I think a problem that forced eBay to adopt a new policy towards 'mtg altered' is that no one there in the trust and safety department plays magic, and hence they did not want to put in the extra effort to determine which cards are legit and which one's are fake.
As regular players that know the environment we can easily spot what is legit or not, but that's not the case for a non-mtg player.
You may be right. An ideal solution would be if they would allow us to advise them on the matter, but that's easier said than done.
Like CBG, I'm sorry for any damage I've done to your market. That was not my goal; my goal was and still is to protect your market, MSE, and ignorant buyers.
I just can't accept that ceasing to report users who are violating these laws is an acceptable solution. Ignoring a problem is never the answer.
I don't think you guys have anything to apologize for. If these counterfeiters are allowed to keep going, eventually someone is going to get mad that they bought a fake card, ring it up the WotC tree high enough, and force this same issue anyway. Better now on this scale then later on a greater scale.
Incidentally, WotC can be contacted directly about counterfeit cards. They'll take legal action against individuals like this directly. Has anyone gone this route?
I hope I'm not asking a question that's already been answered, but are we positive that the supposed copyright infringement is on the art, and not the magic card itself?
I'm assuming that's correct just because Amy Weber's stuff got relisted with apparently no problems.
If that's the case, and it's true that she's allowed to list altered cards that she's painted the original art for, doesn't that mean that the intellectual property rights of the art belong to both WOTC and to the artist? Meaning if we got written permission from an individual Magic artist to extend their art, replace their art, or add to their art, that'd be allowed on eBay?
Good question! Amy is able to do what she does because, if I remember correctly, the work she has done for WotC was done before the newer artist agreement, so she technically owns 100% of the intellectual rights to the art she did for the cards. WotC simply had a licence to reuse it for a while.
If I remember correctly, the new agreement is exactly the other way around, with Wizards owning the art rights, and the artist able to enact a 'fair use' clause.
This is an exchange that I had with an IP lawyer online. It seems that we may have more trouble than I originally thought with the legal side of things but some bright spots are highlighted. I hope this helps to find an answer to this.
Me: I have been painting additional art onto Magic the Gathering cards and then selling them online. I am not painting another copywrightted or trademarked image onto the cards. The cards are authentic Magic the Gathering cards. They have just been altered with additional artwork that is completely my own. Is there an infringement of rights?
Thank you for contacting Just Answer. I look forward to assisting you.
Lawyer: You are creating what is called a "derivative work" from the Magic the Gathering cards. A derivative work is a work that is based on an original work — for example, the Harry Potter movies are derivative works of the Harry Potter books.
Derivative works are an amalgam of rights. The copyright in the original work belongs to the original author: in this case, to the Magic the Gathering artist; however, copyright in the additions to the original work belong to the creator of the additions, in this case, to you.
Section 102 of US Title 17 defines the subject matter covered by copyright:
"Sec. 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work."
So far, so good. Works of authorship are defined. They include artwork. Copyright law applies.
Section 103 of that same title specifically discussed derivative works.
"(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a work
employing preexisting material in which copyright subsists does not
extend to any part of the work in which such material has been used
unlawfully.
(b) The copyright in a compilation or derivative work extends only
to the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material."
However, copyright does NOT attach to any work created unlawfully. This tells us that we must look further to determine whether there is some law against the creation of derivative works. That leads us to 17 USC 106, which says:
"Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission."
Oops. Derivative works are listed as being a right exclusively reserved for the copyright holder of the original work.
Sorry; your artwork infringes the cards' copyright.
Nancy Delain, Esq.
Patent Attorney/Attorney at Law
Schenectady, NY
Me: What if the work that I am painting onto the card has nothing to do with the original image or the original image is completely painted over effectively using the cards as simply a canvas. I also found this:
US Copyright Office Circular 14: Derivative Works notes that:
A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.
This and your harry potter example seems to indicate that a derivative work is a physically different work itself that contains elements of the work it is derived from. My altered cards are not "new works". They are only customized. Also, normally I change a very small percentage of the card and certainly not enough to be considered a new product. The "Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes." statement should apply here I think.
