So - I'm dredging through the mists of an ancient hard drive before tossing it, and I stumble across this little item.

It originally sat on PoserPros, but I figure it's worth a dusting and posting.

(warning - it's long, and prolly should be moved to the Copyright section, but hey - enjoy!)

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Tips and ideas for ethical and legal product creation and sale.

Thomas J "Penguinisto" Miller jr.

This document is licensed under the GNU Free Documentation License, a copy of which in full can be procured freely from the website http://www.gnu.org

This document may not be released under any other license, and may not be modified, distributed, and/or re-released in any way whatsoever without full adherence to the GNU Free Documentation License. Modifications to this document must be made freely available to the public. All attributions must be kept intact, even if portions of the document are removed as part of any modification.

Numerous contributions though, but are lost to the mists of time (unless someone can dredge the published version back up out of the Wayback Machine’s archives of the now-defunct poserpros.com)

Rationale:

At first glance, it seems like it will take almost as much time doing the following than it will to make your product. If that is truly the case, then either you are the best professional modeler and texturer on earth and won't need this guide, or you'd better sit right down and seriously rethink your plans to become a merchant.

This is split up into four sections: What a merchant must do, what a merchant should do, a reference section, and a glossary of terms.

The first reason to follow this guide is this: It’s your best bet to avoid a lawsuit, pulled product, or a shut-down store. I won't even have to mention the reputation hit and humiliation that will also follow should you stumble across the wrong end of a copyright claim. The second reason? This is a more general list of tips and practices that will help improve your ethical standing among customers and peers, and to help you prevent any later confusion should anything go wrong. The third reason is that this guide contains a further list of useful resources that you may indeed find helpful. The Glossary is to clear up any confusion that may exist with certain terms and phrases.

Still Not Convinced?

Well, I’ve seen a lot of crap happen since I began this wee journey through the CG world - let me share a few bits with you…

I’ve seen blatant ripoff artists suck down thousands of dollars in others’ money, only to evaporate (with that money) the moment the original author lodges a complaint (see also a former Renderosity merchant named “ByteMeOk”). As it is often expensive to run a full-blown lawsuit for any sum under $10,000 USD (and almost impossible to collect on one over $20,000 USD), many of these thieves get away with it rather neatly. Oftentimes, the store where you sell your wares either cannot or will not do anything about it beyond pulling the offending product from their virtual shelf. Legally, they really don’t have to do anything more than that, and good luck holding the store accountable for anything not explicitly spelled out in the Digital Millennium Copyright Act (or similar).

I’ve seen honest/innocent merchants release a neat little compelling product, only to realize to their horror that they did not have the rights they originally thought they had (see also the “Alexis” product.) The result is a promising product that loses all sales momentum as it gets/stays pulled until the issue is cleared. By then, quite a few thousand dollars in sales are missed.

I’ve personally built up and sold a couple of pose sets, which are not copywritable at all, but had someone immediately accusing me of ripping off his products. Because I had all of my original files, I was able to prove instantly that not only can such a claim not be made (because you cannot copyright pose sets), but that the claim of copycatting him was pure and utter crap. The site admin dismissed the claim almost instantly.

Finally, the biggest caution: I watched as one merchant built up her own website/store, made it very popular, made enough ongoing income from it to make it her full-time business. She then destroyed all of that entirely by ripping off a copyright from a physical medium, thinking it didn’t apply to her digital product, then sold it on her own store (see also “poserpros.com”). Her entire livelihood vaporized in less than a month. That one (in my opinion somewhat arrogant) mistake wound up costing her what was otherwise a promising career. Mind you, the original copy of this very document sat on that website…

But hey - do you think no one will notice if you swipe something little? If your product is something that no one buys, then sure - you can likely get away with cutting corners and in snitching bits of someone else’s stuff. However, if it takes off, you can be very certain that others will see it, and some will actively compare products just to make sure… and not just the copyright holder.

As a solid for-instance, in the last example up there, the lady who lost her site (and worse) had her indiscretion discovered by someone who knew (or at least was able to research) wallpaper pattern designs, and simultaneously held a very hard grudge against her. One would think that such things would reach lottery/lightning-level odds of happening, right? Well, these things did happen, and they do happen - with alarming frequency. That mesh you ripped off will likely be instantly recognizable to the original mesh-maker, considering that he or she likely spent hours building it. That skin or fabric texture piece you snitched will likely be quickly recognizable to the original texturer, as he/she also spent hours on end lining up seams, bending snippets, and suchlike. Same goes for almost any other copyrightable product out there. Note that many of the more popular merchants build little ‘tells’ into their product, in ways that you likely will not recognize until it is used as evidence against you.

