WHAT'S THIS ALL ABOUTThis all started when I saw a page created by ~RaikuHoshigami in which he presented the Terms of Usage which Japanese modeler Arlvit uses in the readme.txt that accompanies his model of Touhou character Sakuya Izayoi for MMD.
The original page and the discussion that lead to the writing of this journal can be viewed here:
To keep this brief, basically I found it an interesting exercise to see exactly how valid those terms really are from a purely legal sense, and by extension how valid other rules created by other MMD modelers and MMD model editors actually are. Note that I prefixed the last two groups with "MMD" and that is because this article will only discuss models made specifically for MMD (Miku Miku Dance). These restrictions and definitions are necessary for reasons that should be obvious as you read on.
MMD AS AN ART FORMMMD is a rather unique "art form" in that it grew out of the Japanese culture of "Doujinshi". More importantly for our discussion here are the following two concepts that are closely tied to MMD:
(1) MMD is an hobby that requires the use of components in projects that require the participation of many individuals. Due to the technical complexties inherent in computer animation, rarely is a project the sole work of a single individual. Probably 99.99% of all MMD related works are community projects in one manner or another. This does not necessarily mean that all participants are active contributors. Most resources for MMD projects are created by content creators who upload their contributions to popular resource download sites such as Deviant Art.
(2) MMD related works can generally be catergorized as FAN ART or derivative works because of the nature of the resources available for it. And this is where most of the problems with MMD begins.
What it comes down to is this: "How do we share these resources?"
And there is no single consensus within the MMD community as to what is and what isn't permissible to do with resources which has lead to a lot of controversy on this subject both within Japan and outside of Japan. This is because in many ways MMD is a new type of "art", perhaps one which hitherto has no precedence especially since it is an art form that is made only possible in its current manifestation because of the existence of the Internet.
MMD is also very popular, so people from all ages, backgrounds and cultures are attracted to this activity bringing along with it a multitude of belief and values systems which may not be mutually compatible. Hence, misunderstandings and outright abuses have arisen and probably will continue to happen which is why a lot of content creators, including myself, have a vested interest in protecting their works or contributions.
So the question that begs to be asked is can MMD models be protected by Law? And on closer examination the answer is "it depends" ...
CLASSES OF MODELSIt depends on what the nature of the model is, and we can break this down into several basic groups. To keep this discussion brief we will examine "character" models by way of illustration as these are probably of the greatest interest for those who read this article. Do note that by extension the same principles will apply to other types of models. Furthermore these definitions are, for most intents and purposes, my definitions only.
[CLASS 1] ORIGINAL MODELS: The subject of the model can be either a "proprietary" character or an "original" character that the modeler owns or is officially authorized to use. The model itself is an original work. An example of a model of an original proprietary character is the model of Cul by LAT ([link], which was created by the model maker for and distributed by the copyright owners of the character. A good example of an original "original" character model is Usausa created by Japanese model Kanihira ([link].
[CLASS 2] DERIVATIVE MODELS (Licensed): These are generally original models of characters that were not created by the modelers who made the models, but were allowed to do so under some form of licensing mechanism. By way of example, almost all Miku Hatsune models fall into this category. Note that the definition used here is that the model itself usually has to be an original work, it generally cannot be a conversion made from another existing model.
Picture: Kiku by Nakao - permission to use the character is covered by Crypton Future Media, Inc.'s license. The model is actually an edit but it uses original parts made by Nakao himself. This model is automatically protected by US Copyright Laws.
[CLASS 3] DERIVATIVE MODELS (Unlicensed): These are fan made original models of proprietary characters which were not officially sanctioned by the copyright owners. A good example of this is the Touhou model by Arvlit which was noted at the top of this article. Many MMD models made to represent characters from anime or games also fall into this category. Note that the definition used here is that the model itself usually has to be an original work, it generally cannot be a conversion made from another existing model.
Picture: KOS-MOS by Nameko_numeri. Franchise - Xenosaga anime. Fan Art derivative work - original model. I do not know if this model can or cannot be legally protected under copyright laws. Please see the Arvlit discussion below.