Thank you for your answer. I am not trying to argue. I just need to check every angle possible because I have been relying on this for income and ebay has recently taken down all altered Magic the Gathering listings after allowing them for years. Thank you for your help.
Lawyer: Questions are fine, as is bringing up new points. I love communicating with people who educate themselves and thereby challenge me, so this is great!
Hmmm. Ebay as copyright police. That's just scary, but you're not the first person from whom I have heard something like this. One of my private clients posted video to YouTube and had it yanked for copyright. It was her own video, taken by her with her own camera. The big sites are careful to the point of overzealousness to protect themselves from suit. I'm sorry that happened to you.
A derivative work is a work based on the original work. Thus, if someone broke into the Louvre and painted a handlebar moustache on Mona Lisa and rearranged her background so that she appears larger on the right than on the left (at this moment, she is larger on the left), that would technically be a "derivative work" (it would also be vandalism and punishable under French law). A derivative work does not need to be separate from the original work, especially in the artistic realm.
Also, artists have extra rights, over and above the rights granted to, say, authors of books. An artist can enforce against change to his original work regardless of who owns that work. That does not apply to you, though since you don't own the original work. The cards on which you are painting are actually reproductions of an original work; you don't have the canvas on which the original artwork for the card was made. In that sense, your paintings are separate pieces from the original. The artist cannot use these extra rights to enforce against what you've been doing, if I understand correctly what you've been doing.
If you use the card simply as a canvas and paint completely over the original image, that is copyright to you. The card is just the substrate, as would be an ordinary blank canvas bought at the art store.
If your modifications are so minor as to not make a substantive difference in the original work, there's no problem since you are essentially selling the original card, which you own. It's the area of more substantive change, where you HAVE created a new work out of the old, that gets people into trouble. There is no bright line between non-substantive difference and substantive difference, especially in the world of art. Just painting that handlebar moustache on Mona Lisa would likely be considered a "substantive" change since it would change the characteristics of the original painting by interfering with her Mona Lisa smile. Adding even the most complex extra aliens into the bar scene in Star Wars IV may not be considered a substantive change since that derives from but does not really noticeably change the original work.
Money does not enter into copyright considerations. If the original artist wanted to go after you, s/he would have to prove only two things: (1) a valid copyright exists; and (2) there also exists a "substantially similar" copy. That's it. No profits or damages need be proved to win a copyright lawsuit. Profits and damages come in when asking for remedies to the original finding of infringement.
Pichoro,
Since you are a Wizards employee perhaps you could help we artists that are doing work that Wizards would approve of get written consent to continue supporting wizards secondary market with quality alterations on authentic Magic the Gathering cards. I'm sure most of us would agree to provide samples of our work for approval.
Thank you for any assistance you can render.
Michael
dancingdragon - I'm not a WotC employee. I'm not sure what lead you to believe that I was. While I am a Magic Set Editor developer, the program is not a product of WotC. We exist in a sort of quiet peace with them, where we provide the community a tool for making their own custom Magic sets, and they get to take advantage of the program for making things like playtest cards and sample images for their website. That's very flattering, though.
But to be honest, I guess I am a little hypocritical. We violate WotC's trademarks by redistributing their images as a template for MSE, in the same way that they are violated by the psd's that exist in this very forum. But we specifically do not condone proxying or counterfeiting. Any thread that exists in our forum about proxying or otherwise re-making real cards is immediately locked; the only exception is a couple reprints that a user may put in a custom set.
So, for the good of my hobby (MSE), I stand firmly against those who proxy and counterfeit. On the other hand; I support what you guys do. While I haven't ever bought, I enjoy looking at. I rather enjoyed the couple of yours that I've seen, dancingdragon.
All in all, I don't imagine I'll be much help to you with WotC. I'm probably not one of their favorite people.
Money does not enter into copyright considerations. If the original artist wanted to go after you, s/he would have to prove only two things: (1) a valid copyright exists; and (2) there also exists a "substantially similar" copy. That's it. No profits or damages need be proved to win a copyright lawsuit. Profits and damages come in when asking for remedies to the original finding of infringement.
