I am writing this article to try and dispel some of the misconceptions about the Law as it applies to specifically MMD. Let me state categorically, that I am not a lawyer. In addition, please regard what I write here only as a basic guideline which points may or not be absolutely correct in the legal sense and are subject to correction by people with proper training in the areas which are discussed here. Specifically, do not treat this article as necessarily sound ‘Legal Advice’, rather it should be taken merely as a “Document for Discussion”. References to some of the points here written by real experts are noted in the links at the end of this article should you wish to pursue more knowledge.
Additionally, what is written here is based on legal practices, as I understand them, as applicable only under US Law; which may or may not have jurisdiction in the part of the world you come from. That said, deviantart.com is operated by a US based company and is subject to the Laws of the United States and that does impact you as well if you have an account here or post your works here. If you are not sure what your legal obligations are, please review DA’s Terms of Usage for their website which you can easily access using the button DA provided on the top left of this web page, but for your convenience I have posted a link to that page for you below.
Under US Law, any created art work is automatically protected by US Copyright Laws (certain conditions may be applicable to works done before a certain date). You do not have to register the work for it to be protected and the work maybe covered even if it is unpublished. This means if you create a piece of ‘art’, that work is protected, provided that in itself that work does not breach the Law (or an existing Copyright). Only actual works can be copyright protected, and generally not ideas. Ideas, where applicable, are protected by Patent Laws which is a totally different subject and is not discussed here.
This means that even before you publish a piece of work on DA, that work might already be protected. Now, I know many of you have probably not read the conditions under which you have agreed to with DA when you posted your work, but do understand the moment you sign up for an account here, you’ve entered into a contract with DA. DA takes great pains to emphasize that you must have full rights over your work, or if not, at least authorized permission, before you publish that work to your gallery. In case you need to take a refresher on DA’s policies on works posted to this site, the links are noted at the bottom.
OUR PROBLEM AS MMDers
MMD is a hobby, that by its very nature is very Community orientated due to its technical complexities. Which means that with extremely rare exceptions, almost any work in MMD uses parts of other people’s work. I am going to make a very basic case to illustrate this. Take this picture of Miku Hatsune below as an example. She’s standing there on a stage, one of mine, against a skydome created by someone else and uses MME effects by various parties. Let’s try to break this down to see who actually owns what.
The stage is my own original work. It is copyright protected and issued here for use on DA using a Creative Commons License (which I will cover in detail later). It’s a popular model, but one that has been subject to an incredible amount of copyright infringements by MMDers. I bet you did not know that either.
The skydome is by kaahgome.deviantart.com. She openly acknowledges that she is not the originator of the pictures used in her skydomes; merely that she applied those pictures to the skydomes. So, honestly, I am not sure how legal they are to use as I do not categorically know the original sources of those pictures, and therefore, I have no clue as to their copyright status. I am merely making the assumption that they’re legal to use. (Note, however, that the Law may see it differently). Additionally, when using one of her domes, I’m actually using a derivative work of another work – see how complicated it gets?
The MME effects used are fairly clear cut. The copyrights belong to the original authors of the effects operating under certain licenses pertaining to the software and codes involved. This latter raises an important point. Code as in programming code or of specific interests to us as MMDers, motion data code, is copyright protected works. However, in general, you can safely use motion data from an authorized source, for MMD, and to a degree even modify it. However, under no circumstances, except by written consent, can you redistribute the code, modified or not.
So at the end of the day, I own the copyright to the picture shown here (and the stage) – nothing more. It is a ‘derivative’ work as I’ve used contents by others. Rights to their portion of the work still belong to them. I am using their work by ‘implicit consent’ – this means to say, that it is understood that I am using their work legally within mine for and under the ‘usual’ expectations for a work of this type. Let me clarify that last bit by once again using the Miku model as an example. The use of the Miku model, since it is licensed for use within MMD, allows the use of that model in conjunction with functions normally associated with the MMD software – specifically to make animated videos or still screen captures (screenshots) – and nothing more. In using any portion of other people’s work, my work may be subject to any conditions imposed by their work, which may in turn be subject to other legal constraints. As you can see, it can really get incredibly complicated legally.
