Look at the top of the copyrights and ethics forum here at renderosity.

any reason to make a flame post you all are just foolish why is littlefox upset it isnt like eather item is hers or anything

Grace, she's upset about a concept, not an item. She's mad about the way that many people in the poser community are being acting when it comes to the creative efforts of others. This particular item set her off because it touches close to home for her. She made all of that quite clear in the first post. The issue that has her upset is simple; nothing fancy, nothing evil, nothing petty. Rather than work to create an original concept, or to present what are otherwise nice clothes and such, the creator has taken extra pains to ensure that the item would sell because of it's strong similarities to a commercial character. It was done with intent, it is done for profit, and it may indeed violate trademark and copyright as it is presented. Doing so means that it specifically is considered wrong -- if it wasn't, it wouldn't be against the law. However, knowledge of these greater issues -- the ethics and legality that surround the effort and challenge of being an artist, in the truest sense of the word -- is incredibly rare among those in the poser community. I won't go into why that is, myself. But what she's speaking of is that higher idea, that somewhat nobler concept. It is the post of many others that debased her original statement, turning it into a debate on the merits of a particular product. Interestingly enough, there was an earlier comment that implied that an independent broker was copying the Bratz dolls. It could also have been said that the independent broker was copying the lilz line of images. Or, perhaps, that the lilz line was copying the bratz. Or perhaps all of them are based in a particular style of drawing and imagery that's been used since the mid 70's, adapting it into their own expressive formats. I happen to like the outfit in question. I can, um, recall some clothing similar to it, hee hee, simply by going to my storage shed and digging in a few boxes I keep well hidden and mislabeled. However, I could not use said outfit in any of my commercial work as it is supplied as the apparent risk to me, personally, is too great. Especially if I change the hair a little and fix up the textures on that sword. I do that, I'm either gonna have to post it as fan art or keep it for myself. And if it's going there, I'm not going to pay for it. But there's a large difference between someone who uses all this stuff to earn a buck like me, and someone who finds it wonderfully fun to play with just for their own pure, rather innocent enjoyment. That difference is going to determine the value of it to you, personally, depending on where you fall in those generalizations. but these are the words of a crazy woman, who spends a sizeable chunk of her day filling out forms so that people who steal the pictures made by other people will find themselves learning the hard way about those higher ideas and concepts. The rest of the time, though, I get to play with poser :D

This item should be removed from sale! If there is any copyright issue on any item the brokering company/creator has a duty to fully investigate such charges and remove the said item from sale until it has been given the full clear. There is a duty to the consumer! Without going into the nitty-gritty, within international digital copyright there is a clause about look and feel of said item. I think that no more can be said on this item as it is as plain as the nose on your face which side of the law this falls on. There is satire and then there is outright theft. I am shocked that it still remains available for sale to the general public thus involving them in any copyright issue.

The creator and the owners of the product are already acting to address the matter

Renderosity next?

"The creator and the owners of the product are already acting to address the matter" what you mean Square-Enix???? 8-P

cute, but incorrect. They are not the creator nor the owners of that product. They are the creator and owners of a similar product. which, despite my earlier misgivings, I'm going to post about, if I can edit the damn thing into something understandable by the expected readership... hee hee hee

cute - yes I rather thought so! I have a rather good understanding of the law. I do however get rather shocked by the amount of times people have to be forwarded to more formal copyright threads to explain. And even more shocked by the poeple who get wrangled in copyright disputes even with a fulltime copyright department. Even still interpretation by different parties always remains open, sometimes bazar. I suppose you can bring a horse to water but you can't make it drink. It seems that legal literature is a bit of a tough bedtime read for most! speaking of which......................................