This is the part that interests me. If we take into example a newer piece of artwork, created under the new agreement, Wizards owns the copyright. They therefore have say. (Also, the basic things like borderless alterations become very much a violation of copyright law here...) It seems that if Wizards makes available a statement saying that they condone alterations, we'd be set. (Assuming they do feel that way.)
However, what isn't clear is whether the artist has any legal say either in a case like this. Would we need both?
This is the part that interests me. If we take into example a newer piece of artwork, created under the new agreement, Wizards owns the copyright. They therefore have say. (Also, the basic things like borderless alterations become very much a violation of copyright law here...) It seems that if Wizards makes available a statement saying that they condone alterations, we'd be set. (Assuming they do feel that way.)
However, what isn't clear is whether the artist has any legal say either in a case like this. Would we need both?
--->DJ
Absolutely not. The original artist can only enforce copyright or moral rights in a case were the original piece was modified. Not where a copy was modified. Also, that particular right is a right reserved for artists only, not the owner, copyright holder or the producer of the product. So, nobody can enforce copyright against someone painting on an authentic magic card as long as what is being painted is not copyrighted itself. However, this is probably being seen as a grey area at best by ebay. They are not likely to change there stance unless there is written permission by either WoTC or a court.
Good I really hope for everyone here that wizards of the coast gives you permission! I just started out, but I don't want to see great artists give up because they can no longer make a living from it. Please someone who has contacted them let us know when you get a response! Hopefully it will be a good one we can forward to ebay or maybe even ask wizards of the coast to directly contact them on our behalf!
There is no policy such as that. Find an ebay policy that specifically denies a person the right to customize an authentic MTG card or any item with non copyright-infringing art then sell it on ebay. you won't because it does not exist and cannot exist. And it most certainly matters if it is legal or not. First-If it can be proven to ebay that there is legally no wrongdoing then they are likely to reverse their decision. Second-If MTG cards can be sold at all, if customized products can be sold at all, and finally, if a piece of art(non MTG related) depicting scantily clad women can be sold at all; then an authentic MTG card with a non-copyright-infringing scantily clad woman painted or printed on it can be sold. Anything less is clearly discrimination. No organization private or government can discriminate against one person just to make it easier to rightfully prosecute or persecute another even if the other is doing wrong.
You are slightly confused. It is perfectly within Ebay's rights to ban a certain type of auction. There is no written policy of ebay's specifically pointing out MTG, nor does there need to be. If they deem it copyright infringement, it is covered under that.
"Second-If MTG cards can be sold at all, if customized products can be sold at all, and finally, if a piece of art(non MTG related) depicting scantily clad women can be sold at all; then an authentic MTG card with a non-copyright-infringing scantily clad woman painted or printed on it can be sold." Not entirely true. You're jumping to the end, and leaving out a few points. You still have to not be infringing the copyright. I will go out on limb here and assume WOTC retains the rights to the images on the cards, and they obtained those through their agreements with the artists when they purchased their work. In this case, WOTC must be the one to claim the copyright infringement. If they have discussed this with Ebay, and feel that the alterations are indeed copyright infringement, it is well within ebay's rights to agree not to sell them.
I ask you to show me a law that says a company MUST allow anyone to sell anything. If you can not, I ask how you can say ebay MUST allow the sale of said items, even if the said items individually differ. For example, custom work can vary greatly. Some of it may infringe copyrights, some may not. Custom Magic Cards are different than say, Custom Choppers. One alters work, one takes work and makes it original. The printing of pictures just on to a card obviously is using WOTC's copyrighted work, and would be violating copyright laws.
I do agree they can not ban an individual user for it, and not others, however you have no way to show whether or not they are doing this. If you get reported for it, and someone else does not, ebay may not even know it exists. Technically, it's not really breaking any rules, at least in the form of dealing out a consequence, unless you get caught. The man robbing the bank who got caught can not complain to the court that the other man who did not get caught is not doing time. See the difference?
I hope this clears up some of the misunderstanding involving this topic.
I know that they were reported separately and I know that no one sits and looks for auctions in violation of policy, but so many were being reported for being illegal proxies and I'm sure WotC complained as well, that they made a new policy. Upon resolution of the policy, all auctions listed as "MTG altered" were taken down without deliberation because they were in violation of the new policy. Some were put back up because they were signed or clearly altered by the original artist.