[CLASS 4] DERIVATIVE OF A DERIVATIVE OR ORIGINAL MODEL: Almost all the models available for download on DA fall into this category. These are models that are variants of existing models made to represent either different versions of the original model or a totally different character. The key characteristics of these models are that they use primarily existing models or existing model parts although the resultant model may use original textures. They are also commonly referred to as edits. There are possibly hundreds of examples of these and also note that many chibi models fall into this category. Additionally some models in this category may have originated as resources created for other products. This is a complex area which I will not go into detail here.
Picture: Kirazuki by ~Shioku-990 Original character made from parts of other models. If all parts are legal to use, this model is automatically protected under US Copyright Laws.
[CLASS 5] ILLEGAL MODELS: This category includes all models ripped from games or edited from other models without the authorization of the copyright owners.
Almost all PD (Project Diva) and DT (Dreamy Theater) models of popular Vocaloid models will fall into this category as will any edit of a Windows100% magazine model made available for distribution without the knowledge or consent of the copyright owners.
Note also that models that fail to qualify for the conditions as set in the classes may above also fall into this category.
In addition, legal models that are distributed without authorization are also in this category. Simply put, you cannot distribute other peoples' models without their consent even if you do so without changing the contents of the distribution package.
Picture: Luka cosplay as Laura Croft by ~Danthrox. Unauthorized use of a proprietary character. Model base is a rip from a game by SEGA. Laura Croft costume and weapons were ripped from another game. This model cannot be protected under US Copyright Laws.
EXACTLY WHAT RIGHTS DO A COPYRIGHT OWNER HAVE?Before proceeding further we have to examine exactly what rights are actually given to a copyright owner. They US Copyright Act essentially gives copyright owners six rights:
(1) The exclusive right to reproduce
(2) The exclusive right to prepare derivative works
(3) The exclusive right to distribute
(4) The exclusive right of public performance
(5) The exclusive right of display
(6) The exclusive right of public performance of sound recordings
It is very important to note that copyrights can be shared and delegated by the legal copyright owners.
So given that this is the case, can an unlicensed/unauthorized derivative work (or specifically what we're interested in, fan art) be protected? Well in most cases, the simple answer is "no". However, ...
WHAT CAN BE PROTECTED AND TO WHAT EXTENT?Lets go back to the categories I've listed above and see what can be protected legally.
[CLASS 1] Yes can be protected.
These are original or authorized works and are protected to the fullest extent as permitted by Law.
[CLASS 2] Yes can be protected, limitations may apply.
These are licensed works subject to the terms of the licensed under which it is covered. Most official vocaloid characters are covered under these types of licenses.
[CLASS 3] May be possible to protect.
These need to be treated on a case-by-case basis. There is a certain "gray area" in the copyright legislation and a lot of the works in this class falls into this area.
In the example of Arvlit's Touhou model, which I referenced above, the model itself is original even though the character is not. However, Touhou is "special" as the copyright owner, ZUN, has a long record of supporting or sanctioning donji works which Arvlit's model falls under. So by extenstion Arvlit's model can be regarded as "legal" to an extent as it can be argued that the work is done with "tacit consent", unless ZUN says otherwise.
The question that begs to be asked is whether the model can be protected by Copyright Laws. I cannot definitively answer this question. Part of the answer lies in whether the model can be definitively protected under Japanese Copyright Laws as I believe it probably cannot be protected by US Copyright Laws given this particular scenario. If ZUN has in writing somewhere that he permits derivative works based on his intellectual property there will be no issue. I personally do not know enough about the Touhou franchise to know exactly what the Zun's policies are.
But it's not as simple as that, and the problem lies in the fact that the model is an original work. Arvlit owns the model (specifically the model data), period, no debate there - and this gives him certain rights - it is his property and to a point he can do with it as he sees fit. All Arvlit needs to do is to say that this is a model named "Mona" (for example) rather than use the model's Touhou name and this model arguably could be automatically moved to [Class 1].