So lets say she changed the pose of the pic...changed the texture colors a bit ... Not so the same outfit then, no? Miss little fox's blacker magic also looks like an ffx2 outfit. How about the Krystal's Black Rose ffx's Lulu comes to mine....or who was the evil queen again in FF8...boy little foxes outfit for v3 The black mage looks ALOT like her. How can Ms Littlefox complain out others maing FF inspired clothing when she does it as well? Afraid of competition? I still say this whole thing is ludicris.. By these same standards koshini should be taken out of stores, the sloop John B. should be removed...they are clothes...you can buy the Paine like outfit as they call it in costume stores and I can guarantee you it is not condoned by square. What about earlier anime using using simular outfits for s&m themes. It is not a trademark, ideas cannot be copyrighted, (neither can places or names even if fictional) Just change the color and the pose of the pic...it is not as if she took the mesh from ffx2 and tweaked it. I'm for copyright, I have fought for mine, but taking it too far will destroy the ability for artists to exist.

Not an Evil Queen in FF8... You refer to the Sorceress Edea. The Costume in particular came from the Parade scene in the game. The Crest in particular in LadyLittleFox's Dark Mage. As someone mentioned earlier in this thread, The style of clothing existed in the 1980's with the Hair Bands (Pat Benatar, The Scorpians, etc... come to mind) Therefore, there it is NOT an original idea for Square Enix either.

"It is not a trademark, ideas cannot be copyrighted, (neither can places or names even if fictional) Just change the color and the pose of the pic...it is not as if she took the mesh from ffx2 and tweaked it." Actually, the paine character is trademarked. I just looked it up. Twice, in fact. Fictional places and names can be trademarked if they serve to identify a source of goods or services. And Trademark is specific. It is NOT the outfit that is causing the problem. It is the marketing of that outfit. This isn't about llf's stuff, or france's stuff, or Square's stuff, or sony's stuff, or microsoft's stuff or rendo's stuff. This is about marketing. This is about using familiarity with a particular product in order to sell more by direct association. It's about misappropriation of trademark. Not one merchant against another.

Ditto Tirjasdyn. I can think of hundreds if not thousands of items being sold that were "insipred" by other items. I mean really, everybody who makes a piece of clothing is inspired by something/someone...it could be as simple as a suit in a catalog/a house/vehicle etc. Face it, no one is here is a fashion designer/haut coutier, architect. If you were you wouldn't be modeling,you'd be in Europe trying to get your designs realized by some famous designer. Almost ALL the fabrics being sold or used in items are scanned or photgraphed.

A good example, would be that of runway fashions. It's not but a couple weeks after a show that JCPenny/Walmart/Macys-Richs etc is replicating the design, maybe they use lesser quality fabrics/offer it in different colors etc. But when I see it in store, I say OH, Julie Roberts wore that at the Oscars....etc

Most CG graphics I see ALL over the web are inspired by something a movie/game/photo one has scene somewhere.

Message edited on: 11/28/2004 20:11

Yansen - a very honest to the point post you just made, I don't know why we bother - deaf ears and all. Admittedly copyright infringement happens everywhere, on high street fashion and websites selling poser products...............that however does not mean that it is right! Inspiration may be gained from all around but there is a certain time that it goes beyond the point. Within the law there has been many an individual who has been sued over look and feel of an item never mind a blatant copy (not that I am talking of any particular item) the lack of talent in imitating another's work does not allow for the intent. Imitating work for resale is wrong, though imitating for self improvement has some merit.

