Part of the idea of oga is that the art on it is all free to use and that people dont have to wory about being sued when using work fom it.

The only way that work like this can be allowed is under fair use. Unfortuinitly this work probably wouldnt fall under fair use as it could be consideered a direct market substitute for the original.

Also the title is not an issue as names cant be copywritten as such its the only part of the work that is legal :(

Apart from the layout nothing seems quite similar to homm. I think it won't be problem. However as qubodup stated, homm is a trademark and Ubisoft will not like what happens here. For fan art, you cannot do more than hanging it on your wall. Rest is not fair use, thus fan art is not usable in games.

Each element is not identical, but the scene as a whole essentially is.  I think there might be issues of some sort or another, though how the legality hashes out is not a perfectly simple question.  One which I'll admit I am not qualified to answer.

Unfortunately, under the current coyright regime, fan art is at best tolerated, at the discretion of the franchise owner, who reserves the right to sue you out of existence any time.

But what counts as fan art? Suffice to say, people have been sued successfully for reusing three musical notes from someone else's song, or for framing a photo in a similar fashion. Wish I was kidding.

Short version: fan art of any kind is radioactive. Stay original.

When I drew this screen, I largely inspired by the idea of ​​making free resources for the opensourse implementation of the heroesII engine (http://sourceforge.net/projects/fheroes2/), as was done for freeciv and openTTD.
I do not know how things work in the last two games, but the heroes of might and magic 2 are cool because they look like heroes of might and magic 2, and I did not want to change the style or design, or the game would have been wrong.

@redshrike: notice that everything is not copyrightable. A simple and generic town layout (which he modified slightly) will not be a problem. Also, to make sure, author can scramble the locations of the buildings. After all they are in separate layers.

It's true.  The question is just a bit fuzzy as to what constitutes a derivative work (read: thorny mess).  I agree scrambling it might be an easy solution, though?

Scrambling the buildings etc wont solve the problem, the issue at hand is the first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

 Also how does Commons:Fanart say there may be no problems they say the exact opposit in fact.

@Botanic: In the source image, the only copyrightable part is the drawing itself. Not the layout nor the building models. The new image only uses similar layout and similar buildings, however, nothing is copied, ie. no copyrights are infringed. However, the name Heroes of Might and Magic is the trade mark of Ubisoft. Therefore, endorsing your own work as a replacement for the art in question is a trademark infringement.

One thing that does make me uncomfortable is that, whether it's technically within the bounds of the law or not, it would certainly qualify as plagiarism in any academic setting if you claimed it as exclusively your own work.  While that's not a legal term, I think it has some significance nonetheless in how we operate.

Redshrike: Everyday we ask our students to re-write same algorithms that have been solved by proven methods. All they do is to write the same algorithm again. Its plagiarism if they copy the code from somewhere, not when they model their program after another.

That's not the case in most fields.  EG: if you paraphrase someone else's work, you have not technically copied anything they did.  But if you claim it is your sole creation, you have committed plagiarism regardless.

(for the record: I think it's clear, but I do want to clarify that I'm not accusing Ashiroxer of any wrongdoing.  The only question is whether/how the piece can fit in OGA's archive.)

Hi,

My humble thought about this is that if nobody is comportable with such art as it seems to be here, then there is a problem and this can't be defended against possible prosecution.

As bart said, you know it's not a derivative when the judge asks him/herself why on earth people think it's a derivative not when he tries to know why it's not.

Best regards,

I would say that its on the fence, its close to derivitive but i dont know if it quite crosses the threshold. I would say from my knowladge of copyright law that at the very least it could go eaither way depending on the judges mood, what he had for breakfast, lunar cycle etc.

@qubodup: Maybe rebrand it as "Scions of Strength and Sorcery", then?  Still gets the point across with synonyms, and has a nice ring to it..

The trademark is actually only part of the issue and actually its prolly the least of the issues.

• A drawing of a boy with black hair and glasses. Allowed as a pre-existing commonplace element, provided it is a drawing of a generic boy, and does not copy the specific realizations of the book cover illustrations, the movies, or the computer games.

• A drawing of a boy with black hair and glasses labelled “Harry Potter”. Allowed under the same conditions as above. The mere addition of the words “Harry Potter” do not turn a generic representation into an infringing copy. There is no copyright in a mere allusion.

• A drawing of a boy in a wizard hat and robes, whether or not labelled “Harry Potter”. Allowed as a pre-existing commonplace element, provided it is a drawing of a generic boy wizard, and does not copy the specific realizations of the book cover illustrations, the movies, or the computer games.

