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General Discussion

Is this derivative art?

raaaahman
Wednesday, June 28, 2023 - 06:13
raaaahman's picture

Hello open game artists,

I would like to participate in the Summer Art Challenge with some pixel art I did. Although, I've drawn inspiration from the following manga cover: https://m.media-amazon.com/images/I/513-Ecd1XgL._SX360_BO1,204,203,200_.jpg

And my artwork looks like this:

An astronaut flying inside a cave.

That's only a preview, as I'm providing a pack including: character, face, and tileset.

As you see, the colour are similar, and the there's an astronaut face. Is this enough to qualify as derivative work? If that causing an issue, I could not publich the face (maybe still keep it in the preview?), but that'd be a shame since I spent a little time working on a blink animation and 4 stages of damages on the helmet.

Thank you for your insights!

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NGGAaron
joined 2 years 18 hours ago
Wednesday, June 28, 2023 - 06:46
NGGAaron's picture

I can't see it being too much of a issue, I'm sure there are plenty of examples using similar elements and art styles. While they do look similar , I think you have changed it enough to quantify drawing inspiration from it , which is what most of art is :D

Next Gen Gaming - Aaron

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NGGAaron
joined 2 years 18 hours ago
Wednesday, June 28, 2023 - 06:49
NGGAaron's picture

 

Found a couple of similar examples so you should be quite fine :)

https://www.google.com/imgres?imgurl=https%3A%2F%2Fc8.alamy.com%2Fcomp%2...

https://www.google.com/imgres?imgurl=https%3A%2F%2Fchrisdoescomics.files...

 

https://www.google.com/imgres?imgurl=https%3A%2F%2Fthumbs.dreamstime.com...

Next Gen Gaming - Aaron

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Ragnar Random
joined 4 years 1 month ago
Wednesday, June 28, 2023 - 08:55
Ragnar Random's picture

safe to use in your game? most likely yes.

safe to submit to OGA as an asset? it depends on how you created the image. i am not admin or the most knowledgeable about the legalities and definition of a derivative, so take what i say here as it is: my opinion.

derivative means it is derived from something else. did you trace the original spaceman head? did you resize the spaceman head and adjust the pixels to look good at low res? in other words, did you use the actual image of the original spaceman in the actual composition of the new spaceman. if yes, than it is a derivative work.

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Umplix
joined 3 years 7 months ago
Wednesday, June 28, 2023 - 09:21
Umplix's picture

I would say, looking at the image, that the portrait is a little bit too close, but the rest is okay.

___________________________________________________________________

No mind to think;

No will to break;

No voice to cry suffering.

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MedicineStorm
joined 12 years 9 months ago
Wednesday, June 28, 2023 - 10:34
MedicineStorm's picture

Usage in your own game is a bit different from submission on OGA. Since you're talking about the Summer Art Challenge, I'll assume your interest is predominantly about submtting on OGA:

^ Pretty much what they said; Should be fine, but it depends on how you made the more specific sprites, like that astronaught face. More on that below.

Using the same/similar color palette is fine. That won't make it a derivative. Palettes can't be copyrighted.

You'll want to avoid labelling your asset pack with the Manga title or author name. "The Crater by Osamu Tezuka Asset pack!" could invite Trademark issues and implies endorsement by the manga author that he has not given. Saying it's "inspired 'The Crater' manga" is fine, though.

How was your astronaut character and astronaut face created? Did you copy/scan the manga and then alter the image? Did you trace any part of the manga art to get the right shape and proportion? What parts of the manga, if any, did you use as a base or guide?

--Medicine Storm

 

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raaaahman
joined 5 years 2 months ago
Wednesday, June 28, 2023 - 11:07
raaaahman's picture

Thank you all for taking the time to answer my question.

My process is really simple: I picked the colors from the original with the color sampler from my editor, then placed every pixel by hand, keeping the original image open as a reference. I did not try to recreate the original, just an astronaut with the same color scheme.

Besides, this color scheme being found only on the Italian version, I'm not even sure it was colored by Osamu Tezuka himself, so I don't really know who to credit for the inspiration...

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MedicineStorm
joined 12 years 9 months ago
Wednesday, June 28, 2023 - 11:40
MedicineStorm's picture

The Italian version would indicate the artist if it weren't Osamu Tezuka.

Using the artwork as an indirect reference is borderline derivative. Could go either way. I'd say best not to use it unless you're able to remake the asset without using any references.

--Medicine Storm

 

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raaaahman
joined 5 years 2 months ago
Wednesday, June 28, 2023 - 12:21
raaaahman's picture

Well, now I could probably redo it based on my own piece as reference... :)

Okay so, I will not put the astronaut face as part of the pack.

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ZomBCool
joined 6 years 2 months ago
Wednesday, June 28, 2023 - 13:52
ZomBCool's picture

It's an astronaut and the same colours but the helmets a different shape, the face is different. It doesn't look the same as the manga picture...change the shape of the cracks on the visor maybe for even less similarities.

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MedicineStorm
joined 12 years 9 months ago
Wednesday, June 28, 2023 - 14:22
MedicineStorm's picture

Well, now I could probably redo it based on my own piece as reference... :)

Hahaha! Well, you should note that using a derivative of the original as a reference when making a new version would make the new version a derivative of the original as well. 