OMG, this is one area which has seen abuse by MMDers more than perhaps any other (with the possible exception of outright theft of other people’s model parts). You’ve all must have seen this on YouTube. Someone posts an MMD video on YouTube, does not list his/her sources and then slaps a plead for Fair Use in the description and think they’re operating within the Law. Sorry, WRONG as in absolutely totally 100% WRONG.
The concept of Fair Use was created under US Laws to clarify what may or may not be done with copyrighted works – it overwrites legally some of the rights of the copyright owner. It’s actually incredibly complicated and it’s extremely easy to misunderstand. First off, Fair Use is only applicable to US Copyrights. So if you used something originating from Japan, it probably does not apply. Generally, US Courts when reviewing a case to ascertain whether or not a work is being correctly used under Fair Use guidelines will test the work against four legal arguments and these are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
If you want the full explanation of the points above please visit the link provided below. All I’m going to do is to point out some common misconceptions that MMDers usually have.
With regards to (1.) above, no problem with the commercial nature (except for those who are trying to sell MMD related prints on DA). ‘Nonprofit educational’ is the main culprit. Just because you’re a student (or teacher); does not automatically means that your work falls into this category. Very simple illustration: if you use MMD as a part of a school AUTHORIZED activity or project, you’re probably ok. If you just make a MMD video and post this to YouTube, you most likely cannot make this argument. Neither can you claim that you’re using the material for the purposes of review or discussion if in actuality all you’ve done is to make a music video.
I am not going to discuss (2.) as that’s going to take a couple of pages. Just bear in mind what I said about the nature of MMD above – a single MMD work is generally an aggregate of works from various sources most of which, if not all, is copyright protected.
(3.) is going to impact you the most, unless you’ve created an MMD model totally from scratch, created all the scenery used, the effects used and made your own music and motion. We all know that unless you’re exceptionally gifted, that’s not going to happen. So you’re going to be using copyrighted works in your pictures or videos. There are ways to do this legally –the most important of which is to acknowledge the portion of the work that uses the work by others and to give them due credit. ie. To specifically state, to the best of your ability, what you’ve used and the sources of the works that are not yours. This does not need to be overly complicated. If you need to see an example, see the Credit notation at the bottom of this article.
Do note that if you use a copyrighted work, ‘lock stock and barrel’, you’re using the whole thing and not just a portion. Also, not all works are equal. Some short works, even if you only make use of a portion of it can be construed as a ‘substantial part’.
(4.) Hmmmm … this one is actually very tricky. It needs to be determined on a case by case basis and if pressed will probably need to be resolved by a Legal Expert such as a judge. That said, if the model is used for something illegal, such as child porn, you’re up the creek in more ways than you may think.
THE CREATIVE COMMONS LICENSES
I use this for all of my MMD related works. Why? Because I want to be a contributing member of the MMD community and make it easy for people to use my stuff and yet still have my works protected because my works (and probably yours) are not in the PUBLIC DOMAIN. Works in the Public Domain you can basically do whatever you want with it. Oh, BTW, you cannot in most cases, put your MMD work into the Public Domain, simply because in all likelihood you don’t have full rights over the work, especially the underlying technologies. You cannot surrender other people’s rights into the Public Domain. If you did, you’re in a lot of trouble.
My model work, like all other work on offer as downloads on DA are offered as FREEWARE – this DOES NOT mean that the works are in the PUBLIC DOMAIN, or you can do with them willy-nilly. They are copyright protected works which you can obtain and use SUBJECT TO THE LICENSE UNDER WHICH THE WORK IS ISSUED.
