Art Talk

Posted on by Paul Beakley

Hey artists, designers and publishers! I have a professional question for you.

We’ve seen those deepart.io things going around, yeah? So…what does the law and/or ethics have to say about processed art, especially if someone else did the original piece that you’re processing?

Here’s my use case: Let’s say I start out by hand-building a rough clip-art-y looking piece of art. Like, I’m not even trying to make it look good: snip this animal head off and put it on that dynamic knight pose. Just like…rought bits and bobs from a variety of sources.

Taking it further, what happens legally/ethically if I run it through a service like, say, deepart.io? A living human being isn’t doing the work, it’s just a process/filter like you’d apply in GIMP, right?

And finally, what if the piece appears in a published for-profit work? The point here not being cheapness, but let’s say I just like the way the final piece came out. Although I suspect motives are irrelevant.

Not saying this is something I’m actually doing, but I am wondering how it plays out. I think the playbook art in The Sprawl (maybe the book art as well) started as CC-BY photos that were then heavily processed, maybe the original Apocalypse World pieces as well. My idea feels related but not the same.

Anyway. Hit me with your knowledge!

Published by Paul Beakley

I founded the Indie Game Reading Club in 2010. I've written and developed RPGs since the mid-90s, now I mostly talk about playing them.

0 thoughts on “Art Talk”

  1. I’m curious to hear, too. My rough understanding is editing a bunch of works together is a new work of your won, but there’s got to be some grey area around things like simple photo retouches.

  2. I assume it’s just a derivative work, but IANAL. There are some pretty weird precedents, like when that guy took photos of other people’s photos and had an exhibit of them.

  3. My understanding is that it’s similar to any other form of derivation and even accusations of plagiarism in music, i.e. there’s a big grey area running a spectrum from “copying” to “new work”, for which the ruling of each individual case ultimately depends a lot on the personal opinions of a judge, and takes into account multiple factors including intent and dilution.

  7. Paul Beakley 17 years may be practically forever, but I very much doubt the laws are caught up to the present, either. Consider how many lawmakers still don’t understand Net Neutrality (or are listening to the cable company’s versions of what it is) …

  12. 10 years ago (OHGODS it’s been that long), when I was going through art school, the professor of my digital art classes made the case that if you change a photograph or piece of art enough it’s now your work and copyright law doesn’t apply. But he said enough was up for debate. It’s still up for debate, considering how often companies like Getty Images are caught trying to sell copyrighted photos (by other artists) that they haven’t changed. It was ambiguous 10 years ago, I don’t think it’s come much further since.

    Eric Franklin is definitely correct: our laws haven’t caught up properly in regards to digital manipulation, digital art, and other forms of software.

  13. Thomas Novosel​ yikes that’s dense, but thank you for that (very common sensical) pointer.

    Might be worth talking with a real lawyer about it at some point. Obviously they can provide written permission for commercial use but it looks like they’re kind of buried the hoops you’d need to go through.

  16. But seriously look at that badass stylized knight. I didn’t modify it (my Monsterknights project is what prompted this) but gosh I’d love to create and use art that wasn’t so…on the nose.

    If deepart had a Ralph Steadman filter I’d be breaking all kinds of laws right this minute.

  17. Eric Mersmann is probably the most correct person to have a real answer!

    The utilitarian answer is: if you somehow fall afoul of someone who wants to sue you, no amount of being within the letter of the law will keep you from being sued.

    The in-my-experience/ethics-based answer is: it’s at least a derivative work, if not an original work (if you make the source image, for example). If the original source is public domain or has a license that allows transformation, then you’re probably on the right side of the law. If you don’t have rights to use whatever you’re putting through the filter, you may not be on solid ground unless you’re using the derivative under fair use (education, parody, a couple other things). I personally wouldn’t use anything I didn’t have rights to in its original form.

