Free art and copyright conflicts

Free art and copyright conflicts

In 2000, I was a much more naive person when it came to both free software and the legal environment in which it exists. To be fair, I suppose I was far from alone.

At that time, the idea of applying free licensing to artwork was pretty new (the Creative Commons hadn’t really built up much steam, even if they did exist, which they probably did, but I can’t remember). There were a lot of theories about the reasons why it was hard to motivate artists to use free licensing, perhaps because an awful lot of people were still fuzzy about why programmers did it.

However, there was definitely an opinion that artists just weren’t having with any of this free licensing stuff. For example, I was told that free software graphic adventure games were missing largely because artists simply wouldn’t contribute to a free software game project.

I didn’t buy it then, and I still don’t—and now I have quite a bit of evidence to back up the point.

Unfortunately, this isn’t sufficient to get me out of the woods, as I will explain.

But, back to 2000...

In order to disprove this preposterous idea that artists wouldn’t contribute to a free project, I decided to start a project at Sourceforge to develop a game, starting with the artwork. That became “The Light Princess”, and I found that, indeed, I could find artists to contribute, but I had to work at it. Instead of idly posting a help-wanted through Sourceforge that would be seen only by programmers (like that would help, duh!), I went to places where I knew I would find artists.

First of all, I asked my wife about good, public domain source material for a game. It turns out that she was particularly fond of George MacDonald, and this story in particular (The Light Princess). And of course, due to being written way back in the 19th century before copyright nazism had time to take root, the work had expired into the public domain, which is why, for example, you can find a printed copy from Dover Books, which makes a living out of reprinting copyright-expired books. In fact, they have a very nice, illustrated collection of many of GMD’s books.

Then I set out to find artistic contributors. I knew that SF and Anime fan communities had long traditions of amateur and/or semi-pro “fan artists”, who often went on to do more original work, when they got tired of retreading other people’s characters. Some of these people are amazingly talented. But would they contribute to a free-licensed project? That was the experiment. Because, instead of trying to sell free-licensers on doing art, I was trying to sell artists on free-licensing.

I found anime fan art websites by individual artists, looked at online galleries, and even found a French bulletin board dedicated mostly to artists with an interest in the manga/anime style. You’ll notice I didn’t bother much with Japanese anime art websites—there’s a good reason for that: Japanese amateur manga artists have an ice cube’s chance in a very hot place of landing a professional job as a manga artist. People in the US and France on the other hand, are very unlikely to be able to overcome their geographical and ethnographical challenges. That means that they are much more likely to try alternative channels to success, which is what free art is.

I didn’t spend as much time on it, but I also hunted down free-licensed musicians. Curiously, the idea of free-licensing musical content, at least for verbatim recording, seems to have penetrated much deeper. After all, there’s a long tradition of illegal but semi-officially sanctioned “bootleg” recordings and I think I’ll leave you to investigate the sticky issue of “internet music file sharing” on your own, as I’m sure you won’t have heard a thing about that, right?

But, I’m not really talking about those folks. I’m talking about the guys who actually, for whatever reason, go ahead and use a genuine FSF-Debian-OSI-approved FREE license on their works. Yes, the real thing. These exist too, and in somewhat larger numbers than for graphic artists.

I became attracted to the writings of a particular musician/programmer/free-licensing advocate named Michael Stutz, who, wrote a license he called the “Design Science License” to address what he thought were failings of applying a license written with software in mind, like the Gnu General Public License to artistic works.

Dang that was a mistake. I bet on the wrong horse. Not that there’s anything actually wrong with the DSL, but it was a lot like buying a “BetaMax” VCR back in the 1980s. Once VHS took over, you just couldn’t keep using it. Standards matter.

And that happens in the free software community because legal language doesn’t allow us to completely express what we mean. Ask any sane artist, who gives you something under a GPL, DSL, or Creative Commons BY-SA license, whether they really care if you re-release it under one of the others in that set, and (assuming they understand what you’re asking) they’ll almost always say “sure, what’s the difference”. Because, indeed, all of those licenses have almost exactly the same intent—they allow the same basic freedoms and require the same basic restrictions.

They’re also legally incompatible. You must ask permission to switch from one to the other, because the nature of the copyleft—that fantastic legal hack we owe to Richard Stallman—relies on requiring that the same license be used on all derivative works. Not a license with the same intent, the same license!

But, you ask: “If the intent is the same, why do you need to change it? What are you really trying to do, you evil license switcher!?”. Well, okay, some people may be up to dark deeds with this kind of talk, but I’m talking about the situation where you want to combine a bunch of free-licensed material into a creative work with a free-license.

Intuitively, you’d expect that to be easy, but the law is frequently counter-intuitive. The trouble is, if the soundtrack is BY-SA, the artwork is DSL, and the computer programming is GPL, what license can I release the whole under?

