Mod Developers & Copyright

You're grievously misquoting fair use. The ship cannot seem to be in anyway similar if the original ship was used as the base. If B simply liked the placement of the space, they're free to use that without fear. However in order to invoke fair use if they took the ship design directly, it must be modified to a point that it can no longer be identified as the original work, that is the point fair use comes into play.

Edit: To make it easier to understand:

Lets say I make something, I draw a stick figure (I know this wouldn't really make a real case, it's just an example). You look at my stick figure, and you like the idea of a stick figure so you draw your own. That would be fair use.

Now lets say you then copy my stick figure then change a few things, however people can still it's still my stick figure, that is NOT fair use.

Now lets say you took my stick figure, used it to make your own stick figure, sure you used my stick figure as a "blue print", but you replaced every part of it, the head, body, arm, legs. Despite you having started with my stick figure, you've made it completely unrecognizable from my original starting stick figure. This is where it becomes fair use.

Derivative work, just as an FYI can be seen as an extremely dirty word when it comes to intellectual property, the term derivative CAN actually get you in fairly large amounts of trouble where as Transformative or Parody can liberate you from such.

 

"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."

I understand what derivative work is. You are twisting my words. In my example, B takes the original ship design, changes the internal layout, and changes the external layout as well to better fit the rest of his original designs. In this example, B is changing the underlying work to match his personality. That is considered derivative work. Again, I point to L.H.O.O.Q. as one of the best examples of derivative work.

Also, "derivative work" being a dirty word is your own feelings. Most people who would like to propagate such feelings have done so in the past for alliterative reasons, such as record labels. Derivative work covers transformatives, since those are considered to fall under the same law as derivative work. I would not use Parody since it does not grant the same freedoms and legal rights that derivative works do.

I cannot control if people choose to see a thing as "taboo", but for their own rights to be equally recognized for original works, they need to recognize the legal rights for derivative work. This is where the attitude starts that I noted in my last post, ignoring a person's right to make a derivative work because they think the word is "extremely dirty".

 

I did not twist your words, I responded to the best of my ability with the information you provided me. This is why I left examples. I apologize if I misunderstood what you intended. To quote you on the information provided:

This would imply that changes were made, to suit B's personal flavor, this did not imply that it was changed so drastically it no longer recognized as A's work. If A took B to court and they could recognize portions via direct comparison B could be in some amount of trouble.

Also referring to L.H.O.O.Q, this may be yes one of the most famous pieces of derivative work, but it's not the embodiment of understanding the legalities of derivative work. Just to point it out, this has been addressed in classes and the professor has made it know that something like L.H.O.O.Q WILL NOT FLY under modern intellectual ownership climate, famous as it may be. You can mention it all you want, but it doesn't change that the laws from then and now have changed. Failing that, the Mona Lisa was also in public domain. Making derivative work of something in the public domain is NOT illegal.

 

The only policy I ascribe to is, and always will be: Ask for permission, Respect the creators wishes, and don't be an asshole about it. Simple as that. It is the policy that has governed the Elder Scrolls community for almost a decade.

 

"makes multiple changes to this work so that it matches the rest of the ship designs in his mod, making this transformed work bear his personal personality on what has become a derivative work."

In that example, B is transforming the underlying work, he is making a reproduction in his style, this would be considered derivative work. What you seem to be arguing is what is considered to be "sufficient" changes from the underlying work. However, the degree to what is considered "sufficient" is left to individual cases in court as leaving this choice to the creator of the underlying work would completely dismantle derivative work. In most cases, the argument of what is a "sufficient" difference between works only matters if the derivative work is being attempted to be copyrighted, if the derivative work is not seeking to be protected under copyright, then the range of what is considered sufficient in courts is typically a lot broader.

At the same time, what if the creator is an asshole? Some people have a "Do not ask for permission, I do not give permission" policy and that is why there are laws that will protect the creative rights from those who would wish to step on them with their own. Asking for permission is typically not enforced by law, it is a moral choice held by people who partake in a certain set of morals. While yes it is polite to ask for permission, what do you do when someone refuses the request? What happens if the mod author decides to decline your request based on a bias decision? Do you let your own protected rights be trampled on? These are things that you have to consider when you make your work public. Yes you are entitled to certain rights and protections, but so are others.



Honestly, if we are really going down this rabbit hole, licensing mods under Creative Commons (BY-SA or BY-NC-SA) is probably the most healthy decision for a modding community. Mod authors of underlying work still retain copyright and control of their work and those seeking to use underlying work are protected from copyright infringement while still being required to give proper credit to the original author as well as other stipulations as dictated by the CC license.

 

It's not seeking protection under copyright exclusively, this also includes if the derivative work is intended to be distributed commercially or otherwise. Remember the term "Derivative" can also be used as a legal bad word to implicate. I would highly suggest you actually research the ins and outs of what is or is not infringing on copyright. Legalzoom explains it pretty well for the layman (Sorry if you're from legalzoom and reading this) I would still suggest if you contact a different legal consul if you feel you may have infringed on copyright.

It's not a perfect solution, but it is a very decent way to allow people to use your work and still having control of your own work. Many times CC licenses can be used to seek out partners as you still have near full control of your work. Though this is still 100% the decision of the property owner.

 

Respect the creator's wishes. If someone doesn't want you to modify and redistribute their creations, then respect their wishes and move on. The same thing applies if you ask permission from a big company, so why does it not apply to an individual?

 

Because entitlement issues. Have you noticed how much harsher people are to indie devs VS large companies? It's the feeling of control they get.

 

There is nothing wrong with wanting to control your creations and where they are used.

Think if you built a cool car and everyone wanted to take it and modify it and started selling it without even having the decency to ask you. Its just plane wrong, both morally and legally.

 

I was talking about people thinking they have more control over the development team because they're closer to being peers than a large company. Thus they believe they have more entitlement.