DA has basically two types of licensed work. Most people probably use the standard license (the default) as they’re too lazy to figure out what it is. So here’s a brief explanation, once again for details please visit the links provided. DA’s standard license is basically that US Copyright Laws protects the work. In a nutshell, the creator of the work has full rights over the work as permissible by Law. This has significant implications if you use their work. Which is why I use a CREATIVE COMMONS LICENSE; because, seriously, I’m a nice guy and you will see why below.
The CREATIVE COMMONS LICENSE that I use specifically reads: “Some rights reserved. This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.”
(Please note that I’m just using my case by way of illustrating my arguments here and nothing more).
When I first started making models for MMD to share, I looked very carefully into the legalities of what I was doing. The Creative Commons License was in my opinion the best option as it protects my work as well as clearly defining your rights when using them. I wanted people to be comfortable with using these models without having to fuss too much about the legalities. This is one of the primary reasons for the existence of the Creative Commons licensing system.
There are three parts to that license that I use and please note there are other combinations. The parts are:
NO DERIVATIVE WORKS
(And once again, please note that I’m just using my case by way of illustrating my arguments here and nothing more).
OK , this is where I can actually sue a lot of people who’ve used my work on YouTube. Why? Because, they did not give my work proper Attribution. Specifically, they have not noted anywhere that my work was incorporated in their video. If I was a bastard, which generally I am not, I could file a complaint to YouTube for INFRINGEMENT OF COPYRIGHT. In other words, if you use a work covered by a CC License, you MUST acknowledge the source. ie. Give Credit – it’s not a courtesy, it’s mandatory. Note also that all Creative Commons Licenses must have this clause. This license cannot function without this clause. It can be used alone or with the other clauses which primarily serve to add additional levels of restrictions (or clarification on the permissible use of the works).
I raise the last point as it is very important to understand when reviewing a work covered by the CC License to see exactly what is allowed – they are not all equal.
Now, why am I a nice guy? Because if my work was just covered by the usual provisions as provided by US Copyright Law, not only do you have to give me credit, but you might even need my WRITTEN PERMISSION every time you want to use the model publically – oh how convenient this would be right? Now do you see why the Creative Commons Licenses are so nice? You can download one of my stages, use it in your own pictures or videos and not have to contact me for Permissions; all you need to do is acknowledge the source of the work per the license guidelines and get on with your life. Funny why some MMDers have a hard time doing that isn’t it?
Under the terms of this part of the license, you can even redistribute the entire stage provided that you do so within the context of the license. Does that mean that you can download one of my stages and offer it as a download from your library? Actually, yes you can if you strictly follow the conditions as laid down under the license. Personally, I would take a dim view of someone who did that, as the reason why I am using the Creative Commons license is to make it easy for people to use my work and share them directly with their friends without worrying too much about copyright infringements. The intent was never to increase someone’s DA or website page views; that said, within the terms of the CC License Attribution clause, redistribution is permissible.
Pay special attention to any restrictions on use. Japanese modeler Montecore for example, specifically states that his Luka Megurine model may only be used in a lesbian context if shown in a relationship and cannot be used in scenarios portraying a heterosexual relationship. Agree with this or not, but it’s a valid legal constraint if you should choose to use his model. If you don’t agree, don’t use it. You have no options here.
Also, all Miku Hatsune models, regardless of source, are subject to Crypton Future Media, Inc. restrictions on the use of her image. The most important of these covers usage of her image commercially. Even Japanese modeler TDA fell a foul of these restriction when he thought to make a version of TDA Miku available only as a pay-ware model. If you go to Crypton Future Media, Inc.’s web site, they have published a document detailing what can and cannot be done with Miku (and other Vocaloids that they own). It is written in Japanese, but Google Translate does make a reasonably clear translation. (Warning, it is not light reading).
I’m not making any money from this so why should you? Nuff said. Do note that there are some controversy as to what can be defined as ‘commercial use’.
NO DERIVATIVE WORKS:
Honestly, in my case, I’ve included this to protect my work from being butchered in the manner which a lot of work is by MMDers.