TL;DR? Don’t be stupid. Do the right thing. Do your homework. The rest takes care of itself after that.

Who should use this guide?

If you're just beginning as a merchant, you should find this useful and helpful before launching your first product.

If you are an existing merchant, you may do well to study this guideline, then go back, audit your existing products, and make changes as necessary, notifying your existing customers and sending them updates as well.

Given this, I’m guessing that everyone who pursues a merchant-like endeavor in the 3D/CG realm should read this thing.

Big, Fat Disclaimer:

The odds are perfect that no one who contributes to this document is a lawyer or is anything of the sort. Therefore, if you're not sure about any of it, go talk to a real lawyer, preferably one who deals with copyrights and intellectual property issues on a regular basis. This is just a collection of experience-won tips and guidelines that will help you either as a present or potential merchant, and does not constitute legal advice in any way.

Now, with all of that out of the way...

What You Must Do

The short version (for the impatient):

(*) Understand the copyright laws for your country, and of the country housing your store or brokerage. This is paramount!

(*) Understand that not everyone has to follow the same laws you do.

(*) Always include a text (or similar universal-formatted) file, which includes basic information about your product, how to use it, and most importantly? A statement of your own copyright claim(s), and if applicable, a statement of your copyright compliances.

(*) Always document your sources, verifications and receipts, and keep them on file. If you cannot document and verify it, DO NOT USE IT in a product!

(*) Learn the difference between being licensed to use something, and being licensed to redistribute it. Also learn the differences in how rights are granted to you in anything that you incorporate into a product.

(*) Make sure that you either give full credit to all contributors to your product in your readme.txt (or other document) file , or state that you do have all credits and verification on file, and that they are available by legal request.

(*) Recognize that just because someone makes the same type or style of item as you do, it does not necessarily mean their item is a copyright violation.

(*) Know that there are some items you can sell legally, but you cannot copyright them at all.

(*) If you are building models, morphs and/or textures for a product (or as the product), you should save all steps in the process of creating them, and keep them on file.

(*) If you think someone has just ripped you off, STOP! and think about what to do before doing it.

(*) If someone claims you ripped them off, STOP! and think about how you will respond to the claim.

The long version (the how and why):

(*) Understanding Copyright Law. For those of you in the US, an online FAQ of copyright laws for the United States can be found at http://www.loc.gov/copyright/faq.html - this is your best and most comprehensive guide, and will answer a lot of questions you might have (and dispel a lot of myths, too.) We concentrate on US copyright law because most merchant sites and brokerages are based in the United States, and they too are subject to this law. Excellent resources on this can also be found in many places online, and the actual full copyright law itself for the US can be had at http://www.copyright.gov/title17/ . For those who do not live in the United States, please be sure to look up the copyright laws applicable to your country, because they will also be relevant. If the site or brokerage is outside of the US, please be sure to either get (and study!) the copyright laws for the country the server is in, or e-mail the admin of the site for this information, who can point you to an online version of those copyright laws. Please look up the actual english-language version (or one printed specifically in your native language), and not rely on an online translation service, as legal nuances are often lost in mechanical translation.

(*) Understand that not everyone is bound by the same laws you are. The Internet is a global thing. Nations around the world have different laws and restrictions regarding intellectual property (you know, copyright…) The good news is that most civilized nations are bound by the Berne Convention, which gives a more-or-less universal agreement that the item in question is bound by the copyright laws of the country in which the item originated. So for example, if the item was made in France, it is bound by French copyright laws, and anyone else’s use of that item is also bound by those same laws. Now perfect enforcement is pretty much a non-starter given the sums of money involved, but by and large most folks living in a Berne Convention signatory nation will/should follow the law under which the originating item was spawned.

However, that said, if someone from another country violates your copyright, odds are good there’s absolutely nothing you can do about it when it comes to litigation. Conversely, the same applies in reverse. However, being known to rip off someone else’s work is incredibly bad business, and will ruin your reputation very quickly.

(*) In your documentation, include some basic information. While you don't have to make it a long, drawn-out novella, you do have to include some basic information. This information should include the following:

A basic but reasonably complete description of the product you are selling
A complete list of files included with the product
A statement declaring that you hold the copyright on the product’s contents
If there is a partnership or there are other contributory items included, you must also list the copyright holders of the items they contributed or licensed to you.
Be smart enough to include the phrase “All Rights Reserved”, which means that unless you say otherwise, it’s yours.
List what you permit the item to be used for - be specific!
If you do not want an item used for a particular purpose, you have the right to say as much, but you must say it.