Even the original artist can be taken down for copyright infringement. Especially if said copyright now belongs to someone else, such as WOTC.
Listings are building, and the fakes are dwindling. Good news as far as I'm concerned: goomaster03 has completely stopped making listings for his MSE2 fakes. I think that's a step in the right direction.
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"If I take death into my life, acknowledge it, and face it squarely, I will free myself from the anxiety of death and the pettiness of life - and only then will I be free to become myself." - Martin Heidegger
I'm interested to see what else people find out from WotC too.
I wouldn't expect much from WOTC, I don't think they will ever openly condone altered cards (even if privately they do condone them) because it is too dangerous for them to do so. If they issue a statement someone will find a loophole in it and use it to sell fakes or some such, and once a precedent is set they will be screwed. So don't hold your breath...
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"As the mists of Mirewood are ever changing so to is life." ~Tyorl Nightwind, Mirewood Ranger
I hope I'm not asking a question that's already been answered, but are we positive that the supposed copyright infringement is on the art, and not the magic card itself?
I'm assuming that's correct just because Amy Weber's stuff got relisted with apparently no problems.
If that's the case, and it's true that she's allowed to list altered cards that she's painted the original art for, doesn't that mean that the intellectual property rights of the art belong to both WOTC and to the artist? Meaning if we got written permission from an individual Magic artist to extend their art, replace their art, or add to their art, that'd be allowed on eBay?
Not that it'd be easy to contact every Magic artist, but you know, it's a thought.
My two cents. :/
Has she been able to get anything listed for anything after Mirage? My understanding of the situation with that is that the early artwork, before Mirage, was licensed by WotC with per-printing and/or per-copy fees paid. Later art had all rights purchased by WotC. This is what caused WotC to have to make royalty payments to artists when their early art was reprinted later on. This is why Seventh Edition had all new art. This may also be why Amy Weber can get things relisted — she probably still owns the rights to her early art and proved it to eBay.
This is an exchange that I had with an IP lawyer online. It seems that we may have more trouble than I originally thought with the legal side of things but some bright spots are highlighted. I hope this helps to find an answer to this.
Can you PM me contact information for that lawyer? I'd like to have a talk with him. Some of what he's saying doesn't mesh well with my understanding of the Copyright Act, and I'd like to make sure I understand how all of these things work in relation to altered cards and Market Street.
Just FYI, some guys in France launched a site at the end of 2008 in order to sell altered MtG cards (or "painted" cards, no proxies, something apparently legal)... WotC had it shut down in a matter of weeks.
That's France. French copyright law is so complicated and nonsensical (not to mention written in French) that I'm surprised anyone can understand it, let alone enforce it.
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Hey all... I'm retired, not dead. Check out what I'm doing these days (and beg me to come back if you want):
Problem with reporting it is that Ebay might blanket sweep the place again. So really it's your call.
Turning a blind eye to problems like this doesn't make things alright. It means that that user gets to keep taking advantage of people if they're really fake (which they probably are). And it makes those who do the good stuff look bad.
Yeah, if you look at her comments and part of her description its obvious these are not real cards. She is selling tokens in sets of 4 for $10 each...printed and pasted on magic cards. Weird part is she still gets positive feedback, but that's the error of the feedback system. Send a negative and you get one...then your rating goes down...:facepalm:
But I can tell from the styles that she doesn't do her own cards. This seller is just printing and pasting images she stole from the internet and selling these fake/proxie cards en-masse for $10-$20 for a playset. Its really disgraceful to the altered art community...
I e-mailed the person who does these auctions. It seems they do alter using paint (I can confirm this looking at their auction history), and they just started doing the print-outs and didn't understand the legal/moral issue what-so-ever. They were horribly confused as to why ebay/other people shut down their auctions and we are currently having a nice conversation about copyright and WotC's opinions and how they vary between acryllic/painted edits and forgeries.
Although nothing is finalized, I think I talked her out of selling printed "proxy"/forgery cards. I'm also trying to talk her out of selling tokens using other people's art without permission, but I'll take my wins where I can get them.