Please note that other modelers may not share my opinions and furthermore, when you use stages ripped from games - well actually that’s just outright illegal in most cases. Stages converted from the Google Sketch Up library are also very iffy. In most cases these can probably be defined as plagiarized works (but a case can probably also be made that these conversions are outright thefts).
My advice is that you probably should not download an MMD conversion made from the Google Sketch Up’s library that lacks proper authorization or credit of source (including especially a reference to the original creator). If you want to use it, get it from Google Sketch Up directly, convert it yourself (or have a friend do it), use in your work only (and give full attribution) and absolutely do not redistribute. Each of these models are listed in the Sketch Up Library together with contact info for the creator, so if in doubt contact them and get written permission first. This really is not hard to do.
A lot of people will hate me for this, but I’m going to say this again. These are very iffy to use. Do not assume that 3DCG’s owners have given blanket permission for MMDers to do whatever with their models (specifically, they have not). I am not the only one saying this, some MMD groups here on DA and other groups on the Internet have advisories against this practice and here is, for example, what mikumikudance.wikia.com/wiki/M…
says: “Model redistribution and modification is allowed with exception of purchased models and custom models.”
What this means is:
(1). You cannot modify and redistribute 3DCG models made for sale or as “custom models”. Period, no argument here.
(2). Which leaves the models made by fans. Once again, under US Law, their work is (automatically) copyright protected unless stated otherwise in writing. If you rip their work without proper permission or authorization, at best it is plagiarism, at worse it is outright piracy.
What this all means is that the phrase “Model redistribution and modification is allowed with …”, used in this context may actually be a lot more limited in scope as to what is permissible than what most people may think. NEVER ASSUME you have any rights to use any work unless it is clearly written that it is ok to mess with a particular model.
One more point. If you obtained a copy of 3DCG’s software illegally, such as from a torrent download site, this automatically nullifies any defense you may care to make to defend your use of any 3DCG model or its parts. Pirated software is illegal; period. End of argument.
If you “innocently” download one of these parts from one of the DA MMD Group libraries and use them on an edit you’re working on, honestly, you do so at your own risk.
The MMD Sketch Up Converter and TSO2PMD software makes it possible for models made in a different format, for a different purpose, to be usable in MMD. They are not intended for use as tools to support wholesale software piracy or otherwise breach the protection on Copyright protected works.
ILLEGAL EDITS (?)
I’ve seen this term thrown around a lot. There’s no clear definition of what constitutes an illegal MMD edit. I have always made a case, that there is no such thing as an “illegal edit”. That said I am not a Legal Expert, it is just my POV.
My argument is as follows: Under the US Constitution, Citizens of the United States have the First Amendment Right to Freedom of Speech. I believe a case can be made that if someone edits a MMD model and make it into, for the sake of argument, their OC they are completely free to do this and are protected under the First Amendment and perhaps also by certain Privacy Laws. In making that OC, someone else’s copyrights might have been violated, however, SO LONG AS THE MODEL remains strictly PRIVATE; specifically, it is for personal use and enjoyment and NEVER redistributed, it is ok to do – probably(?)
There are definitely exceptions.
If you are then stupid enough to make that edited model available for download, that actions is totally illegal in the strict sense of that term (although the act of initial act of editing it is not – it’s hard to wrap your head around that, but it does actually make sense). I think even the publishers of Window 100% pay-ware models recognize this conundrum as, if I understand it correctly, they permit editing of their models so long as you’ve paid for them and do not redistribute them or parts thereof.
A SAFER WAY TO PROCEED?
Deviant GM34 likes to make MMD videos. He’s actually very good at them and he has an interesting ‘spin’ on how he does it and it does pay to take some lessons from his practices. He’s not a lawyer, nor does he claim any expertise in the Law especially as it pertains to MMD. However, he’s taken steps to protect the rights of others and in that process, himself. It’s worth examining his methods. Once again, this is not Legal Advice, just what one person does.