Honestly, I do not have the legal expertise to definitively answer this question. Nevertheless, the work should be treated as protected until there is a definitive answer from a legal expert; and in any case, it is always a good policy to respect the wishes of the model maker. As such, his rules apply as they do not exceed those rights that would normally be granted to a copyright holder.
[CLASS 4] Needs to be examined on a case-by-case basis.
This category affects DA MMDers the most. Each edit really needs to be examined on a case-by-case basis. If the edit uses parts which original modelers have permitted to be used, the edit is legal. If, however, the model use a single illegal part, then in all likelihood it cannot be protected. Which is one of the main reasons why myself and others have long argued against improperly ripping parts from 3D Custom Girl models and also not giving proper credit for sources.
Additionally, if you have the explicit permission of the original modeler, whether this is derived through direct contact or via a readme.txt, in most cases your edit of the model is legal and your model can be protected so long as you keep to the terms imposed by the original modeler and/or any applicable licenses.
Note also that you only own your edit and that you do not have exclusive rights. Only those rights permitted to you by extension. In general, these will be the rights to:
> Restrict distribution
> Restrict copying (of the model or parts thereof)
> Restrict modification (in whole or in part)
> Restrict usage (no violence, no porn, etc.)
Furthermore you will most likely will not have the following rights:
> Claim the the model is an original work (it is not, it is a derivative work and must be identified as such including attributing the original modeler and/or copyright owners correctly)
> Sell the model or otherwise profit financially from it (except under a license agreement with the copyright owner)
Which brings me to another pet peeve. Quit trying to sell prints of pictures of MMD models! In 99.99% of cases, these models cannot be used for commercial purposes.
[CLASS 5] Cannot be protected.
As the Law is written, works that outright infringe on the copyrighted works of others cannot be protected. The natural implication of this is that the "rules" imposed by model editors doing these types of works can be completely ignored.
Note that doesn't mean you can do whatever with the model either because your action is just compounding the problem and cannot be morally or legally justified anymore than the actions of the original violator of the work. Both parties in these instances are infringing on the lawful rights of the legal copyrignt owners.
THE CHARTSo now we can create a simple chart that can be used as a quick reference to determine if a model can be protected by Copyright Laws. Please feel free to use this as a guideline for your own reference. Do note that the chart is issued under a CC-BY-NC-ND license and that I cannot be held liable for any consequences from its use or misuse thereof.
THE CHART SHOULD ONLY BE USED TO GIVE A GUIDELINE. IT CANNOT AND SHOULD NOT BE SEEN AS BEING ABLE TO GIVE A DEFINITIVE LEGAL DECISION AS TO WHETHER A MODEL CAN BE OR CANNOT BE PROTECTED BY COPYRIGHT LAWS.
CHIBISI love chibi models, but where do these fall in under my classification scheme since most chibis are derivative works of original works? Most will fall into the [Class 4] category; but to demonstrate how the chart can be used I will classify the ones that I use the most often.
CHIBI Append Miku (Tda): [Class 2] Official derivative by the original modeler.
CHIBI Appearance Miku (petite version): [Class 4] This is my edit of Oyuugi01's edit of Mamama's appearance Miku. It's a derivative work of a derivative work, which is why I have never released it for distribution. In order to do that I will need the consent of both parties noted. Note that the act of editing the model is not illegal, but I have no rights of redistribution simply because of the route that I took in creating my version.
CHIBI Miku (Animasa): [Class 4] There are two versions of this chibi Miku in my gallery. Both are legal edits because of the way Crypton Future Media, Inc.'s license covering the use of their Vocaloids work. Do note, however, that the use of these models are totally subject to the Terms imposed by that license. Of note is I cannot, and by extension, others cannot use them commercially. Additionally, they need to be used within certain moral guidelines, in particular no porn, no excessive violence or in anyway that would reflect badly on the copyright owner.
CHIBI Gumi (petite version): [Class 4] Based on Mamama's model my edit was faithful to the stipulations under which Mamama permits the editing of his models. Please note that my edit is very similar in appearance to the CHIBI Gumi edit by ~YamiSweet. There are functional differences and of course the size of the two models are different. Both, however, are original derivative works. Incidently, ~YamiSweet's version also falls into the [Class 4] category.
