Tracing IS legal. Sort of.
|5 min read
nokari's avatar
By nokari   |   
139 232 26K (7 Today)
Published: February 5, 2009
Don't get your panties in a knot.

We all hear the tooting of angry horns around here about the recent "defining" of traced artwork on dA. Some of you reading this right now are probably groaning in your chair about how much this is "blasphemy" and "contradictory to the spirit of artwork and community" and blah blah blah.

fourteenthstar mentioned that they have a lawyer. A very good lawyer. And that this lawyer had gone over, in depth, the issue of tracing and told them that it was perfectly legal for users to upload traced artwork to dA. So I did some sleuthing of my own on copyright laws, their protections, and violations to find out what was true and what was hearsay. Here's a tidbit of what I found:

While copyright law makes it technically illegal to reproduce almost any new creative work (other than under fair use) without permission, if the work is unregistered and has no real commercial value, it gets very little protection. The author in this case can sue for an injunction against the publication, actual damages from a violation, and possibly court costs. Actual damages means actual money potentially lost by the author due to publication, plus any money gained by the defendant. But if a work has no commercial value, such as a typical E-mail message or conversational USENET posting, the actual damages will be zero. Only the most vindictive (and rich) author would sue when no damages are possible, and the courts don't look kindly on vindictive plaintiffs, unless the defendants are even more vindictive.

      The author's right to control what is done with a work, however, has some validity, even if it has no commercial value. If you feel you need to violate a copyright "because you can get away with it because the work has no value" you should ask yourself why you're doing it. In general, respecting the rights of creators to control their creations is a principle many advocate adhering to.




From a Q&A that's similar to the issue at hand:


I learned how to make an image with a tutorial. Is that image mine?

      If your resulting image from the tutorial is a reproduction or derivation of the tutorial writer's original image, the image you created is not held in copyright to you.

      The tutorials are copyrighted to their creator. The original image is in copyright to its creator.

      The use of images created from these tutorials are restricted to and by the terms of use (license) of the tutorial writer as the creator of the original image.

      However, some techniques may not be copyrighted due to the limitations of methods or procedures to accomplish a task, create an effect or produce a file.





What does this all have to do with Tracing and dA? It means that tracing is legal, so long as the original artist does not object.
So there you have it. A reproduction of someone elses artwork is perfectly legal and is, technically, in no way owned by the person who reproduced the artwork, despite the words "copyright" being applied to said reproduction. Copyrighted material is different from copyright ownership.

:bulletgreen: If you are not comfortable with the idea of people reproducing your artwork (even if it's purely for personal use or practice and doesn't affect you or your artwork in any way), you need to define in your artist comments (or in the copyright section of the metadata of your files) that no one is allowed to reproduce or derive your artwork. Should you encounter artwork of yours that has been traced and you do not want it existing on dA, you are within your rights to report it and have it removed.

:bulletgreen: If the original artist has not objected to traces/reproductions of their artwork being uploaded to dA in any way (written or verbal), any report for deletion to the Help Desk will be rightfully denied.
This does not make stealing art okay. An exact or edited copy of an original is still theft. Tracing is different in most cases because it is not artwork that has been copied physically/digitally from an original. A tracing is a reproduction or derivative based on original artwork and that is not theft.

With that said, if you don't say anything or don't care, it is up to the reproducer of your artwork to contact you for permission or not and is strictly a moral and ethical issue.


TL;DR

      Tracing is legal and within everyone's right to upload to dA as their own, so long as:
- the original artist does not object in any way
- the tracing does not contain elements of the original (i.e. a direct copy)
- the artwork does not adversely affect the original artist (in which case the artist may sue for damages)
- the original is considered of value and distributed without consent.

      The law is pretty clear and yes, tracing is legal under the most common circumstances. If you don't like that, then you can very well protect yourself easily by being proactive or you can address your concerns to people that want to change copyright laws, but in no way is dA being contradictory or illegal.
Comments232
anonymous's avatar
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LadySeshiiria's avatar
LadySeshiiriaHobbyist General Artist
I think tracing can be an effective tool if used correctly, it at least saves me time in my own art. Tracing Paper Tutorial - How To Transfer Images You can trace your own art to save time and a lot of people forget this, digital art has copy paste flip but we traditional artists have tissue paper! 
LadyEllesmere's avatar
LadyEllesmereHobbyist Photographer

welp, i hope you know this has giving people the excuse to go ahead and be jerks. Nads6969 basically linked this to excuse her behavior. Thanks.

alisaalvi's avatar
alisaalviHobbyist Traditional Artist
I'm still feel conflicted about this. What I'm talking about was tracing over someone's photo. Sometimes I desperately need guide for the outer lines, as I seldomly draw realistic face facing from side. Only that case. Noting that I'm never tracing the other kind (facing front/half/back side) because I often draw that in that way. But still it kind gave me guilts that I won't develop my skill with tracing. Maybe I do need practicing to draw people in side view more often.
In the same time I feel fine because the drawing that I traced was merely only for relinquish my imagination, and for my appreciation to 2 composers. The drawing was from two photos that I combined into one, and I planned to give the credit too if I want to post it on instagram. Since the photos came from their official website, of course. The website and the fanbase itself only warn to not use the photo for black propaganda, black campaign or fake accounts. So I think I'm still not crossing the rule.