Got back the final response. The auction holder claims his/her hand is messed up. Once their hand recovers, they will stop doing digital cards of any variety. They will also immediately stop doing cards that are not tokens. While its not perfect, I personally think its a reasonable compromise (at least people won't think they are getting the real card). She/he was very polite and honestly didn't understand the trademarks issue ("I didn't understand why ebay shut me down before; thanks for explaining it as ebay refused to give me an explanation that made sense").
pufferfish2513 was shut down temporarily because it was I who had reported her to the authorities. This took place *after* ebay wiped out everyone's alterations.
Ever since then, I've been reporting her auctions, almost fanatically, but Ebay seemed to have turned a blind eye to such blatant infringement. Why did I do it? I have been following this thread and the altered art thread and although I'm no artist myself, I do value the works produced.
I had a short correspondence with her, which was not pleasant (understandably since I told her I did report her), and she went ballistic, claiming I had ruined the altered community. She pulled a lot of names then, saying she was friends with laura, dereck and etc. It was amusing cause I remembered reading that cardkitty did report her auctions as well
After that, she took me on a guilt trip and gave me a sob tale about how her parents had passed away in a tragic accident, and she and her grandma had to depend on this as her only source of income. And yea, she said her hand was injured too. That was back in June 8th. I still have the emo piece of email sitting in my gmail account.
This ebayer, pufferfish2513, has another account which sells counterfeit mtg cards as well.
And if you check their feedback, evelynyue0311 and pufferfish2513 left postive feedback for each other.
@Kitsunewarlock. I've went through her feedback a couple of times but found nothing to suggest that she did alteration with paint before. Which ones were you looking at?
@Kitsunewarlock. I've went through her feedback a couple of times but found nothing to suggest that she did alteration with paint before. Which ones were you looking at?
I thought I saw some (poorly done) random anime girls on islands a while back. In retrospect (I'm running on VERY little sleep this last week, though), I don't see it.
She is starting to make me angry though. She hasn't taken down any of her counterfeit cards. I'm fine with selling altered cards on ebay...but counter-feit cards like her Merfolk Sovereigns are a gyp. The fact she's trying to sell (and, in many cases, suceeding) 4 tokens for $10 and $20 is ludacious as well. I considered printing out 180 tokens for my close personal in-real-life friends for ~$10 just to cover the expense of printing, but didn't due to the moral consequences of stealing random (albeit creditted) artwork. She doesn't even seem to care...
She apparently justified this criminal behavior with "the sheer number of hours it took me to edit these cards in photoshop". Even if that were true, most of her alters are of pretty low quality and finding things like the proper fonts are but a google search away. The fact she doesn't explain clearly in her auctions they are fake cards bugs the heck out of me too. I understand that they are illegal either way...it just adds insult to injury.
PS: Looking through again, I don't know where I saw altered islands. I must have been looking at another random printer-seller on ebay who used to do alters and assumed it was the same person...
Furthermore: He/She told me they would only sell tokens from now on. While this is still illegal and I frowned upon it, it should impact the altered art community much less. Does anyone here really sell custom tokens? Feel free to throw a fish-tied-to-a-brick at me if I'm wrong.
In other news, I'm almost confident enuogh to sell my own acryllic alters on ebay? Now to see if I'm actually wiling to part with my own work ToT
Elspeth 1 (Says "Like Proxy" you be the judge). No problem just magnifying glass around the text box. You've mentioned this seller, so we can assume this is just a print out.
The problem is of course the title "Customized Elspeth, Knight MTG Altered Extended Art x4".
Every 4 completed auctions is one of these.
I have always understood Altered Art, meaning you took a real card and changed it up somehow to be ok, even if you are erasing all but the Nameplate on a $15 rare and printing over the rest.
Most people feel that if you print, or have commissioned proxies for personal use (to playtest w/out beating your power for instance, or 10 proxie vintage tournaments) to be ok. Wizards of course does not.
Wizards cannot regulate the use of tokens. Anything that doesn't have a MTG card back can represent a token.
eBay has a policy that prohibits the sale of "fakes" which has always included proxy cards, but not things like Artist Proofs as long as they are labeled correctly as art.