The last two items deserve a bit of expansion. Copyright laws allows you to set the conditions under which you can release something. This means you can sell an item and require the user to include a photo of him or herself wearing a purple bra on their head if they distribute a rendered image or animation that uses your product. Yes, that is perfectly legal to do… incredibly stupid, but yes, legal. You’ll probably want to specifically state that you allow for commercial use of all rendered artwork derived from your product (that is, they can sell rendered images made using your product). You do this so that folks who make a living selling art will buy your stuff. You should also include permission to distribute non-commercial rendered artwork derived from your product as well, so that folks can share their pretty pictures online without fear of a court order. Those two are probably the basic items you want to include, and you can combine them if you like.

There is another part of this which can become pretty useful to you… it can protect you from secondary or incidental liability. How? Here’s a perfect example: if you just built a mesh for sale that looks like a child, you can specifically state that your product is not to be used in any pornographic manner, be it commercial or not. Anyone who does can then be litigated against for copyright violation (on top of whatever else his or her country of origin may nail them for regarding homemade child porn.) Doing so in such cases also protects you from any potentially nasty troubles down the road. Let’s say you make a figure that looks like a little boy. Some idiot out there makes homemade child porn out of it. The cops arrest the guy, but then decide that hey - you sold the mesh, so you might be responsible as well — especially if it has any sort of anatomical fidelity (let’s say you modeled a penis on the thing). That statement saying you do not allow pornographic content to be made from your product will be your first and biggest defense, and it will most likely keep a zealous prosecutor from pursuing you over something you did not do.

Aside from that one big glaring bit of situation, there aren’t too many reasons why you would want to put in any additional restrictions, but you can. For instance, you could require a residual royalty from anyone who uses your product for commercial work - though why you would want to do that would be a guess, since it would limit your product’s appeal. Long story short, you have the power… what you do with it will help you or hinder you - you decide.

(*)Documenting Your Sources. Unless you create every bit of your product from scratch, always keep records of everything you have bought or received for inclusion into your product. Base photos, texture patterns, meshes (licensed or bought for commercial use), and pretty much anything that will, in part or in whole, be included as part of your product. Seriously, this stuff needs to be well-documented. Also, if you are in partnership for a product, exchange (real-world, not just email) contact information, keep it on file, and try to include a statement defining exactly who has copyright over what items. Do not work in partnership with anyone who refuses this.

For photographic material, keep a copy (be it on paper, film, SD card, or on your hard drive + backed up) the following: Invoices/receipts, all original images (and negatives if possible), notarized copies of any contracts (esp. those listing any and all publishing rights granted), and releases or waivers from the photographer and/or the model(s). Include all licenses (and their conditions) if they were any granted, and list royalties as well if there are any. If the model was nude during any photography (for females in the US, this includes bare-breasts), then be sure to include a signed statement from the model that he or she was at or over the age of consent during the shoot (in the US this is 18 years of age, but the exact age actually depends on your nation's laws. Check to be sure.) Also include full online and physical address contact information for the photographer and model(s), and keep them on file. If you are using commercial photos, aka "stock" photographic material, then be sure you get all the above information on and from the company or corporate entity, as opposed to the individual photographer.

For mesh and non-photographic texture material, include the full contact information (physical and electronic) of the original artist, a statement from him or her granting you permission to sell the item or parts of it (preferably signed and notarized on paper and then mailed to you), and if there are only parts of the files that you are allowed to use for commercial purposes, also get a signed statement detailing exactly which parts you are allowed to use and/or re-use. and the original files as you received them (that is, back them all up immediately before working on any of it.)

For programming utilities or scripts purchased from others as part of your product, get a copy of the license granted, and all receipts or invoices included... Document and back up all granted source code or script code, your modifications, and under what conditions they are to be modified and sold. If you are the sole programmer or script developer, then document and back up your source code, the license you have granted use of it by, and be sure to either be prepared to grant a warranty and/or indemnification for your product, or explicitly deny any hope of granting warranty, indemnification, or both, when you release your product. Keep record of all patches and revisions, and always back up and store your entire codebase before revisioning or building patches.

Most importantly of all, if you cannot document and verify the source of a file or items, DO NOT USE IT as part of a product.