Answer: you can’t release the whole. Period.

Somebody has to give you explicit permission to change the license, or you are just plain out of luck.

To make matters worse, I have to explain this to a not-really-interested artist, who just doesn’t want to be bothered by all these nasty details. I would say “who is also a teenager”, except that they aren’t now, this is five years later! Oh yeah, I also have to explain it in a foreign language that I took in school, but never really got all that good at. Je parle tres mauvais francais, and I can’t even figure out how to type the stupid accent marks.

Did I mention yet that I bet on the wrong horse? Yep. The DSL is dead. That is an ex-parrot. Totally disavowed. The Free Software Foundation is the only place you can find a copy, with a cute little disclaimer warning you that “this license is not endorsed by the Free Software Foundation”. Michael Stutz’s webpage which formerly promoted the benefits of the DSL now promotes the benefits of his new book on Linux. More power to him, but where does this leave me?

O-kay. So which license won? Well, the Creative Commons has been very successful in the field of art and music, and of course, the GPL is still with us. The GPL is to free licenses what Unix is to operating systems. It will never die, no matter how decrepit it gets. Having just been burned by the DSL experience, I remained ancy about trusting the durability of the CC By-SA license, so I decided that the GPL made more sense. However, I discussed this with some of the people who are still interested in the project. (After five years! I am amazed, and deeply gratified that there are still any such people. Thanks guys!) And I got persuaded that it might be cooler to dual-license the game, under both GPL and By-SA, thus covering even more territory, and allowing for somewhat simpler accounting for the artistic content (the By-SA is much more economical in the notices it requires, due to the realities of distributing single-file data like song recordings and JPGs that don’t allow for so much meta data—by including an “okay to convert to GPL” clause, dual licensing is achieved and everything is peachy).

Except of course for all that concept art that is licensed under the DSL right now. What do I do?

Well, of course, I proceed to track down the artists. I still haven’t actually emailed them for permission on this, so I don’t actually know yet if they are going to be okay with it, but I also feel a little touchy about making promises to them. After all, I had to table the whole project years ago, and I don’t want raise hopes again unless I’m prepared to deliver (ironically, the project failed for lack of programmers, darned hypocrites!). So I’ve promised myself that I will work on the software side until I’m ready for that. But I still wanted to know where to find them, just so I knew.

Well, there were actually four great artists on this project back in 2000 and 2001. I think it’s cool to mention their names, as they are already in the credits: Katherine Chi, Daniel Fu, Corene “Nezumi” Werhane, and Marc Yang. They’re all great, and I highly recommend you look up their work. Unfortunately, one of them, Marc Yang, has apparently been abducted by aliens and taken to a far distant star. Or he’s dead. Or working as a sales executive for Taiwanese computer company (but that seems unlikely—my money’s on the aliens).

Did I mention that Marc designed the two main characters for this game? Yeah. Kind of hard to just cut out of the plan. I do have alternate designs from Katherine Chi, which are really good, but not my first picks for those characters (on the other hand she and Daniel Fu have a lot of other terrific character work—Nezumi is mostly a furry artist, but she did a really nice animal character and great costume design). But the point is, I feel really annoyed at having to make a decision on anything but what’s right for the game, and I’m also pretty sure that if Marc knew what was going on, he wouldn’t want to be cut out. But of course, that’s a personal opinion, not a legal finding.

In my next blog entry, I hope to rationalize my way into a solution for this problem, but we’ll just have to see how successful I am at that. In the meantime, note the comment form—I’m all ears.



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Comment from: Lori Angela Nagel [Visitor] ·

10/28/05 @ 12:42
The big thing both licenses have in common is this, you can't have some proprietary entity taking your work, making derivatives, and the not allowing you or other third parties to continue to make derivatives of this new work. I'm sure a lot of people want to avoid that in order to reuse their own modified work,

There was a discussion on the Battle for Wesnoth forums about the suitability of the GPL for artwork. I think this issue needs to be be brought up again before it comes back to get us later.
I see creative commons by-sa and GPL as being very similar, but also somewhat different, in addition to requiring derivative works to be licensed under the same licensed, they also have each have a separate different requirement. For the GPL, this is the requirement for the source code, a requirement that some people have difficulty with, as this discussion states. The biggest problem seems to be that everyone does not necessarily agree on what the preferred form of the work for making modifications is. For programs this is easy, you just have a plain text file, for art there is .xcf, .png, .jpg, psd etc.

