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(I'm writing not as a moderator but as a member.)

I recently found a 'realistic' artist on FA who paints over/traces photos, without permission or credit. I wouldn't have stuck my nose in, but they do this with commissions, not just their personal art. (Not that it's legal to trace if it's personal art, but it peeves me when commissioners unknowingly pay for traced art...)

When I mentioned politely that this was against copyright laws, the artist said, 'Not in Australia. I have done extensive research into my country's copyright laws, etc., etc...'.

My limited internet research into Australian copyright law did not seem to agree with the artist's claim. However, I only spent an hour or so researching this. Additionally, I've read/heard that where internet image hosting is concerned, the laws of the country where the servers reside take precedence, but again, I am not certain.

So, my questions are:

1. If an artist lives in one country, but posts their art on a site with servers based in another country, whose copyright laws apply?

2. More specifically, does Australia actually allow tracing/painting precisely over photographs without permission?

(Not naming this artist, yet, until I know more about the copyright laws. Also because, while I am pretty certain much of their gallery is traced, I was only able to locate a single exact art-to-photo match. The rest of their gallery looks like this image, though, with slightly wonky/frankensteined anatomy, but I couldn't find the source photos.)

EDIT: I am referring purely to the artist tracing photos which do not belong to them or which are not 'free stock'. The one example I found expressly stated that the photographer gave no permission for the photo to be used in any way.

EDIT TWO: The artist's replies when I linked the copied photo:

I have fully researched copyright before and discovered it's not illegal, at least in this country, to draw from photographs because of the difference in mediums. Thank you for the link however, it was an older photo reference and I didn't know the photographer. I will remove the image because I don't wish to break any copyright laws that other countries have in place.

Second (after I asked which country they were in):
I live in Australia ;) I had to do a lot of research into copyright laws once because a company stole and published my artwork without my consent and I didn't get anything back from it, and during my research I did come across these types of laws. In one case, somebody actually copied somebody else's painting, and the artist tried to sue them but the person was proven innocent because it was a 'different style'. It's a real grey area though, I guess it would depend on the actual case.

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( 41 comments — Leave a comment )
(Deleted comment)
Jan. 2nd, 2011 07:45 am (UTC)
Thanks. That's the site I spent the most time on, which is where it seemed to indicate that the artist is misinterpreting the law (or their use of the photos...).
(Deleted comment)
(no subject) - obsidianwolfess - Jan. 2nd, 2011 03:46 pm (UTC) - Expand
Jan. 2nd, 2011 07:25 am (UTC)
Also, laws or no... such things are quite against FA's TOS.
Jan. 2nd, 2011 07:35 am (UTC)
That's very true. I should point that out to them. XD

Of course, they took down the single instance I could find the source for (but not before I screen-capped it).

Not sure there's much more I can do since I can't find any other sources for their pics. I was just hoping to have some copyright law info for them.
Jan. 2nd, 2011 07:26 am (UTC)

The server's place of residence is the law that supersedes all since the deed is being done on them. That's why e621.net got in trouble for hosting cub porn when it was hosted in Germany because German law considers fictional child porn to be the same or nearly the same as child porn with real children.

Australia has no such law as far as I am aware, the Berne convention to which Australia is a signatory nation is the overriding law and that does not permit it therefore Australia cannot have laws that contradict that (or if it does then the Berne convention overrides them automatically). Chances are the person is just yet another person who poorly researched, came across fair dealing (or possibly fair use, most people don't realise that only applies in the US) as it would be in Australia and decided that fair dealing (or fair use) applied when it would not.
Jan. 2nd, 2011 11:16 am (UTC)