Otherwise I could just... trace the shape and layout of Chrono from Chrono Trigger to make my new character "Shrono". Shrono is a derivative of copyrighted content, so then I trace the shape and layout of Shrono to make my totally-original-not-copyright-infringing-character "Brono". Copyright-free, right!? </sarcasm> :P

Distinctive qualities help, but you can still end up with a derivative that looks nothing like the the original. It will still be a derivative if you used the original to copy it. It would be hard to prove it's infringing if it looks nothing alike, but it could still be trouble. Comparing similarity is not the only way to prove something was derived. I know a guy who made video blogs of himself kitbashing commercial game art until no one could tell what it came from. No one could prove it was a derivative by comparing the assets side-by-side, but someone still DMCA'd him and used his own video blog as evidence of copying.

Again, looking at the original while you create your own version is borderline. Usually it takes more than that to constitute "copying" in a legal sense. Your art is probably fine, but if you're not sure, I wouldn't risk it until you can redo the sprite without using another asset as a reference

 

--Medicine Storm

 

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raaaahman
joined 5 years 2 months ago
Thursday, June 29, 2023 - 00:35
raaaahman's picture

It's an astronaut and the same colours but the helmets a different shape, the face is different. It doesn't look the same as the manga picture...change the shape of the cracks on the visor maybe for even less similarities.

Are differences enough make it not derivative? Is there a rule of thumb on how much different it should be?

Hahaha! Well, you should note that using a derivative of the original as a reference when making a new version would make the new version a derivative of the original as well. 

Ok, so not doing that neither.

How did your kitbashing story ended though? I'm sure it is derivative work, but that would probably fall under the fair use category, right?

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MedicineStorm
joined 12 years 9 months ago
Thursday, June 29, 2023 - 09:46
MedicineStorm's picture

 

Are differences enough make it not derivative? Is there a rule of thumb on how much different it should be?

Technically no. If "copying" (in a legal sense) occured, no amount of changes will fully innoculate it from risk of being a derivative. However, even some lawyers would say that if it is so different that you truly cannot tell that one came from the other, why would it matter? Then again, other lawyers have told me, "if the new work is nothing like the original, why did you need the original at all? Just create the new work without using existing works and eliminate the risk entirely."

How did your kitbashing story ended though? I'm sure it is derivative work, but that would probably fall under the fair use category, right?

Yes, it was deemed derivative. He argued it was Fair-Use, but it was only fair-use in featuring the assets in his video, so he didn't get a copyright strike against his channel, but it was not Fair-Use to use the derivatives in his game. The youtube videos were not infringing, but they were used as evidence that his game would be infringing. He still had to adhere to the DMCA for using the assets in his other projects.

In the same way, you could probably use derivative assets under the terms of Fair-Use, but using them in a game would mostl likey not qualify as Fair-Use. Similarly, submitting such assets to OGA would not be allowed because "Fair-Use" is not one of our accepted licenses.

--Medicine Storm

 

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DustDFG
joined 2 years 4 days ago
Thursday, June 29, 2023 - 10:46
DustDFG's picture

Just can't not to write it. People's brain is the engine to create derivative objects and it can't do anything else. It can combine some things but everything produced by brain will be derivative of something... In a philosophical way everything produced by everyone is derivative at least for some value....

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DustDFG
joined 2 years 4 days ago
Thursday, June 29, 2023 - 10:51
DustDFG's picture

Just a question. If someone created a step by step tutorail and you followed each step? If the result isn't the same but similar..?

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Umplix
joined 3 years 7 months ago
Thursday, June 29, 2023 - 11:14
Umplix's picture

Depends if you were basing your work off of what they were doing or using the tutorial as a guide.

___________________________________________________________________

No mind to think;

No will to break;

No voice to cry suffering.

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MedicineStorm
joined 12 years 9 months ago
Thursday, June 29, 2023 - 12:21
MedicineStorm's picture

@DustDFG: ^Yep. What Umplix said. In fact, drummyfish and I consulted an attorney about exactly that scenario. 

But you are correct when you say "in a philosophical way". The difference between "derivation" and "inspiration" is philosophical. If you were inspired by some other work of art, and made your own, it is NOT a derivative. If you used some other work of art as a component or baseline for making your own, it IS a derivative. The line between inspired and derived is often fuzzy and only exists philosophically.

Unfortunately, there is legal precident surrounding that philosification, and believing in the "wrong" philosophy can still get you in trouble legally.

--Medicine Storm

 

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DustDFG
joined 2 years 4 days ago
Thursday, June 29, 2023 - 23:25
DustDFG's picture

But if you got some "lego bricks" and method how to create a tower from them....

 

https://www.slynyrd.com/blog/2019/8/27/pixelblog-20-top-down-tiles

https://opengameart.org/content/pixel-art-top-down-tileset

Do you think the grass is derivative?

But I can recreate it just from my mind by looking on nothing without any references because I understood the method....

 

Tutorials give you bricks and say how to place them together...

 

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MedicineStorm
joined 12 years 9 months ago
Friday, June 30, 2023 - 05:22
MedicineStorm's picture

But I can recreate it just from my mind by looking on nothing without any references because I understood the method....

if that's how you made them, then they aren't derivatives.

--Medicine Storm

 

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DustDFG
joined 2 years 4 days ago
Friday, June 30, 2023 - 05:29
DustDFG's picture

Ok... I expected another answer but I glad :)

Do you know where I can read about copyright laws and other related to it stuff?

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