Honestly I think wizards has aggrivated this problem with "textless" reward cards, but that's my personal oppinion. I know a LOT of people who enjoy them. I think they should do another series of lands - perhaps original duals
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Out of the blackness and stench of the engulfing swamp emerged a shimmering figure. Only the splattered armor and ichor-stained sword hinted at the unfathomable evil the knight had just laid waste.
Side note: noticed that RanMn is selling this ***, and i remembered that Bigup was the first one who came up with the idea. When RanMn followed, he claimed that it was to prove his statement that it looks good on a crisp white background and he wasn't going to sell it. Well, he's selling his second piece already.
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You may be right. An ideal solution would be if they would allow us to advise them on the matter, but that's easier said than done.
Like CBG, I'm sorry for any damage I've done to your market. That was not my goal; my goal was and still is to protect your market, MSE, and ignorant buyers.
I just can't accept that ceasing to report users who are violating these laws is an acceptable solution. Ignoring a problem is never the answer.
My Moderator Helpdesk| My Custom Set List | My MSE Template HostingBeers Tasted: 113 | Last Beer Sampled: Flying Dog Horn Dog Barley Wine Ale
Incidentally, WotC can be contacted directly about counterfeit cards. They'll take legal action against individuals like this directly. Has anyone gone this route?
To speak to Catherine-
Good question! Amy is able to do what she does because, if I remember correctly, the work she has done for WotC was done before the newer artist agreement, so she technically owns 100% of the intellectual rights to the art she did for the cards. WotC simply had a licence to reuse it for a while.
If I remember correctly, the new agreement is exactly the other way around, with Wizards owning the art rights, and the artist able to enact a 'fair use' clause.
Could be a little mistaken, though.
--->DJ
Me: I have been painting additional art onto Magic the Gathering cards and then selling them online. I am not painting another copywrightted or trademarked image onto the cards. The cards are authentic Magic the Gathering cards. They have just been altered with additional artwork that is completely my own. Is there an infringement of rights?
Thank you for contacting Just Answer. I look forward to assisting you.
Lawyer: You are creating what is called a "derivative work" from the Magic the Gathering cards. A derivative work is a work that is based on an original work — for example, the Harry Potter movies are derivative works of the Harry Potter books.
Derivative works are an amalgam of rights. The copyright in the original work belongs to the original author: in this case, to the Magic the Gathering artist; however, copyright in the additions to the original work belong to the creator of the additions, in this case, to you.
Section 102 of US Title 17 defines the subject matter covered by copyright:
"Sec. 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work."
So far, so good. Works of authorship are defined. They include artwork. Copyright law applies.
Section 103 of that same title specifically discussed derivative works.
"(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a work
employing preexisting material in which copyright subsists does not
extend to any part of the work in which such material has been used
unlawfully.
(b) The copyright in a compilation or derivative work extends only
to the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material."
However, copyright does NOT attach to any work created unlawfully. This tells us that we must look further to determine whether there is some law against the creation of derivative works. That leads us to 17 USC 106, which says:
"Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission."
Oops. Derivative works are listed as being a right exclusively reserved for the copyright holder of the original work.
Sorry; your artwork infringes the cards' copyright.
Nancy Delain, Esq.
Patent Attorney/Attorney at Law
Schenectady, NY
Me: What if the work that I am painting onto the card has nothing to do with the original image or the original image is completely painted over effectively using the cards as simply a canvas. I also found this:
US Copyright Office Circular 14: Derivative Works notes that:
A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.
This and your harry potter example seems to indicate that a derivative work is a physically different work itself that contains elements of the work it is derived from. My altered cards are not "new works". They are only customized. Also, normally I change a very small percentage of the card and certainly not enough to be considered a new product. The "Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes." statement should apply here I think.
Thank you for your answer. I am not trying to argue. I just need to check every angle possible because I have been relying on this for income and ebay has recently taken down all altered Magic the Gathering listings after allowing them for years. Thank you for your help.
Lawyer: Questions are fine, as is bringing up new points. I love communicating with people who educate themselves and thereby challenge me, so this is great!