In pursuing his interests in making MMD videos he has a unique approach. He’s created a stable cast of characters for his videos. In effect these characters are OC (Original Characters) that he’s created and he has given each character a personality trait and background. The Copyrights to these characters are clearly his. He then makes models of each of them as can be seen in the screenshot below (and note that I have his written consent to use the image). The original image is here: Ponytail Express_Update 912
So here are the 12 girls of GM34’s Pony Tail Express (PTX). They have all been edited to become uniform members of the same troupe. Two are instantly recognizable; RiSama’s edit of Akita Neru (as I understand it, she was edited with permission), and Kakomiki’s Haruka used here within the outlines permitted by Kakomiki (edit privately ok; redistribution, no). The other girls are ‘cobbled together’ from a variety of sources. However, none of these models are available for download. They are STRICTLY private and for show only in the context of his MMD related videos and related works. They are NEVER used to promote porn or violence and serve only as ‘performers’ within his private projects. People have asked him for copies of some of the models and the answer has always been a firm but polite NO for reasons that should be easy for all to understand except perhaps for those who are oblivious.
As background material, he uses (a lot of) my stages, but also those from other models makers. He adapts almost every motion he uses to specifically suit the video he’s working on, hardly if ever do these remain unaltered, but he never makes his data available as these are based on the work of others. Furthermore, he always, always, always credits his sources to the best of his abilities.
All these are sound practices that we can all learn from, which leads nicely to the summary of this article.
HOW TO PROTECT YOUR BUTT
The following is NOT LEGAL ADVICE, just good practices. I am not a lawyer and cannot give Legal Advice.
(1). ALWAYS, ALWAYS, ALWAYS CREDIT THE SOURCE if you use a work in your own work that you did not personally create. Even if you do not know the source, you do need to protect yourself by acknowledging that part of your work is not something you created yourself.
(2). If in doubt, seek permission. NEVER GUESS OR ASSUME THAT YOU HAVE ANY RIGHTS when using other people’s work. If you want to do something with a model, and you’re unsure, contact the model maker. Almost always there is some way to identify and contact the original model maker (or the person that made an authorized edit).
(3). Be aware of the terms under which a model is issued. Is it covered by standard copyright protections or is it issued under a CC license? DON’T GUESS, find out. The information is there, either on the model download page or most likely inside the README.TXT. Yeah, it’s that simple, READ THE README.TXT. Even if it’s in Japanese; use Google Translate if you have to. Ignorance of a foreign language is no excuse if you’re ever taken to Court.
If there is no copyright information available, assume that it is copyright protected and treat the work accordingly.
Please take COPYRIGHT LAWS seriously; as they do apply to you. Breaching someone else’s Copyrights can lead not only to lawsuits for civil damages, but can also lead to criminal charges, substantial fines and jail time. The Internet is not the final frontier where no laws apply; they do. These will be either the Laws applicable to the jurisdiction under which you live; or in some cases they may also be include provisions provided for under International Law or by International Treaties.
Note also that I believe that it can be generally said, that if you follow the guidelines as set down by Deviantart on how to use this website, you will be operating on safe legal grounds as they have taken great care to make sure that you can have a fun and fulfilling time pursuing your activities here in a Lawful manner.
Thanks for reading. I hope that this article serves some useful purpose and have a legally safe and fun time MMDing.
Miku model – Animasa (default)
Nagisa City - Skyblue
Sign/Pose – my work
MME – rule of thirds / serious shader
Rendered in MMD 7.39
Miku model – Animasa (default)
Stage/pose – my work
Skydome – kaahgome.deviantart.com
MME – object luminous / adult shader
Rendered in MMD 7.39
GM34’s PTX image used with permission
Fair Use conditions text in article quoted verbatim from wikipedia.com
DA Terms of Service
DA Submission Policy
DA Copyright Policy
Terms of Service - Google Sketch Up
Creative Commons Licenses
A Note about Copyright and Crediting
(Many thanks to deviant MissingPixieSticks for link)