I'm not too sure about that last part. From what i know, parodies are safe because they indirectly reference the source material.

That is why in anime or manga, we don't see them bring someone who looks exactly like Darth Vader and call him "Darth Vader". They tend to switch it up by giving him a similar but factually different look (while making it obvious it's the Darth) and call him "Barth Daver" or something. Because that then crosses over to the zone of trademarks and you land yourself in deeper trouble just for a joke.

I think you should also probably consider if the traced work is different enough from the original to be considered it's own work, and can anyone actually see what images you used as the base - if no-one could recognize that "hey, that's my exact chair from that exact photo", it's probably different enough to be considered it's own thing

That is correct. The tracing must be strong enough to virtually seem like a new thing. It can be the same pose and expression as the source, but there has to be enough difference for it to standalone (i.e change to a guy from a girl or vice versa, change colors and outfits etc)

[morrie]

I read an article about this actually..... which stated that it may be considered fair to trace someone else's work as part of a larger image, if your resulting piece of artwork doesn't collide with the (economical) interests of the original authors'. The writer of that article argued that whether your derived image lessens the monetary value of the original or not would affect whether it's considered fair use. I don't remember where I read the article though and I don't know how much professional legal advice was involved.....

[lunaterra]

(disclaimer: I'm not a lawyer)

From a legal perspective, and taking international copyright laws into account, what you're saying, like the previous comments pointed out, does not amount to fair use.

No matter how obscure, you always need the original owners permission for most cases. Derivative works and adaptations are loosely monitored. Parodies are almost free of danger.

So, for example, I can invoke fair use if I do a parody of your game character and use it in a post to criticize your game (quoting that's your game I'm criticizing).

I'm not too sure about that last part. From what i know, parodies are safe because they indirectly reference the source material.

That is why in anime or manga, we don't see them bring someone who looks exactly like Darth Vader and call him "Darth Vader". They tend to switch it up by giving him a similar but factually different look (while making it obvious it's the Darth) and call him "Barth Daver" or something. Because that then crosses over to the zone of trademarks and you land yourself in deeper trouble just for a joke.

You're confusing copyright with trademarks.

Fair use applies to the direct use of copyrighted content; your example of a Darth Vader parody wouldn't have anything to do with fair use unless the person making the parody uses clips from the Star Wars films or other copyrighted media. (US law does have a type of fair use regarding trademarks, but it wouldn't apply here either.) In the US--it differs by country--a parody which uses copyrighted content can fall under fair use even if the parody is a commercial product as long as the work is directly parodying the content it's using:

For example, when Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its copyright infringement lawsuit against him because his work effectively parodies Barbie and the values she represents. In Rogers v. Koons, Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense. He lost because his work was not presented as a parody of Rogers' photograph in particular, but as a satire of society at large. This was insufficient to render the use fair.

In Campbell v. Acuff-Rose Music Inc the U.S. Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music, had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than mere advertising, commercial nature did not bar the defense.

This is why reviewers and the like can use clips from movies, games, etc. in videos without paying a ton of royalty fees.

And again, this is about US law. Some countries also have fair use laws, though they're different from US laws. Some countries use the concept of fair dealing, which is similar to fair use but usually stricter than US law.

To OP: As other people have said, tracing a photograph for your VN background wouldn't fall under fair use/fair dealing since you're not making any kind of statement about the original image. You should ask the copyright owner if they'll allow you to use their photo as a base and/or seek out Creative Commons images.

[dfbreezy]

From a legal perspective, and taking international copyright laws into account, what you're saying, like the previous comments pointed out, does not amount to fair use.

No matter how obscure, you always need the original owners permission for most cases. Derivative works and adaptations are loosely monitored. Parodies are almost free of danger.

So, for example, I can invoke fair use if I do a parody of your game character and use it in a post to criticize your game (quoting that's your game I'm criticizing).

I'm not too sure about that last part. From what i know, parodies are safe because they indirectly reference the source material.

That is why in anime or manga, we don't see them bring someone who looks exactly like Darth Vader and call him "Darth Vader". They tend to switch it up by giving him a similar but factually different look (while making it obvious it's the Darth) and call him "Barth Daver" or something. Because that then crosses over to the zone of trademarks and you land yourself in deeper trouble just for a joke.

You're confusing copyright with trademarks.

Fair use applies to the direct use of copyrighted content; your example of a Darth Vader parody wouldn't have anything to do with fair use unless the person making the parody uses clips from the Star Wars films or other copyrighted media. (US law does have a type of fair use regarding trademarks, but it wouldn't apply here either.) In the US--it differs by country--a parody which uses copyrighted content can fall under fair use even if the parody is a commercial product as long as the work is directly parodying the content it's using

I think you misread my explanation, because you would have noticed;

-

we don't see them bring someone who looks exactly like Darth Vader and call him "Darth Vader"

-

Because that then crosses over to the zone of trademarks

So while you do bring up a good point, using U.S law which i don't really take into account, my explanation still serves it's purpose without problem. Let me explain further to clear this up;

In copyright, your work and it's contents are protected. That includes characters (as long as they are sufficiently unique). As such, my point about looking like the Darth still holds, because there is sufficient originality in him, and Star Wars as a franchise is protected under copyright. That includes Leia and Luke as well and whoever exists in the franchise.

Using Darth Vader's name is a trademark violation, but using his appearance along with his mannerisms and lines are copyright related (Yes, even quotes count depending on their originality) and also can be protected by trademark.

A character can exist merely by its textual description of that character. Who he or she is, what he or she looks like, the manner of behavior and other such characteristics can all be described, in writing, by the author. As such, the character may be protected under copyright law as part of the text of that work. Since one of the rights of copyright is the right to make derivative works based on the work, if there is such protection, the author (or whoever is the proprietor of the rights in and to the text including the character) retains the right to make further use of that character in such derivative works.

No, you don't have to remove anything from the star wars franchise for it to qualify as a violation. The mere direct use of him in anyway can qualify as a violation. (note "Direct")

Hence, parodies use indirect means to do it. Like i also said, parodies are generally danger free, as they are lawful as long as the author sees fit (per my country's laws).

Ultimately, copyright varies by country. A better way to get a final answer is to use the WIPO treaty laws or the Berne conventions laws (if your state is a party to them) to get a proper final answer. For an international community, international laws are the way to go.

[Imperf3kt]

I'd like to mention that I understand fair use laws and that when I wrote the opening post, I was not fully concentrating on what I wrote.

Fun fact:
Manga "Slam Dunk" was traced from sporting magazines and various other sources.

http://insignificantknowledge.blogspot. ... d-and.html

http://www.si.com/extra-mustard/2013/05 ... to-a-comic