(*) Learn the difference between being licensed to use something, and being licensed to redistribute it. Just because you bought something does not automatically give you rights to re-sell it in whole or in part, or even to use a derivative of it for commercial purposes. Take the time to read the license that comes with the item you're interested in using for resale, and make sure you can actually re-sell it in whole or in part, and if so, under what conditions. For instance, if you purchase a texture and want to use it as part of a character set for later sale, be sure that you are actually allowed to do just that. While a license may give you the ability to create an artwork “render” from the product and sell the resulting artwork, it may well forbid you from incorporating that texture or mesh into your own product and reselling it. When in doubt, contact the merchant. If you're still in doubt, don't use the thing at all in any of your products.

(*) Giving Credit. You must always give a copyright notice and credit to items which you licensed or bought for inclusion in your product. If everything is yours and yours alone, then no worries, you can skip this whole set of paragraphs.

However, if you purchased a set of base items, or had them given to you, you must include a statement that the person or entity you bought or licensed the item from holds that original copyright. As an example, if I buy a set of skin photographs from “Ted's House of Skin!” that were originally taken in 2002, then I have to include a statement in my documentation that at least says the following:

You can also credit the exact file if you wish, or you do so if the license on the item you bought demands it.

If others contribute something freely for use in your product but doesn't want credit, or you have a “silent partner”, or the folks who sold you a license to use their stuff commercially doesn't want credit, then you must, must get their contact information, and a statement from them that they own the original copyright on the items contributed (see earlier as to exactly what.) While you don't have to include full credit in the readme.txt file if that's the case, you must at least state the following:

Other contributions to this product are verified and on file, and are available upon request.

In all cases, you must respect the license or wishes of the person contributing to your product.

(*) Recognizing the difference between infringement and mere competition. Just because someone creates the same bit of clothing item or mesh as you, or that someone else also makes a skin texture with tan lines on it, it does not by itself constitute a copyright infringement. There is a commonality between items like CG objects depicting the human body, or a model of Stonehenge. Also, there is a perfectly legal commonality for items that have the same general or specific use and placements, like boots or underwear. Just because you create a set of combat boots for a mesh does not mean that the next merchant who creates a set of combat boots for the same mesh is suddenly a copyright infringer.

The only way you can conclusively prove that someone has infringed upon your product is by a direct comparison of the two items of contention at the file level, either by photographic comparison (for instance, between textures), a direct comparison of polygonal wireframes (in the case of meshes) and/or delta displacement points and positional points of reference between files (for lights and morphs.)

For binary (as opposed to ASCII)-coded files, you will have to use another method of determining violation, either through the conversion of both binary files (your file and the suspect file) to ASCII, or by using a hex editor or other comparator program to compare the two files for similarities.

Also, ideas themselves are not copyrightable – only the resulting file is. So if you create a product that for instance puts a big fat spike on Victoria's butt, and it turns out to be a huge fad and everyone wants to do the same thing in their artwork, someone else can create and sell the same thing without fear of violating your copyright (so long as they build it themselves.) This snippet comes from the US Copyright Office, and should explain it better (see the resources section of this document: )

You may express your ideas in writing or drawings and claim copyright in your description,

but be aware that copyright will not protect the idea itself as revealed in your written or

artistic work.

() There are some files you simply cannot copyright. Within Poser, DAZ|Studio, and other CG programs, there are some items that you can sell without a second thought, but that you cannot copyright. This is because the copyright is either owned by the company that created the program you're building the product for use in, or because they are marked as a process and not the final product itself (which in many cases requires a patent), which in turn is already the right held by the program creators, not you. Items you cannot copyright for use within Poser do include the following: Light Sets (.lt2),and Camera Sets(*.cm2). You should always to consult the EULA for the exact types of files which can and cannot be copyrighted.

(*) Keep your creation process and back it up. As you build a texture, model, or nearly any other file, you will naturally have intermediate and incremental back-up files saved off as you progress, to protect against file corruption, failed saves, and other disasters common to computer-based artwork. Keep all of those files, back them up, and save them. Also be sure to include test renders, test files, and anything else you've written to disk electronically to produce your product. This not only proves that you yourself are indeed the copyright holder of your product, but it also provides a perfect defense in case someone else accuses you of violating copyright for a near-exact-looking item, as you can use those files to prove, step-by-step, how you built the product. In the case of textures, save your layers individually and in whole as well.

(*) If you think someone has just ripped you (or a friend) off, STOP! and think about what to do before doing it. This is pure common sense, but it is the first thing to get discarded in the heat of emotion. First and foremost, take the time to go over the evidence a second time. If someone informs you of it instead of your finding out about it, purchase the suspect product, make the comparisons yourself, and be damned sure you can duplicate the results before declaring an infringement.

