Tracing IS legal. Sort of.

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nokari's avatar
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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.
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Ari-Dynamic's avatar

lol, so if I do object/the offendee contains elements of the original/original is of value [as in someone paid for it], then I'd be in the right to file a DMCA?