Are we working under the assumption that this is art being used without permission, then? After all, how would a passive observer really know whether the model has obtained permission to use someone else's artwork or not?
Anyway, assuming that the work has indeed been "stolen", it's still often not a binary issue, at least as far rights are concerned. Decades of corporate meddling, the rise of the international marketplace, and the internet have made intellectual property law murky realm. Judging who possesses what protections, under what law, and under whose jurisdiction can all quickly become hard to discern, and knowledge of the law becomes pretty important, as well as a willingness to judge the situation on a case-by-case basis.
I'll use a couple of situations brought up in this thread as examples.
I recently saw some Halo artwork that was from a very popular DeviantArt. I've also seen a lot of Game of Thrones fanart used in page design. None of these models have permission from the artist to use their work. I understand that no one is doing this intentionally, but I feel that it is still stealing.
Fanart is a complex issue, since it is so prolifically published on the internet. However, when it comes to intellectual property, the rights issued to fanart are a great way to show that putting in the work does not automatically award an artist with rights. Fanart, by its nature, is derivative, and control over the rights to derivative works generally goes to the original property owner. So, when it comes to Halo or GoT, the artists who made the fanart have no legal recourse to keep others from using that work, because Microsoft owns Halo and George RR Martin owns GoT (and HBO has the TV rights to it, which -- to my knowledge -- would cover the likenesses most often used in GoT fanart these days, so that just further complicates issues of who gets say over a property... like I said,
murky.) If the artist wanted to stop unsolicited use of the work they've done, they would have to get Microsoft or GRRM (possible HBO) involved.
Fanart is such a gray area. It's generally tolerated by IP owners, if not actively promoted by them. It's often seen as a positive aspect of content creation, and a way to build good will within a fan community. Often, IP owners don't even mind if fanart is used to make a bit of money for the artists who make it. However -- I will repeat this because it can't be stated enough -- fanart is inherently derivative, and the rights to control derivative works are owned by the original IP owner, not the artist of the derivative piece. In the case of fanart, permission to make it and publish it is often implicitly given, but it isn't usually actively expressed. And there are rights holders out there who just lock that shit down. Anne McCaffrey has been (in)famously controlling of her property, as has Anne Rice. Something about the name Anne, I guess.
Anyway, the bottom line is this: you can't have "stolen" what you don't own. Despite all the hard work and good will that goes into making fanart, ultimately, the fanartist has no legal control over its use. I know that flies in the face of common sense, but hey, that's IP law.
Murky murky murky.
...Van Gogh... Its a copyright violation for sure....
No.
No, it's not.
The public domain is a thing that exists. Copyright protections can and do expire. Generally speaking, any works published before 1923 fall within the public domain, leaving
most of human expression free to exploit. Of course, regarding anything published after 1923, judging whether something might be in the public domain
grows ever murkier. However, you, I, and everybody else can do anything they see fit with the image of a Van Gogh painting, and that includes posting it on a model's profile. This is pretty cut and dry.
Right now, there are three different versions of Sherlock Holmes present in popular media because Sherlock Holmes exists in the public domain. Same with the land of Oz and its inhabitants, which has spawned works like
Wicked, both the book by Gregory Maguire and the Broadway musical adaptation. To make things complicated, if I made art that looked like Sherlock Cumberbatch, that would be fanart, and subject to copyright law -- the same goes for Maguire's version of the Wicked Witch of the West, Elphaba. Keep the characters based upon or riffing off of Baum's or Doyle's original descriptions of the characters, I'd be home free. If I wanted to write and illustrate a pornographic crossover, where Holmes ends up in Oz, and receives a handy from tWWotW, that would be perfectly legal. That... that actually sounds kind of awesome. I might just do that.
Hell, I could even reference recent works if I wanted to, since fair use under parody is also a thing that exists. Also, if anyone wants to try to get to
The Wonderful Wicked Witch of the West and the Holmes Handjob before I do, you can, since ideas and titles can't be copyrighted. Only expressions (creative works) can be copyrighted.
Murky.
I've been a working artist for the better part of twenty years. I actually love publishing, and I (obviously) am fascinated by intellectual property law. On a personal level, I tend to believe that given the the ease of information exchange that is part of our current cultural makeup, publishing your work, especially on the internet, is essentially giving it to the world. If I'm going to err in my interpretation of intellectual property law, I'd rather err on the side of its spirit -- which is to incentivize creators to continue creating, while fostering free communication through the use of creative works. you can't do that if you're utterly paranoid about your rights, and ready to send takedown notices if you find your art on someone else's web page. Obviously, being asked permission is the best thing, but unless I'm actually being financially harmed by a misappropriation, I figure it's going to be alright.
TL;DR: I don't own that picture of Master Chief finger-banging Cersei Lannister, so I guess it's fair game. I do, however, own that picture of Dr. Watson living out his automaton fantasies with the Tin Man of Oz, but you can use it anyway. Unless you make a movie out of it and try to cut me out of the deal. Then I will SUE YOU!
EDITED ADDENDUM: I wanted to link a couple of other pages, because I think they're interesting.
Here's some case law on image rights, to show just how deep this stuff goes.
Here's a page on how Australia treats fanart, because it's important to be aware that copyright law is not internationally universal. There are about a dozen treaties that try to bring things generally in line with each other, but not all member nations are the same. Misappropriation might be well-defined in your country, but it may well not be elsewhere in the world and on the internet.
Murky!