Once you have discovered and proven the infringement (if it isn't provable, then there is none, yes?), first and foremost contact the merchant for the suspect item. Be sure to emphasize that it is a problem, and ask them if they can either prove that it is theirs, or to modify the item so as not to include the infringing product. If they refuse or do not take positive action within 24 hours of acknowledging reciept of your message (to allow for timezone differences. Also, be sure to always use a communications channel that requires and gives acknowledgement of receipt, such as PM's, e-mail with an acknowledgement flag set, or at most drastic, certified paper mail delivery. ) If the person is on vacation, ignoring you, or is not around, or, you don't receive acknowledgment of receipt within 36 hours of sending the message, you can then take the next step...

...contact the store or brokerage selling the suspect item. Include all evidence, include all of your initial communications with the merchant selling the suspect item, ask for immediate investigation into the matter, and include a possible solution to resolve the problem. BE SURE to also inform them that you are making a formal claim of infringement at that time, and ask them if there are any forms to fill out, or further information they may want or need from you.

The rest is up to you, but it is strongly suggested that you yourself remain as calm as possible, and that you do not say anything that would be construed as an acceptance of the infringement.

Once you hear back from the store or brokerage, or the person you suspect has infringed on your item, sit back and think about the size and scope of the damage. It does not matter that you may or may not have gotten all of the profit from the suspect item, you may well be entitled to all of it. If the damage is larger than $1000 US, you can safely begin talking to a lawyer in the matter and explore your options (the $1000 dollar mark is set because that is the minimum limit in most areas before a claim can be taken out of a small claims court and into a full-sized lawsuit for damages. Check with your local laws, and the local laws of the suspect infringer, just to be sure.)

Some other things to think about: Unless you have positive evidence, DO NOT immediately begin launching into the online community and decry the merchant as an infringer. Even then, post your claim, your evidence, and then stay out of any emotional part of the resulting discussion. Stick to the facts no matter what. Do not make wild threats or gestures. Do not give any impression that you are forgiving the suspect merchant, or that you want to just forget about it, as any statements such as these can constitute a release of claim, and can possibly cause you to lose any further claim on your own copyright for that product.

(*) If someone claims you ripped them off, STOP! and think about how you will respond to the claim. If someone claims to have been infringed by your product, you should already have a wide array of defenses in place. First and foremost, make no admission of guilt in any fashion. Explain that you have not violated copyright, then explain why, sending proof as necessary to support your assertions. Immediately talk to a lawyer, no matter how much money is involved, and take his or her advice.

After doing this (and unless the lawyer says otherwise), provide the store or brokerage with everything they will need to prove that you did not violate copyright. Make a notarized copy of all relevant paper documents pertaining to the product in question, and make a mailable copy of all your electronic documents and files (for instance, burn them onto a CD-ROM.) Send all of it via overnight courier to the address the store or brokerage will give you, and make sure it is sent with delivery confirmation whenever possible. Then, e-mail or FTP them a copy of your electronic documents and files as soon as possible, to give them something to work with while the physical media is on the way. Again, if you do contact a lawyer, make sure the lawyer knows what you are doing before you do it.

If your product includes material licensed, or leased, or given to you by others, and that material is the file or part being claimed as a copyright violation, immediately notify these parties, and state as much to the store and the merchant making the claim. Then be sure to give the store/brokerage and merchant the contact information of the parties in question, and take no further part in the results unless the store/brokerage asks you to do so, and with your lawyer's permission.

Resources

Top 10 Copyright 'Urban myths'
http://www.keytlaw.com/Copyrights/top10myths.htm

Brad Templeton's 10 big myths about copyright explained
http://www.templetons.com/brad/copymyths.html

Art Resource copyright page
http://www.artres.com/coppage.htm

Collage & copyright law
http://www.funnystrange.com/copyright/myths.htm

UWSP crash copyright course
http://library.uwsp.edu/Copyright/myths.htm

US Copyright Office FAQ
http://www.copyright.gov/faq.html

Glossary of Terms (as applies to CG artwork)

Commercial use: The ability to re-sell an item, or to re-sell a product using an item you did not create as part of that product. Warning: This is almost always a conditional and restricted term, usually meaning that while you can sell artwork created from an item, you may not sell anything else that incorporates the item, in whole or in part. If the license states that the item is “not for commercial use”, then you may not sell anything that incorporates the item.

Merchant: someone or some entity that puts something up for sale.

Product: an item or collection of items placed for sale to the public or in private.

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