Hmmm. Ebay as copyright police. That's just scary, but you're not the first person from whom I have heard something like this. One of my private clients posted video to YouTube and had it yanked for copyright. It was her own video, taken by her with her own camera. The big sites are careful to the point of overzealousness to protect themselves from suit. I'm sorry that happened to you.
A derivative work is a work based on the original work. Thus, if someone broke into the Louvre and painted a handlebar moustache on Mona Lisa and rearranged her background so that she appears larger on the right than on the left (at this moment, she is larger on the left), that would technically be a "derivative work" (it would also be vandalism and punishable under French law). A derivative work does not need to be separate from the original work, especially in the artistic realm.
Also, artists have extra rights, over and above the rights granted to, say, authors of books. An artist can enforce against change to his original work regardless of who owns that work. That does not apply to you, though since you don't own the original work. The cards on which you are painting are actually reproductions of an original work; you don't have the canvas on which the original artwork for the card was made. In that sense, your paintings are separate pieces from the original. The artist cannot use these extra rights to enforce against what you've been doing, if I understand correctly what you've been doing.
If you use the card simply as a canvas and paint completely over the original image, that is copyright to you. The card is just the substrate, as would be an ordinary blank canvas bought at the art store.
If your modifications are so minor as to not make a substantive difference in the original work, there's no problem since you are essentially selling the original card, which you own. It's the area of more substantive change, where you HAVE created a new work out of the old, that gets people into trouble. There is no bright line between non-substantive difference and substantive difference, especially in the world of art. Just painting that handlebar moustache on Mona Lisa would likely be considered a "substantive" change since it would change the characteristics of the original painting by interfering with her Mona Lisa smile. Adding even the most complex extra aliens into the bar scene in Star Wars IV may not be considered a substantive change since that derives from but does not really noticeably change the original work.
Money does not enter into copyright considerations. If the original artist wanted to go after you, s/he would have to prove only two things: (1) a valid copyright exists; and (2) there also exists a "substantially similar" copy. That's it. No profits or damages need be proved to win a copyright lawsuit. Profits and damages come in when asking for remedies to the original finding of infringement.
Pichoro,
Since you are a Wizards employee perhaps you could help we artists that are doing work that Wizards would approve of get written consent to continue supporting wizards secondary market with quality alterations on authentic Magic the Gathering cards. I'm sure most of us would agree to provide samples of our work for approval.
Thank you for any assistance you can render.
Michael
Remember, magic should only consume 95% of your time and resources. Life's better when you find the right balance.
-Dancingdragon
Click hereto see my cards for sale.
But to be honest, I guess I am a little hypocritical. We violate WotC's trademarks by redistributing their images as a template for MSE, in the same way that they are violated by the psd's that exist in this very forum. But we specifically do not condone proxying or counterfeiting. Any thread that exists in our forum about proxying or otherwise re-making real cards is immediately locked; the only exception is a couple reprints that a user may put in a custom set.
So, for the good of my hobby (MSE), I stand firmly against those who proxy and counterfeit. On the other hand; I support what you guys do. While I haven't ever bought, I enjoy looking at. I rather enjoyed the couple of yours that I've seen, dancingdragon.
All in all, I don't imagine I'll be much help to you with WotC. I'm probably not one of their favorite people.
My Moderator Helpdesk| My Custom Set List | My MSE Template HostingBeers Tasted: 113 | Last Beer Sampled: Flying Dog Horn Dog Barley Wine Ale
This is the part that interests me. If we take into example a newer piece of artwork, created under the new agreement, Wizards owns the copyright. They therefore have say. (Also, the basic things like borderless alterations become very much a violation of copyright law here...) It seems that if Wizards makes available a statement saying that they condone alterations, we'd be set. (Assuming they do feel that way.)
However, what isn't clear is whether the artist has any legal say either in a case like this. Would we need both?
--->DJ
Absolutely not. The original artist can only enforce copyright or moral rights in a case were the original piece was modified. Not where a copy was modified. Also, that particular right is a right reserved for artists only, not the owner, copyright holder or the producer of the product. So, nobody can enforce copyright against someone painting on an authentic magic card as long as what is being painted is not copyrighted itself. However, this is probably being seen as a grey area at best by ebay. They are not likely to change there stance unless there is written permission by either WoTC or a court.
