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Copyright Law and Art

I really need the advice and expertise from you all in this community.
I am a moderator on a forum which has an art community. There has been a recent trend of buying and selling (and reselling) characters plus related artwork, and there have been some arguments as to who has what rights in these sort of sales. We've had some members bring up the First Sale Doctrine as a defense against some of the artists' wishes for the art not to be resold. Now, as I understand it, First Sale Doctrine only applies to tangible goods, while most of the art in question is digital.
We have in the past stayed out of private sales, but it's getting too widespread for us to ignore any longer and we need to keep the peace on our forum. What are the specific laws which govern the sale (and resale) of digital art? I'll need references to actual law and hopefully some plain English explanations for our members, since their ages range quite a bit. We're hoping to iron out guidelines and rules for them to follow.

Thank you in advance for any advice given.
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( 10 comments — Leave a comment )
Dec. 6th, 2010 03:01 am (UTC)
Info on first sale here : http://www.copyright.com/viewPage.do?pageCode=cr10-n as it relates to physical media.

http://www.copyright.gov/reports/studies/dmca/dmca_executive.html is a very wordy document dealing exclusively with the concept of "digital first sale". Section III-B has the following quote : "The first sale doctrine is primarily a limitation on the copyright owner's exclusive right of distribution. It does not limit the exclusive right of reproduction. While disposition of a work downloaded to a floppy disk would only implicate the distribution right, the transmission of a work from one person to another over the Internet results in a reproduction on the recipient's computer, even if the sender subsequently deletes the original copy of the work. This activity therefore entails an exercise of an exclusive right that is not covered by section 109.

Proponents of expansion of the scope of section 109 to include the transmission and deletion of a digital file argue that this activity is essentially identical to the transfer of a physical copy and that the similarities outweigh the differences. While it is true that there are similarities, we find the analogy to the physical world to be flawed and unconvincing."

td;dr : Section 109 (which defines "first sale") does not allow for digital transfers.

Another breakdown of digital first sale issues from Stanford : http://www.law.stanford.edu/news/details/3891/Coming%20Ruling%20Seen%20As%20Way%20Out%20Of%20'First-Sale'%20Confusion/

And also a relevant article re: eBooks here : http://gizmodo.com/369235/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-your

In short, as defined by current law, the right of reproduction, which is necessary for the transfer of digital "ownership" still belongs to the copyright holder, which is *usually* the artist, unless the commissioner purchased all rights.

Good luck.
Dec. 6th, 2010 03:10 am (UTC)
chronovox covered the legal end pretty well.

Personally, I feel like when somebody buys a secondhand piece of digital art, they're getting nothing whatsoever for their money. If you commission digital art, you are getting the ability to look at and enjoy art that didn't exist before you bought it. So you've gotten some return for your funds. But you can look at and enjoy digital art that somebody else owns. And it's not as though, when they sell it to you, they don't also still own it. As chronovox's comment mentions, the seller still has a copy on their hard drive, so they haven't actually sold anything, have they?

Of course full rights to an image, and to make copies etc. is another issue entirely. And I understand that in some settings a character can have some benefit when purchased, since you do end up with the right to use that character in whatever game/interaction that particular venue uses. But still, for your money you're really not getting much of anything at all. All you have is the ability to go "this is mine." And I guess to some people that's worth money, but to me it's a bit baffling that somebody would pay real money for such a thing.
Dec. 6th, 2010 04:43 am (UTC)
The selling of characters, along with ports and art of them commissioned from other artists is a common practice on Furcadia, I've noticed. Reselling art almost certainly violates the copyrights of the original artists but to my knowledge I haven't heard of anyone taking action on this sort of thing. Unfortunately it seems like the artists in question don't find out, or perhaps they don't care.

It has actually happened to me. I was commissioned to draw a piece of a character (and one of my best friends had also done ports and one picture as a commission) and later that person sold the character, art and all to someone else. I didn't know my rights at the time but even now it's hard to know what type of action to take in this case. What can you do? Ask for a cut? Insist that the transaction doesn't take place? Quite unlikely.
Dec. 6th, 2010 07:02 am (UTC)
personally I do not feel that you should be able to sell off "digital" media, it's not like you go and then delete all traces of it off of your computer and any accounts you may have uploaded it too and get who ever you shared it with to delete it too. I can understand the onselling of traditional media...But digital is just =\...you can sell it like 100+ times....Where's the fairness for the poor artist who slaved away on the image?
Dec. 6th, 2010 10:04 am (UTC)
Perhaps you should also take a look at photography copyright. Your situation is common in the photography community. Those who use said images commercially are brought to court with a civil lawsuit. The original photographer has won time and time again.

My thoughts, the image is sold to another, the buyer doesn't have any rights other than to possess and use said image non-commercially.

If said buyer wants rights, they need to ask the artist/photographer.
Dec. 6th, 2010 12:52 pm (UTC)
If the members concerned wish to sell on characters and associated artists when they don't want them anymore, they should negotiate for that right and refuse to deal with those who don't agree. Of course, these artists might decide to charge more in return for the future loss of business.

Honestly I think the whole idea of inventing and selling packaged characters is a little silly, especially as the ones I've seen are ridiculously cookie-cutter. I have to wonder who's buying these things in the first place. Have a little imagination, people!

(This is a big issue in computer games. You can transfer a physical copy but the position of software companies is that their work is licensed, not sold, and so good luck getting the serial to work to download updates etc. And nowadays there's purely digital games, with no right of transfer . . . there's some plans to create a secondary market, but they've never gone anywhere because it's just not in the interests of the software creators.)
Dec. 6th, 2010 05:08 pm (UTC)
This also happens with fursuits. Sometimes people retain the actual character and sell only the suit. Other times adverts relate to the character name, suit and associated works.
Dec. 6th, 2010 08:40 pm (UTC)
The artist has full rights over the image until those rights are explicitly given or sold to another party. I don't know why anyone would 'buy' digital artwork when they can right click and save as.

It sounds more like they are selling literary characters and supplying the artwork of the character but not rights to that artwork. As far as I know this is kosher but IANAL.
Dec. 6th, 2010 08:44 pm (UTC)
"I don't know why anyone would 'buy' digital artwork when they can right click and save as."

Just remembered that would be copyright infringement to right click and save an image on your hard drive without the artist's permission.
Dec. 6th, 2010 10:09 pm (UTC)
I know on some of the pet sites I've been on buying a digi piece was buying the rights to display it on your personal page. It's not so much to appreciate it as to show it off. people collect it much like they would anything else. You can't post what you don't own though, as that's against the rules.
( 10 comments — Leave a comment )


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