muttering about the loss of time better spent slavishly copying down to the smallest detail that lump of coal... This isn't legal advice. This is legal opinion based on personal experience, knowledge, and work. After much discussion, often heated and always fun, with lawyers, judges, and a few other folks who, like me, spend a chunk of time going after folks who do cute things like trample someone's intellectual property laws, I've come up with some things that generally might be useful as guidance in the process of making decisions. Some of it is based on forward looking considerations based on cases pending currently, but the vast bulk of it is based on established rulings and laws governing the Untied States of America. The reason that these laws, in particular, are of import, is that they are laws of recourse to the folks who broker and purchase through most of the poser sites out there. It doesn't matter if you live in Italy or Brazil or Korea -- for many of the stores, they are based in, operate from, and state in their Terms of service that the laws of record are US based. I'm on record all over the place as saying that copyright doesn't cover likeness. And I will stand by that. Copyright Law, itself, does not. However, in the course of rulings on what many folks consider to be grey areas, the courts have, to some degree, relied on the intent of the laws, using concepts from one area of intellectual property law and applying it to another area in order to reach something we all love: justice. When it comes right down to it, you cannot base your actions entirely on what has gone before, as there are times when what has gone before might not be applicable. However it is still a good guide, and it is the manner in which the law works. I'm not trying to say what should and should not be sold, nor am I posting this out of an interest in influencing that. I'm posting it because, once again, I'm seeing people I like a lot being beaten up for stuff by what, in my crazed opinion, are essentially a bunch of lynch mobs. There are three critical concepts that apply in the issues that have been raised of late surrounding this stuff. These issues are: transformative use, Trade Dress, and Ethical Motives. I'll deal with the ugly one first. Every artist in our business who deals in any sort of work which is essentially an effort to duplicate a popular figure has to address the ethics of doing so themselves. It is not something that can be made, willy nilly, across the board. Profit shouldn't be considered in the process, nor should recognition. Let's face it -- we make this stuff because we think it's just as cool as everyone else. It does inspire us. It might be the challenge or the coolness or even the healthy glow "heh" -- whatever, its why we do it. Ethics aren't a consideration then. Its like a scientist in that respect -- doing something because it must be done. The maker of dynamite never realized what he'd done until someone used it to kill folks. That's why we have a prize named after him and supported by the profits from his work now. Because this is something that can only be made by each individual, there are going to be conflicts -- everyone will tend to feel differently about it. And it is that constant difference that leads to why we have the others; it is the role of what we call civil law to sorta even out the differences in a social sense (sociologically speaking, that is). In this specific case, we have a large, complicated body of law covering the concepts of intellectual property. The things that are most important to note within all of the discussions involved are those called transformative use (conversion of something from one format to another makes it a new creation under copyright) and Trade Dress and trademark in another. Trademark is a body of laws that deals in specifics. Details. But those details are considered -- for the most part -- in sum. Meaning, it is not just the bottle, and it is not just the shape and it is not just the color, but the sum total of all three applied together, as a single, distinctive element, which counts. But trademark goes beyond that, as well. A trade mark is, first and foremost, a mark of trade -- that is, it is a means by which a good or service can be recognized by the public at large. That's a critical distinction -- and trademark law is all about distinctions. In trademark, you can't just whip together a graphical image, call it a character, and then protect it under trademark. You can't. No matter how hard you try. What you have to do though, is give that character a function in which it indicates a source of goods and services. Which means, in simpler terms, that people identify it with what it does. Mr. Clean is an agent of soap. Superman represents the superman line of comics. The enterprise ships represent various shows in the star trek properties. It has to mean the thing it is representing. Given rulings, this gives the underlying nature of trademark law the purpose of preventing exact duplication of a character, or an imitation of the character where the likely result (that's important) is to cause public confusion, mistake, or deception with regard to the source of the goods/services that carry the mark. "Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark." A trademark is, essentially, the same thing as a "brand". While this hasn't always been the case, it has, especially today given rulings in recent years, become slowly the best example that I know of. Likelihood of confusion also doesn't require purchase, in much the same way that other IP theft doesn't require intent or profit. If the manner in which the goods or services are sold is such that it leads the buyer to believe that there may be some connection, or in a manner that might infringe on the rights' owners' ability to profit in the same way, then the line is crossed. So long as potential buyers believe: 1- it is associated with 2- it is sponsored by 3- it is approved by 4- it exploits the market of 5- it damages the reputation of 6- it risks the dissolution of a trademark, it is, essentially, destroying it. And if a trademark is destroyed, it is lost. In the specific cases raised of late, the concept that is causing the problem is related to one called "Trade Dress", which is a total commercial image of a product. It's the way a good or service is marketed. "When Trade Dress Is Protectable Trade dress is governed by the same set of laws that protects unregistered trademarks. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a "source-associating cue" for the unthinking purchaser. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. To be protectable, trade dress must be inherently distinctive or possess "secondary meaning" (the public associates the packaging with a single source). Further, the trade dress must be non-functional. As a rule, for trade dress to be protected, it must be instantaneously identifiable in the mind of the purchaser. This is usually the function of strong sales over a long period, supported by consistent advertising, promotion and publicity. " {Copyright Permission & Libel Handbook (John Wiley & Sons), by Lloyd J. Jassin and Steven C. Schechter} Courts will do an awful lot of thinking when weighing trade dress issues. But, essentially, the key things they will look at are: 1- What would an "unthinking buyer" believe? (and yes, that's the definition -- someone who does not pay attention to details) 2- Does the overall look give said buyer the idea that they might come from the same source? 3- The distinctiveness of the trade dress (in this case the recognizability of the image) 4- The intent for personal gain on the reputation and recognizability of the mark It is these issues -- essentially, marketing issues -- which are at play. Now, Court rulings governing such trade dress issues are rather inconsistent at the appellate level, although under the current supreme level there has been a strong and somewhat rigid consistency in the cases they have decided to hear favoring the overall look. These things are made up of individual details, the sum of which is what is important, not the details themselves. Anyone can go out and copy the clothing worn by the cast always of Gilligans island for poser. They can sell those meshes -- which are a case of transformative use -- as much or as little as they please. But it is when they begin to sell those items in a manner that invokes, in the minds of the customers, the show itself, that they cross the line into profiting from someone else's intellectual property (in this case, Sherwood Schwartz, god love him). It's this habit -- which is rampant among us fanboys and fangirls of these cool shows -- that is creating the troubles that swirl around us. This cloud hovers constantly, and we are right to look at it and wonder when the rains will come. Because they will. Sooner or later some large media company is going to realize the potential profit to be made here. And when they do, they will come in and they will clean house. But that's my crazy opinion. And I'm often told I'm wrong. But I did say a republican would control the white house this year in 1978...