I wonder if someone will address this in GPL 3.0, unless of course, as some seem to suggest, addressing it will cause more harm than good. It seems however, that the issues will come up sooner or later no matter how hard we try to suppress or ignore them, so it is better to take a look at them now, rather than later when even more stuff is made available under these licenses. Yet these programing projects like everything to be under the GPL. After all, as you stated, a game is not going to be successful no matter how many artists you have if you can't find one single programmer.
Fortunately for projects like a piece of music or collaborative artworks, you can keep the programmers out. For by-sa this is the requirement that you give credit to the author, I would hate to see the list for some project that ended up with thousands of contributers on some tiny file so that the lists ends up being larger than the file.
So, given these problems with the current popular licenses, should I write up another license to fix them? Hell no, the last thing we need is more incompatible licenses floating around. We have all heard the horor story of the OSI and how companies write up licenses to try and meet their particular goals, but really, I think people do not want to spend all their time reading and writing licenses unless maybe they are lawyers. Programmers would rather code, artists would rather draw, and musicians would rather compose.

Comment from: Vance [Visitor]

10/28/05 @ 16:50
A couple points:
First, it's not the case that a GPL program can only be assembled from all-GPL components. There are a number of licenses compatible with the GPL. For example, one can take new BSD-licensed code and incorporate it into a GPL'd project because it's possible to meet the requirements of both licenses simultaneously. I'm not all that familiar with the Creative Commons licenses, so I don't know how they interact with the GPL.
Second, it may not even be necessary for the license for the artwork to be compatible with the license for the software. I regularly (and perfectly legally) use GPL software to view images and listen to music which are "All rights reserved." If the artwork and music exist as separate files from the game software, the fact that the artwork and software licenses are different may be a non-issue.
I'd suggest you contact the Software Freedom Law Center to see if they've done any work in this area. They've surely got the brainpower and experience to illuminate these issues.

Comment from: Terry Hancock [Member] ·

10/29/05 @ 17:36

Just a brief response to the comments (I'll follow up in more detail in my next blog entry).

First, it's not the case that a GPL program can only be assembled from all-GPL components. There are a number of licenses compatible with the GPL. For example, one can take new BSD-licensed code

Absolutely, but the BSD (and MIT, X11, etc) license provides no copyleft protection for the author. Therefore, it's a fairly unattractive choice for many authors.

On the other hand, I'm not aware of any way to make a copyleft license which is GPL compatible, without explicitly allowing conversion (as the LGPL does for example), or dual-licensing, which is almost, but not quite the same thing (the distinction is that if you merely allow conversion, you don't have to provide the whole GPL package, as described below).

Second, it may not even be necessary for the license for the artwork to be compatible with the license for the software.

Yeah, this is trying to invoke the "mere aggregation" clause. Also, the data processed by a program is not affected by the license. But in practice, this is a matter of interpretation; and it depends rather finely on the design of the software.

I see creative commons by-sa and GPL as being very similar, but also somewhat different, in addition to requiring derivative works to be licensed under the same licensed, they also have each have a separate different requirement. For the GPL, this is the requirement for the source code

The GPL requires both the source code and the full text of the GPL license to travel with the work. That means typically that the work can only be distributed as a ZIP or TAR archive package. This is fairly inconvenient for images or music files, since people tend to want to distribute those as separate files (in fact, you often can't use them unless you do that, given the limitations of client applications). Even if it's technically possible, it's often more hassle than it's worth.

In practice, many people write code or create art and then offhandedly say "this can be distributed under the terms of the GPL" without really understanding what that means. While strictly speaking this is not illegal (they being the copyright holder), it does not encourage compliance. To be truly compliant, anyone receiving such a work, in order to redistribute it, must add the license text and package the result! Of course, almost no one ever does that! The result is that the work actually gets distributed according to informal "you know what I mean" rules that are not actually the GPL (but instead, very close to what the By-SA actually does say).

So, given these problems with the current popular licenses, should I write up another license to fix them? Hell no, the last thing we need is more incompatible licenses floating around.

The reason for my cautionary tale, is precisely this -- multiple copyleft licenses create conflicts, and we currently have no mechanism to resolve them (other than getting the original author to permit re-licensing).

By adhering to a relatively new and somewhat experimental license, I got myself into a bit of a pickle! On the other hand, it remains true that the GPL is a poor choice for art because the language is difficult to interpret in that context (you wind up having to say something like "for the purposes of this license, 'source code' means...", detailed language which only a lawyer could love, and most artists find repulsive). The By-SA is pretty good, and I might've used that originally had I known it would be as successful as it has been.

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Look what I stumbled on when checking google to see where my name popped up. My vanity (and checking where my website fell in the name search... not even a blip :( Time to redesign) led me to this blog posting from last year regarding the Light Princess project I was involved in way back in 2000.

If you've been trying to find me, Terry, here's my contact info:

[email protected]

And current webcomic:

The Retriever

Thanks for the mention :)

Daniel Fu

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I actually did find your site, BTW. I just have still not got a working engine, so I haven't contacted any artists yet (I promised myself not create any false hopes of a restart until I was sure). Meanwhile, time flies by...

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Terry Hancock's picture


Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.