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mahri726

It's ok to use public domain 3D fanart (hair) ?

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Hi. I am working on a noncomercial videogame, and I have found a cool hair that I plan to use for a character.

https://www.blendswap.com/blends/view/83637

 The entire model is in public domain. However, on Blendswap, the model is classified as fanart, being based on a workart. (Warning - a bit NSFW)

https://s-media-cache-ak0.pinimg.com/736x/02/52/57/025257060ac1035b2ea3b61bbd7de1a2--character-concept-concept-art.jpg

Now- if I download the model, then alter the hair so it would be less similar to the one in the workart, could I use it in my game without having to ask for permission ? I have tried to track the copyright owner, but he seems to have deleted his accounts, so I couldn't contact him.

As you could see by comparing both, there are visible differences between the 2D workart and the model's hair. Does the copyrighted elements of an derivative work affect/infect the rest, like a GPL code or each element is treated separately ?

Also, since the object modelled is a hair, can it be copyrighted in the first place or is treated like a functional thing, like casual clothing ?

 

 

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8 minutes ago, mahri726 said:

 could I use it in my game without having to ask for permission ?

It's ALWAYS better to ask permission.

 

9 minutes ago, mahri726 said:

Also, since the object modelled is a hair, can it be copyrighted in the first place or is treated like a functional thing, like casual clothing ?

Anything somebody created is the copyright of that person.

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It could depend on what country you live in.

This isn't legal advice and I am not a lawyer, but there's a limit to what copyright can restrict. For example, in the U.S., typefaces categorically cannot be copyrighted (although vector-based font files have been recognized as copyrightable). Additionally, there's the concept of fair use, which isn't universal, but in the U.S. is a quite strong defense.

Personally, I would be 100% confident in use of the hair part of that sculpt being fair use, even if it's copyrightable in the first place. Putting the hair from a 3-D model onto an otherwise entirely original face model? That's transformative, and transformativeness is traditionally the biggest factor in determining whether or not a use is fair. And just think about it like a human being for a second: it's obvious that the hair was not the main draw of that concept art. It's a drawing of a person, not a wig.

Of course, this is only for the U.S. The U.S. has some of the strongest fair use protections in the world, and some other countries are not so lenient or even downright draconian. If you live outside the U.S., I suggest you start by looking up "fair use" and "fair dealing" laws in your country, try to read up on what is and isn't copyrightable, and contact a lawyer if you are still unsure.

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On 7/7/2017 at 1:25 PM, mahri726 said:

The entire model is in public domain. However, on Blendswap, the model is classified as fanart, being based on a workart.

As Tom wrote, the best option is to get permission.  Keep the documentation.

The second best is to verify the license is valid, or at least appears valid, such as the website URL, a copy of the license file from the web site, and a screen capture in case the site or content goes away eventually.

In both cases, keep a copy with the original assets themselves. You don't want to be in a position where you believe it was under a free license but was actually mis-licensed. If you are later accused of infringement but can pull up documentation that it was obtained under a different license from another site that can help you out in the long run.

I've seen projects that keep several directory trees for assets and their permissions.  One directory tree for original or ones they built, another for content that was purchased, another for content that was obtained online for free or from other sources. Everything they didn't build themselves had links to the documentation.  They could also be sub-categorized by license.

On 7/7/2017 at 1:25 PM, mahri726 said:

if I download the model, then alter the hair so it would be less similar to the one in the workart, could I use it in my game without having to ask for permission ? ... Does the copyrighted elements of an derivative work affect/infect the rest, like a GPL code or each element is treated separately ?

Yes. The people who create the first work have the legal right to control derivative works as well, including revenue from the derivative work.  This is in several areas of law, not just copyright.

Some people mistakenly believe there is a specific amount of change, such as 10% of the work, that suddenly the derivative becomes non-derivative, but that is wrong. It is entirely up to a judge.  Judges have found that even basing a fan work on another product, such as placing the world in the Star Wars universe, was enough to be a derivative work.

 

There are many other potential concerns with what you describe.  One is finding the actual level of risk, another is finding the potential costs if that risk happens.  A good lawyer can walk you through those.  Legal defense is expensive, a single legal claim can bankrupt a person or small business.  A lawyer up front can help you avoid most issues. 

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Thanks for the tips. I'll keep searching for the copyright owner, and in case that I don't find anything, I would better not use that hair. Could you expand on what can the original copyright owners do with derivative works ?

 

 

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8 hours ago, mahri726 said:

Could you expand on what can the original copyright owners do with derivative works ?

It is their own legal right to create and distribute them.  (The details depend on country. In some creation alone is enough, in others it is distribution of a created derivative work.)

As for what they can do, they must go to the courts and convince the judge that you violated their rights. You get an opportunity to tell the judge your side of the story.  Usually this goes back and forth a few times, and for big companies this can cost hundreds of thousands or even millions of dollars.

Ultimately the judge decides what is fair.  The infringer may be required to pay a huge fine, stop using the material, pay for a license, or even surrender rights to the derived product to the original content creator. The remedies vary slightly by location on the globe, but it is going to be far worse than getting permission in the first place.

For small-time infringements it is usually not worth it for companies to sue individuals.  However, sometimes they do. If they decide to do it, you probably won't be able to afford a legal defense. That's why the advice is to avoid it entirely.  This is a creative industry, create your own things.

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