    I suspect that the sites terms of service will have a clause that assigns them some kind of rights to the image you get from it (cuz otherwise they couldn’t transmit it back to you, some other legal stuff is behind that – this also enables things like how sometimes Facebook uses/used people’s personal photos in their ads). That may not actually clarify anything, but then again it might!

    (Edit: scooped by everyone re : ToS. But re: the “changed enough” thing, that as far as I know is literally up to the jury. The “change 5 things and its a new work” or other rules of thumb stuff is all bs, legally)

  18. There’s also the practical matter of not wanting to make enemies when you don’t need to.

    Probably there’s cc-by art I could start with. Honestly I’ve never really dug into what’s available. But the good stuff is on Pinterest and Deviantart.

  22. I’m sure there was an interesting article on this around an 8-bit version of a Miles Davis album (Kind of Blue?) and how the original album cover was manipulated into a pixelized version.

  26. https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster

    This is probably the most notable recent example of the kind of thing you’re talking about. Whether or not Shepard self sabotaged in order to not set precedent is another question.

    There are stock image houses with a bunch of images for sale at the price of a monthly membership. Using those and doing filters would probably be safe, but that’s taking for granted that you’re paying for all the licenses.

    Stock image companies are kind of selfish [capitalist machines that screw artists], so YMMV.

  27. All the photos I use are purchased/licensed stock art, Creative Commons/open license stuff, public domain, and so on. As far as I know, so are all the photos used in AW and all the art that Johnstone uses for his stuff, etc. Wikimedia Commons has a great archive of open source photos, for example. As far as I know, all collages are derivative work; it’s just a question of risk and likelihood of legal action.

  28. For games purposes, the weirder/genre-specific stock art on the Internet is generally on Dreamstime, rather than iStock or the other sites.

  29. Re: the Kind-of-Screwed article, I can’t say I have a lot of sympathy. Nobody likes to see the little guy screwed over by a big firm, but is there much more to it than that? If you had taken the original Miles Davis photo, and Sony was using the pixel-art version, would it seem like fair use that way around?

  31. Yeah, I was going to reference the Kind Of Bloop fiasco (in which Jay Maisel was totally in the right), but if you are using your own work (sketches, photos, etc) and applying filters, then you after probably in the clear.

  32. Nathan Black well in my OP I propose making a collage using someone’s art as the base, then running it through deepart. Which I suppose means definitively answering whether the collage is original or otherwise protected.

  34. I’m more familiar with the rules for music and writing, but they’re very similar. The short, short version (keep in mind that IANAL) is that the degree of transformation is the key element—i.e., to what degree is the final product your work, and to what degree is it someone else’s work?

    Whether it’s for-profit or not is, contrary to popular opinion, not hugely relevant (it’s pretty important when you’re considering Fair Use, but for transformative/derivative works it seems to be less important). That’s why someone can create a collage, exhibit it, and sell it for big bucks.

    But there’s no bright-line rules, and you can probably find case law to support whatever position you want to on this, because there are always outliers that don’t get appealed.

    I don’t know in art, but in music the case law has definitely trended away from common sense, so trying to figure out what is legal based on what is ethical is pretty much pointless. Plus there’s all sorts of stuff that isn’t legal precedent now, but could fold into a case.

    One example: legitmix.com, a site that only a record label could love: they’re implicitly asserting that the only way to legally buy a 5-min song that has bits of 80 songs in it (and therefore is using no more than a few seconds of any given song, even given the overlaps) is to buy every single one of those sampled works. It’s like saying that you can’t listen to John Williams’ Star Wars soundtrack unless you also own a recording of The Planets. There is no room in the record labels’ world for a new work that, while building on previous works, has transformed them to the point of being it’s own thing. I mean, I generally DJ Earworm’s annual “United State of Pop” mashups, but there’s no way I’m gonna buy the songs they sample, because I generally can’t stand most of them. Clearly a work that turns songs l can’t stand into music I love is pretty significantly transformed, and more new than old. But the remixers have, for the most part, not taken this to court, so for now the labels’ assertions are the de facto law of the land.

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