yawn

Hire a lawyer.

Sue 'em. Sue 'em all.

Wait.....better yet.......give them a fair trial -- in this thread, and then hang them from the nearest Haunted Tree (available in the RR marketplace.) !

Z-z-z-z-z-z-z-z-z-z-z-z-z-z............

hee heee

"It is NOT the outfit that is causing the problem. It is the marketing of that outfit. This isn't about llf's stuff, or france's stuff, or Square's stuff, or sony's stuff, or microsoft's stuff or rendo's stuff. This is about marketing. This is about using familiarity with a particular product in order to sell more by direct association. It's about misappropriation of trademark. Not one merchant against another." Exactly like you said above. But obviously some do not get the point but reduce this issue to some kind of merchant or store bashing what it never was.

"Just change the color and the pose of the pic..." Sure, that's all it takes. Or may be just change part of the outfit. The point is how do I know I have to change the poses if no one told me that there might be a confusion with a well known character ? I'm not a lawyer, but if I buy something, I want to be able to use it without someone telling me "Hey, this is copied on XX game/film !" @ynsaen : "the Untied States of America". Now that's a cute lapsus...

considering the top doesn't even match the outfit there shouldn't be a problem...

So it doesn't. And to be a trademark violation, it would have to be identical...

No, not identical. It merely needs to be enough to be readily recognized by an unthinking buyer are the item in question.

So, does that mean if I look at it and think "hmmmm...that looks familiar, but I can't quite place it" ...where does that put it? Or how about if it's the situation where it's known only to a "section" of potential buyers and not readily known except to them?