Just wondering with your opinion.
Itzthatgalash's avatar
ItzthatgalashHobbyist Traditional Artist
This isn't a reliable source 
Genetic-Miles's avatar
so you're saying people like nads6969 can post her completely stolen art and get away with it for 10 years even though the original artist isn't ok with it? Stuff like this where the original artist didn't give her permission? 

Nads6969 Overlay 24 by Genetic-Miles   Nads6969 Overlay of Drachea by Genetic-Miles   Nads6969 Overlay of @_hanarain by Genetic-Miles   Nads6969 Overlay 26 by Genetic-Miles

but it's okay according to you. even though a couple of these artists actually said "please don't edit and trace my work" but nads has done that and doesn't give a shit at all and that's totally okay. alright got it.
anntari's avatar
anntariStudent Digital Artist
 "What does this all have to do with Tracing and dA? It means that tracing is legal, so long as the original artist does not object.

    Tracing is legal and within everyone's right to upload to dA as their own, so long as:
- the original artist does not object in any way
- the tracing does not contain elements of the original (i.e. a direct copy)"

This is CLEARLY not saying the situation you described is okay.
Several spots in the post specifically says that the situation you described is not allowed.

Exposing fraudulent artists is great and all, and you appear to do a good job at it based on your page- but this post isn't stating what you're saying it does.
Genetic-Miles's avatar
okay because that person actually linked this journal trying to justify her actions, that's why I'm saying this.
1amayatakeru's avatar
hold on, is that sailor moon fanart? then the overlays is fine cause the main artist committed copyright infringement by taking money for drawing Sailor Moon ocs.
Does the artist have any connection to Sailor Moon, so when the artist does not own the copyright infringement material, why does she gget to decide who traces? hmmm. hypocrite much.
Genetic-Miles's avatar
Edit- I'm also not gonna listen to a fucking homophobe. stfu and just walk away.
your comment is a fucking mess. don't defend this shit you idiot.
CrypticKoi's avatar
CrypticKoiHobbyist General Artist
I applaud you 
FireFlea-San's avatar
FireFlea-SanProfessional Digital Artist
:iconthisplz:
Aqua-Mystique's avatar
Aqua-MystiqueStudent Digital Artist
Thank you for this!
alisiajorge's avatar
 The method works pretty much the same except the family member does not go to the prison straight but instead on the bail bonding business office whereby they prefer their credit card to secure the bond.  www.insiderpages.com/b/1525811…
Bluewinters1's avatar
Is it bad if I trace an artwork but do it in pixels
WuB4o896's avatar
WuB4o896Student Digital Artist
If you do it to study shapes and form- then not.
If you claim it is your original piece- then yes.
k-i-k-i-a's avatar
k-i-k-i-aHobbyist General Artist
I see tracers all over on DA.. on anime screenshots, it's very easy to tell
chocofit's avatar
chocofitHobbyist Digital Artist
thanks for this helpful writing. 
Shinobody's avatar
ShinobodyHobbyist Digital Artist
Okay, so - by this logic, tracing artwork that is being sold in an online shop (like Gumroad), or is a Patreon exclusive, IS illegal? Because at this point work has commercial value, and original artist is losing potential sales to the tracer?
Adaww123's avatar
if i trace an image just for get their pose then draw different character and edit some pose, is that my own copyright & legal? thanks and sorry for bad english
Milki-Moon's avatar
Milki-MoonHobbyist General Artist
I didn't know it was that serious to trace. I often traced digital art to paper and convert it to traditional. But now I feel guilty. :saddummy:
Blue--Rosa's avatar
Blue--RosaProfessional Digital Artist
A lot of here artists  on dA/tumblr/twitter also forget that in the concept art industry and even the animation industry a lot of tracing actually happens, I even had a teacher at my own Uni say to me that "in an effort to meet client deadlines, a lot of us concept artists would cut corners by using other peoples stuff as bases to work off of" this sometimes also included textures and even photobashing and if it involved character creation, using someone elses character turnaround as a base.

Big companies and big time artists don't really talk about this stuff because it does "look bad" and of course looks bad on the company they work for, but tracing happens often. Also, I've heard if the copyrighted material only has 30% of it reused for something it comes under fair-use? I believe that Youtuber's are having troubles with this at the moment. 
AnastasiaPitbull's avatar
AnastasiaPitbullHobbyist Digital Artist
I'm a professional artist myself but wow the tiny thing "trace is illegal if u in the company" I'm self learn artist.:-)  I used to trace I was a kid but now I draw on the computer and paper like a pro. Im expert at art such a dogs and cats and chibis.:-) 
anonymous's avatar
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