Additional information at the end of this journal.

First of all, let me say that my position reflects what a lot of independent and lesser-known artists are feeling about the current position dA is holding on its latest policy regarding allowing the use of tracing on its website. I'm not interested in protecting the interests of the fat cats sitting at the top of their multinational artistic business although by speaking for the smaller artists, all artists are given a voice.

After successfully sueing an employer in 2004/5 and currently being in legal dispute with the DWP (Department of Work and Pensions) for discrimination in the shape of an appeal against an unfair decision, both of which were/are being conducted off my own back without hiring a lawyer (not until the last leg of the employment case in 2005 at least), you'd be inclined to think I am aware of laws and how to efficiently research legal texts. You'd be right. I'm not a lawyer, I didn't go to law school but I am by no means unknowledgeable about law. I had several friends when growing up in France who are now lawyers, my neighbour is a lawyer, heck, my last boyfriend was a law student. I'm still in contact with the barrister that joined the lawsuit against my employer in the last three months of the case (before judgement was issued).

If that wasn't enough, I also am well versed in copyright law for the mere fact that both ~jojodrums and I have worked in the music business, in shops, for magazines, hell, we even performed music live together! When we created our first webzine Funky Mofo we had to make sure that we weren't infringing copyright whenever using photographs of artists other than our own and quoting their artwork in the course of an interview. We never had any problems. However one of our staff was found guilty of failing to ask permission from the Irish magazine she was also writing for to use her work with them in our outlet. Her work was removed and even greater care was taken to insure we were always on the right side of the law. Only once was our work taken by another website based in Italy who, at no point, made us aware that they were featuring our work nor did they ask permission to do so. They even changed the name of the author to their own. Needless to say the article was removed after I kindly yet firmly demanded it was taken off their pages.

So in the light of this, I would like to invite everyone to read the following legal texts/articles in order for us to have an informed debate, one that stems from having a full picture of what the issue is.

The issue is not about me. It's got nothing to do with my views of tracing, it's nothing to do with whether or not I think it's a valid learning tool, or whether or not I think it is an art form in itself. My opinions on these details are irrelevant. What is relevant is what the law says regarding copyright, copying and infringement. That's all I'm interested in discussing. Anything else will be ignored.



BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971)

Article 2: Literary and Artistic Works Covered

Article 6bis: Moral Rights
(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Article 9: Right of Reproduction
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10: Fair Use
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 11bis: Right of Broadcast
Article 11ter Right of Public Recitation
Article 12 Right of Adaptation
Article 14ter Inalienable Rights in Original Works
Article 16 Seizure of Infringing Works

U.S. Copyright Office - Fair Use

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

[...] The safest course is always to get permission from the copyright owner before using copyrighted material.

[...] When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

It could be argued that dA is using the Fair Use term in order to justify tracing. For dA to do so would open the door to all sorts of infringements. As Fair Use is a still greyish area, in order to avoid conflict, every single copied piece appearing on deviantART would have to have obtained permission from each original author, famous or not. This means that by going ahead with their current policy, dA could potentially have millions of lawsuits on their hands.

Definition of tracing as listed in the Cambridge University Dictionary:
trace (DRAW)
1: to copy a drawing or pattern, etc. by drawing over its lines through a thin piece of transparent paper
2: to draw a shape by showing the main or outer lines.

Mishcon de Reya Solicitors - Art: Copyright Law, copy-right or copy-wrong?

Unauthorised reproduction and distribution are offences of strict liability so it doesn't matter if the infringer is unaware.

Artists intending to copy should beware [...] who ought not to fall into the trap of reproducing the work or allowing others to do so. In addition, galleries and museums should also look out, as they can be held liable for "dealing" in illicit copies.

If I want to copy an artwork, what should I do?
Infringement of artistic works applies to both copying across media, for example, painting to photography, and across dimensions. Most acts of copying are therefore likely to involve the law and can include, for example, a museum copying, in digital form, images of artworks in its collection.

1 Does UK law apply?
UK copyright law only protects authors "connected" with the UK (that is, either domiciled or resident here) or works first created in the UK. However, because the UK is a signatory to many international copyright conventions, including the Berne Convention, most foreign artists and authors are likely to be protected under UK copyright law.

A valuable article on the importance of protecting original characters and taking action in case of infringement.
WWLegal.com - Property In Fictional Characters


Finally, deviantART is an international commercial website and thus international copyright laws must be adhere to and abide, without exception. See the Berne Convention.



Thanks to Rufus for getting us out of bed at 3.30am and Jo for helping write this journal!



I forgot to mention a fantastic book:

Contemporary Intellectual Property
Law and Policy
by Hector MacQueen, Charlotte Waelde and Graeme Laurie
Published by OUP Oxford (6 Sep 2007)

Authors, editors, and contributors:

Charlotte Waelde,
Hector MacQueen, and
Graeme Laurie, all at the University of Edinburgh

You can actually consult some of its contents online <a href=”[link]rintsec=frontcover&source=web&ots=ANQUbnoqP6&sig=NBlV6mcEJjwGuBPJhn02_j1iQoM&ei=UqqMSaj1EZWn-gaCzbCJCw&sa=X&oi=book_result&resnum=8&ct=result#PPT185,M1”>HERE