It's that question, precisely, that is why I avoid making a flat out statement of do or do not do this. That's the question that each individual artist is going to have to make for themselves. And the reason I say that is because these matters are decided, usually, not by a jury of peers, but by either a single judge or a panel of them, depending on where they stand in the appeals process. And I say usually, above, only because the DMCA has changed that, since the new distribution provisions of it now make it a criminal offense in certain circumstances. And ya know, I don't have a freaking clue how a judge -- who is typically not going to be terribly familiar with all of this stuff -- is going to rule. Since, in many of these cases, we're dealing with licensed properties, where the owner of the property has a potential to make an income (it's potential, not actuality, that applies) through the same means, I'm inclined to suspect they would rule in favor of the property owner -- but that's my gut feeling. It will also depend on all the other facotrs involved, including things like transformative use and trade dress. So while I might not have a problem with certain distinctive elements, personally, I might have an issue with the collective sum of those elements. By that last bit, let's go back to the gilligan's island example earlier. If we work from the specific assumption that Gilligan is a trademarked character, I would not expect there to be a problem with someone selling a hat, shirt, pants, and shoes similar in color and form to the ones he wore. Even colored the same. Put that same outfit on an skinny, kinda dorky looking guy with a strong resemblance to the actor, drop him on a boat or on an island, and market it that way -- then yeah. There's gonna be an issue. But, at the same time, the creator could choose to market that same item simply by showing only the clothing. No big deal, since that's essentially what is being sold, in truth -- and that's a valid transformative use. It's when those elements are used in confunction with the other elements that make up the body of a trademark that the issue lies. Now you wanna get really freaking wild, let's look at buildings, boat hulls, and bottles...

Let's not and say we did, eh? As LLF said, there is no easy solution and it's definately something we as a community and as individual artists need to address.

Does copyright or trademark give Square-Enix the ability to lock up an entire style of clothing such that nothing like it can be made? I can see where the design of the outfit in question resembles the outfit that Paine wears, and I can also see where they differ. I've also seen similar outfits in the punk rock styles of the 80's. I realize that the marketing of the outfit brings out the similarities more than the differences but there are differences. That is part of the question. People have nicely identified the two areas that a court would probably consider germane -- lines of clothing and animated cartoons. In fact, this would make a good law review article, if someone hasn't already done one. I'm not even close to having an answer, though pay me $400,000.00 and take the case through an appeal and I can give you a good idea ... There are two important thoughts: First, what is the company policy -- that will tell you whether or not you invite IP litigation. Is it a Lucas-like "we love to share and create a fan base" or is it a Disney-like "we are already selling something in every niche and would really rather you didn't steal our sales" approach? Winning IP cases isn't always that much fun. Second, what warning should you give the artist about look-a-like issues? In animation this is especially interesting as the "look" often swallows up hordes of characters -- so many of them look almost identical -- and there are often entire genres -- e.g. felicity, sheesh, there is a whole genre of "furries" and literally hundreds of cat characters alone. And ya know, I don't have a freaking clue how a judge -- who is typically not going to be terribly familiar with all of this stuff -- is going to rule. no kidding. The point is how do I know I have to change the poses if no one told me that there might be a confusion with a well known character ? I'm not a lawyer, but if I buy something, I want to be able to use it without someone telling me "Hey, this is copied on XX game/film !" which is important. Anyway, someone needs to write an article for a law review on this point. Would even be good if you wanted to teach IP. But, I can see an advertisement disclaimer: "My take on the female catgirl. This type of character represents a sub-genre with several hundred known characters, the most prominent being [list five cross dressing fanboys], [list fourteen animated characters], [list three comic book characters] and [list six novels]." Or, germane to this point: "This character uses clothing and styles from the 80s, used by [sixty-five animated characters], [fourteen game characters], [twenty-five comic book characters] and others. This particular style is evincing a strong comeback and is a developing area for renders, with several competitors considering or working on their own lines."

Here's my problem with all of this. Why did Lady Littlefox hold up Frances as an example when she herself has done the same thing? Go to www.elfquest.com and you will see the similarities between her work and theirs. When I first saw Koshini, I thought of Elfquest and I even found it interesting that her models had four fingers the same as those characters. How does the saying go about glass houses?