CHIBI IA (petite version): [Class 4] This edit is by Kiyo derived from modeler Mqdl's original model of IA. This model is protected work as it was done within the permissions allowed for by Mqdl.
Picture: CHIBI Appearance Miku [Class 4], CHIBI Gumi [Class 4], CHIBI IA [Class 4], Telstar Stage [Class 1] - all these models can be protected under US Copyright Laws. See description in text above for details.
PERMISSIONSIf in the course of your own editing work, when you use this chart as a reference as to where your model may stand legally and encounter a concern, always consider the option of soliciting explicit permissions.
So as in the example I've given above with reference to my version of Chibi Appearance Miku (petite version), to enable me to share the model, all I need to do is to contact the original parties to seek their expressed permissions to distribute the model. I cannot assume that I have the right to do this just based off Mamama's permissions as given in his readme.txt simply because my version is derived not just from Mamama's work but from Oyuugi01's work which includes some features not included in Mamama's original model. One needs to respect the efforts made by all parties.
IF MY WORK CAN BE PROTECTED WHAT RULES CAN I WRITE OR IMPOSE?Under US Law, you cannot try to assert more rights over your work than what the Copyright Act permits. And these have already been listed above. Furthermore, Fair Use guidelines may apply when someone uses your work without your expressed permission or knowledge. In case it is not obvious, Fair Use legally curtails some of your rights.
In general, you have a right to be credited if someone uses your work. Work that are covered under some licenses also mandate that credit be given. So for example all works covered under a Creative Commons license requires attribution to the original copyright owner. Failure to do this immediately revokes the license and your rights to use that work.
You also have the right to restrict the work from being used commercially, especially if your work is a derivative work you should state clearly that this is prohibited.
You also have some say on who may or may not redistribute your work as well as if you allow editing. BE VERY CAREFUL with allowing editing if your work is a derivative work as it is very possible that you don't have the right to allow editing even though you may have the right to prohibit editing. Think this through and I think you'll see that this actually makes perfect sense. Which is why I do a /facepalm whenever I see something like this (and note I just picked the following examples by clicking on the "Browse more like this" panel at random so I'm not picking on anyone deliberately):
edit all you want
OK ... I will be very generous here and will assume that it was ok to convert this model in the first place. If this is a legal conversion, it will be in [Class 4]. Be very careful with conversions. In most instances, you will have no rights or very limited rights over the work even if the copyright owner permits conversions. This is because with most converted works, no substantial work was needed in making the conversion.
Anyway, let's look at the "terms":
credit me ... ok but do note that the original copyright owner isn't even mentioned anywhere which already can be construed as an infringement of copyright in some jurisdictions.
link back ... no harm here, but can actually be ignored as this is not a legally enforceable requirement
edit all you want ... NO ABSOLUTELY NOT; this person does not have the right to pass on this permission. This can only be done by the original copyright owner especially since the model comes from a commercial source.
The proper way of doing this can be seen in this example:
This example shows how a responsible model editor takes pain to properly annotate and credit their work. Seriously we "need more like this". On the chart this would be a [Class 4] with proper permissions. This allows (specific to this example) the model editor to pass on the right to create other derivative works directly off their work.
But what if you find a term that lies outside what is normally permitted by Copyright Laws? I'll use as an illustration the problems that could be associated with this by using as an example Montecore's usual stipulation on the use of his Luka model. He states that if the model is to be used in a portrayal of a relationship the model can only be shown in a lesbian relationship. (Please note that this is not a critism of Montecore, merely an examination of this particular stipulation that was included in his Term of Usage for this model).
First off, this could be interpreted as a breach of one of the Terms in the license agreement issued by Luka's copyright owners. Since, they do not seem to have said anything on the subject we cannot ascertain exactly what their actual stance is on this point. However, in some legal jusrisdictions, this stipulation could actually be judged as "immoral" and hence, illegal and by implication, the model itself could be "illegal" unless the stipulation is removed.