• A drawing of a boy with black hair and glasses, with a zig-zag scar on his forehead, whether or not labelled “Harry Potter”. Here, the combination of features taken may be unique to the character in JK Rowling's novels, but such a combination is in itself likely to be considered an uncopyrightable idea in the US courts. Also, as stated above, the English courts do not recognise the concept of copyright in a literary character at all. This should therefore be allowed, provided it does not copy the specific realizations of the book cover illustrations, the movies, or the computer games. However, drawings with this much JK Rowling detail or more should be reviewed carefully to ensure that they are not actually copied from a screen representation. If there is doubt the precautionary principle should be applied.

This falls under catagory 4, the labeling -may- be an issue but not a copyright one. There is still the issue of copyright, it may be different enough that it should be ok but it also is close enough it may not be.

Still, something about hosting direct remakes of proprietary assets on OGA just bothers me.  It's a beautiful work, and I really like it.  But the inspiration goes beyond style and even general content; it's a different rendition of the same scene.  I really wouldn't be comfortable putting it in a commercial game if I were a dev.  Maybe that's just not an issue that OGA needs to try to referee, but it seems like an important consideration.  I mean, this piece has the distinct advantage of being layered, so I would most likely just crib pieces of it for a game, but the issue is maybe more general.

@Botanic: there is no identifiable feature of HOMM in the submission. Therefore, I assume its cat-3 rather than 4. 

Also, can you tell me how many times have you seen a town center along with some peasants and a barracks?

I defend the use of the resource because I feel like copyright laws are overused and getting in away. Most people want to be on the safe side and withdraw. Notice that most of the copyright cases which does not include real offenders (like direct copies) ends in the favor of defendant. This is the direct cause that the copyright does not cover many aspects of a creative work. Like layouts, ideas, combinations.

Take a look at Steinberg v. Columbia Pictures Industries, Inc. for a similar case.

Agreed, and there are no identifiable features, oh and how many times you seen a town center with stonhenge in the middle, a castle on the left with its lights on, with archery targets under it, a red seperater wall for the road, mountians with a rainbow in the background, 6 buildings on the right (3 in foreground 3 in background), a red pedistle tower with 2 platforms, a dock in the left foreground, a statue with red and blue crystals pointing up from the ground in a circle around it, a well with a hinge based buchet pull, a brown tower in the middle, and a moat around the castle with a path going up to it.

The issue is that its close enough that you could be sued, would you win, id say you probably would, but you -could- lose as it is defently in the gray area.

The layout the design the look and feel are all very close and some elements look almost traced over. (tracing is copyright infringment)

Personally I think that it isnt infringing however I dont want people to assume they wont be and end up getting sued, as the only major diference between the 2 pictures is the brown tower in the middle, the others elements are incredibly close.

Also you have to realise that while this is an amazing piece if it was a terrable piece we wouldnt have this discussion, the quality of the art however has no bearing on if its infringing or not.

@CodeAndReload: please read the ending remarks, how judges exculeed one of the important steps in the judgement. However, on the other hand, defendants never tried to prove that the copied sections are not protectable. From the Wiki:

While it is appropriate to look at both protectible and unprotectible elements of a work to determine whether copying has occurred, only the protectible elements are relevant when it comes to determining improper appropriation. The Steinberg court made no attempt to separate the protectable and unprotectable elements of Steinberg's drawing.

@Botanic: you are right about the gray area. I guess to make it more appropriate we could ask author to dismantle the scene and post separate buildings and background. 

Hey folks, here's the final answer on this:

There are two big issues with this post, one of which is easily fixed (the title), the other of which is not (the fact that the image clearly has almost exactly the same layout as the one it's based on).

I don't know for sure about the legality of something like this (my impression is that it may be legal, although I'm not sure).  What I do know is that, even without the title, a reasonable person would look at both images and come to a conclusion that the submission is clearly a copy of the original, and that there's no chance that it's because they're both generic images.

What I want to avoid are these cases where we have to quibble about whether something might be legal.  People making games need to be able to use the media hosted on OGA without worrying that it might be an unlicenced copy of a work.  Even if it's not something that's legally actionable, it might look bad for someone to use this in a game and then have the community discover later that it's a nearly exact copy.

As such, I'm going to depublish this image, with apologies to the artist and submitter.  I wish I felt comfortable with keeping it, since it's a beautiful piece of art.  If the buildings were placed differently (and that distinct red building toward the back weren't such a precise match), I'd be okay with keeping it on the site.

P.S.  With respect to qubodup's Pikachu example: While he's probably right about the legality of it, that character is very clearly Pikachu regardless of the title.  I'm going to establish an official policy here and now that we won't accept something that's obviously supposed to be a piece of media we don't have a license to, even if it wasn't traced and there are minor differences.

The issues was we are trying to see why its -not- infringing, rather then trying to see how it -could- be infringing, that is the problem.

@cemkalyoncu, It gets a bit more complicated than that if you consider the collection (choice) of non-copyrightable elements as a copyrightable element.

That said, I'd be for a kit of elements to arrange, (transparent png) with a sufficiently larger set of elements.

Something like that would definitely work.