I would also like to add that Australia doesn't have 'fair use' provisions in copyright law to my knowledge.
(no subject) - lilenth - Jan. 2nd, 2011 11:27 am (UTC) - Expand
Jan. 2nd, 2011 07:31 am (UTC)
Like Delphinios said, regardless of the legality in their country (of which such legality is dubious at best), FA's ToS/AUP states you can't upload traced artwork without citing references (I'd try to access the AUP but FA is 502ing me). That's how Star was banned the first time around I believe.
Jan. 2nd, 2011 07:32 am (UTC)
I'm partially wondering about the pictures in question. If you look in the right places you can find photos you can use for any purpose, including commercial ones.
Jan. 2nd, 2011 07:37 am (UTC)
The one I did find the source for, specifically stated "Do not use for commercial purposes, etc." Sadly, my Google skills are failing me and I can't find any more matches. There are just too many pictures of canids out there! XD
(no subject) - kerstin_orion - Jan. 2nd, 2011 07:38 am (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 07:45 am (UTC) - Expand
(no subject) - lilenth - Jan. 2nd, 2011 07:42 am (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 07:48 am (UTC) - Expand
(no subject) - kerstin_orion - Jan. 2nd, 2011 07:54 am (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 08:01 am (UTC) - Expand
(no subject) - kerstin_orion - Jan. 2nd, 2011 08:05 am (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 08:22 am (UTC) - Expand
(no subject) - lilenth - Jan. 2nd, 2011 08:34 am (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 06:09 pm (UTC) - Expand
(no subject) - lilenth - Jan. 2nd, 2011 06:15 pm (UTC) - Expand
(no subject) - foxhack - Jan. 2nd, 2011 07:19 pm (UTC) - Expand
(no subject) - kerstin_orion - Jan. 2nd, 2011 08:02 pm (UTC) - Expand
(no subject) - kakabel - Jan. 2nd, 2011 09:16 pm (UTC) - Expand
(no subject) - celarania - Jan. 2nd, 2011 11:28 pm (UTC) - Expand
(no subject) - anjila - Jan. 3rd, 2011 12:23 am (UTC) - Expand
Jan. 2nd, 2011 08:37 am (UTC)
It may be best to let the name be seen so everyone on here can help you research the art.
Jan. 2nd, 2011 08:26 pm (UTC)
I'd thought about that, but I'm hesitant to bring their name up here because what I have is mostly speculation, with only one verified trace match.
(Deleted comment)
Jan. 2nd, 2011 08:45 pm (UTC)
Thanks for the link to another site backing me up!
Jan. 2nd, 2011 12:12 pm (UTC)
"Additionally, I've read/heard that where internet image hosting is concerned, the laws of the country where the servers reside take precedence, but again, I am not certain."

In most countries it's legal to make depictions of swastikas, but when VCL had a German mirror, depictions of swastikas were banned from the archive because German law forbids them.

Also, if you'll excuse the capslock of rage, FREE STOCK OFTEN ISN'T!
I've reported stock-photo-mangling to have people go "Huhu, Thaily doesn't know what stock photos are!" because they're too dumb to realize that sites who provide stock photos REQUIRE PAYMENT BEFORE YOU HAVE THE RIGHT TO USE IT HOWEVER YOU PLEASE!
And re-selling the image or derivatives (and a tracing of a photo is a derivate product, also not allowed sans permission in most civilized countries, Australia likely being one of them) thereof usually isn't included in the contract, so this photo-tracer would still be shit out of luck.

There's a few people who offer photos for free, but they usually also have restrictions, such as no commercial use.

In my opinion, they're full of shit.
Jan. 2nd, 2011 01:11 pm (UTC)
I've found very few stock images that are free for commercial use, they usually require a vast sum of money to use. Most stock photo sites have watermarks over the sample image to prevent usage. It's amazing how many commercial images have been found to still have the watermarks lol.
(Deleted comment)
(no subject) - kerstin_orion - Jan. 2nd, 2011 08:51 pm (UTC) - Expand
(no subject) - rusti_knight - Jan. 2nd, 2011 08:57 pm (UTC) - Expand
Jan. 2nd, 2011 02:50 pm (UTC)
Not to avoid the original point- but legal or not....even if the artist is using their own photos or legal-to-use photos, it is wrong to do commissions this way unless it is clearly advertised as such. Otherwise it is false advertising and is dishonesty to their customers, who are paying for something painted and getting something copied.
Jan. 2nd, 2011 03:49 pm (UTC)
You said exactly what I was going to. :3
Jan. 2nd, 2011 07:13 pm (UTC)
International becomes a big mess in a situation like this, I would think, and short of a major transaction, I'm not sure how likely it is that even were you correct (and I'm pretty sure you are, that sounds like bull about Australia).

So in the end, best thing would be to mark the person beware if it can be shown such person made the comments and they are incorrect.
Jan. 3rd, 2011 03:36 pm (UTC)

is this artist currently running an advertisement on FA?
Jan. 3rd, 2011 03:42 pm (UTC)
Not sure. Since I browse with Firefox (with AdBlock), or on my phone (which doesn't display animated images), I don't usually see the ads.
(no subject) - likeshine - Jan. 3rd, 2011 03:46 pm (UTC) - Expand
(no subject) - shinigamigirl - Jan. 3rd, 2011 10:02 pm (UTC) - Expand
Jan. 3rd, 2011 11:03 pm (UTC)

Their replies sound like they're ill informed. One of the tests of fair dealing is the level of transformation, I've yet to come across any court that would rule that merely changing the medium is enough to count as transformative.

The case they're claiming as their precedent? Does not exist as far as I'm aware. I would be willing to bet they're referring to a case that I do know of, they just didn't understand the ruling, the case in question established that paintings of public domain photographs could not themselves be copyrighted due to being unoriginal.

Also on top of the initial copyright infringement they'd be commiting a violation of the moral rights copyright laws if they're not saying who did the original.
( 41 comments — Leave a comment )


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