ARE USERS BOUND BY YOUR RULES?If your model is eligible for copyright protection then yes - in fact, a simple copyright notice will suffice (eg. (c) John Doe 2013). Oh BTW - be careful with the phrase "ALL RIGHTS RESERVED" - don't use it unless you actually have all the rights.
If you want to reinforce the "rules" you can do so in the readme.txt which you should ALWAYS include in your distribution package. This document is important as it is the one of the only proofs that the model is yours. It should clearly identify you as the originator of the model if it is an original work or as the editor in the case of a derivative work. You can use your real name or a REGISTERED screen name such as your DeviantID or one that you regularly use on one of the social networks. The document should also include a date.
If your model is a derivative work, it is usually a good idea, or at least good manners to include the ORIGINAL readme.txt.
If you have rules that are outside of those normally allowed for by existing copyright legislation, then you need to consider other methods to enforce your rules. You cannot rely on a readme.txt to relay your Terms as it can be interpreted as a "contract of adhesion" - in other words a one-sided contract. In some US Jusrisdictions these are unenforceable. The concept here is that the end-user must agree to the terms before using the model and they cannot agree if they cannot see the terms before hand. So you can either put the rules on your model download page or use a distribution package that includes a "I ACCEPT" button. Another method is to put the readme.txt on the main level of your distribution package and the model files in a subfolder. The logic here is that they have the option of reading the documentation before choosing to install the model.
SO WHAT CAN I DO IF SOMEONE VIOLATES MY RULES?Contrary to what most people may think, even freeware models are protected by copyrights subject of course to what we discussed above. If someone breaks your rules or otherwise infringes on your copyrights, you do have other recourses other than sueing them.
Your first step is to contact them and ask them to rectify the situation. if they refuse to comply or comply in a timely manner, simply file a DMCA Take Down Order against them which you are entitled to do if you are the copyright owner of the work under dispute. If you aren't the copyright owner tough, you're up the creek.
The DMCA Take Down Order process is free. It is basically a letter and there are many sites on the Internet that teaches you how to go around creating one. DA will only act against an infringement if issued with a valid DMCA Take Down Order. Other sites may have other policies but work along a similar principle (they have to by Law). Issuing a DMCA without authorization or falsely representing yourself as the legal copyright owner has severe legal conseqences so don't even think of using this method as a joke.
If you are a minor, please consult with a legal professional before taking these steps. I am not sure if minors are permitted to issue DMCA Take Down Orders even though minors can be legal copyright owners.
CONCLUSIONSI hope you have found this article useful. This topic is in reality very complex even for legal experts. In creating the chart I am hoping to increase awareness that we all need to be aware that we are working with in most instances copyright protected works and that it will encourage MMDers to be more respectful of the works that have been so generously made available for us to use and to reinforce the need to respect the wishes of original model makers as well as those who create legal derivative works from them.
Please feel free to comment and point out any errors that I have made. Do, however, refrain from asking me how legal a specific model is, the chart should be able to answer your question, and in any case, I am not a legal expert and have no qualification that would enable to make a definitive judgement on the legalities of other peoples' work.
Incidently, this is why I do not support Japanese modelers that include readme.txt that reads along the lines of "If you don't understand Japanese ...". Plenty of choices out there without having to deal with xenophobic or racist crap like that.
Ultimately, if you want other people to respect your work, you have to start off by respecting other people and other peoples work. Especially in a diverse multi-national, cross-culture environment like MMD.
CREDITS~RaikuHoshigami for suggesting that I write this article
Wikipedia - various articles on copyright, derivative work, fan art and doujinshi culture
Columbia University Copyright Advisory Office
US Copyright Office website
DISCLAIMER:The views presented here are my own and I am making no representation that anything written here should be construed to be Legal Advice. I am not a lawyer and cannot give Legal Advice. Furthermore, anything presented here may be subject to correction from a qualified expert in Law.
Note also the discussion on the Law is presented only from the perspective of US Law simply because that is the jurisdiction in which I reside. Therefore, please treat the information presented here as being for discussion purposes only and the views presented are mine alone which are worth for all intents and purposes 2 cents.