My bad.
Come on man, Double posting? -ChKl
Remember, magic should only consume 95% of your time and resources. Life's better when you find the right balance.
-Dancingdragon
Click hereto see my cards for sale.
You are slightly confused. It is perfectly within Ebay's rights to ban a certain type of auction. There is no written policy of ebay's specifically pointing out MTG, nor does there need to be. If they deem it copyright infringement, it is covered under that.
"Second-If MTG cards can be sold at all, if customized products can be sold at all, and finally, if a piece of art(non MTG related) depicting scantily clad women can be sold at all; then an authentic MTG card with a non-copyright-infringing scantily clad woman painted or printed on it can be sold." Not entirely true. You're jumping to the end, and leaving out a few points. You still have to not be infringing the copyright. I will go out on limb here and assume WOTC retains the rights to the images on the cards, and they obtained those through their agreements with the artists when they purchased their work. In this case, WOTC must be the one to claim the copyright infringement. If they have discussed this with Ebay, and feel that the alterations are indeed copyright infringement, it is well within ebay's rights to agree not to sell them.
I ask you to show me a law that says a company MUST allow anyone to sell anything. If you can not, I ask how you can say ebay MUST allow the sale of said items, even if the said items individually differ. For example, custom work can vary greatly. Some of it may infringe copyrights, some may not. Custom Magic Cards are different than say, Custom Choppers. One alters work, one takes work and makes it original. The printing of pictures just on to a card obviously is using WOTC's copyrighted work, and would be violating copyright laws.
I do agree they can not ban an individual user for it, and not others, however you have no way to show whether or not they are doing this. If you get reported for it, and someone else does not, ebay may not even know it exists. Technically, it's not really breaking any rules, at least in the form of dealing out a consequence, unless you get caught. The man robbing the bank who got caught can not complain to the court that the other man who did not get caught is not doing time. See the difference?
I hope this clears up some of the misunderstanding involving this topic.
Even the original artist can be taken down for copyright infringement. Especially if said copyright now belongs to someone else, such as WOTC.
You can plagarize yourself too.
Maybe it's a good sign though? Drama-llama behind us and all?
As long as no one starts up another reporting war you'll see smooth sailing from here on out.
I'm interested to see what else people find out from WotC too.
I wouldn't expect much from WOTC, I don't think they will ever openly condone altered cards (even if privately they do condone them) because it is too dangerous for them to do so. If they issue a statement someone will find a loophole in it and use it to sell fakes or some such, and once a precedent is set they will be screwed. So don't hold your breath...
~Tyorl Nightwind, Mirewood Ranger
~Banner by Tawnos
Has she been able to get anything listed for anything after Mirage? My understanding of the situation with that is that the early artwork, before Mirage, was licensed by WotC with per-printing and/or per-copy fees paid. Later art had all rights purchased by WotC. This is what caused WotC to have to make royalty payments to artists when their early art was reprinted later on. This is why Seventh Edition had all new art. This may also be why Amy Weber can get things relisted — she probably still owns the rights to her early art and proved it to eBay.
Can you PM me contact information for that lawyer? I'd like to have a talk with him. Some of what he's saying doesn't mesh well with my understanding of the Copyright Act, and I'd like to make sure I understand how all of these things work in relation to altered cards and Market Street.
That's France. French copyright law is so complicated and nonsensical (not to mention written in French) that I'm surprised anyone can understand it, let alone enforce it.
https://twitch.tv/annorax10 (classic retro speedruns & occasional MTGO/MTGA screwaround streams)
https://twitch.tv/SwiftorCasino (yes, my team and I run live dealer games for the baldman using his channel points as chips)
I noticed a questionable auction on ebay, and am debating wheither or not to report it.
http://cgi.ebay.ph/Cute-MTG-4x-Silence-Altered-Art-M10_W0QQitemZ130319023117QQcmdZViewItemQQptZLH_DefaultDomain_0?hash=item1e579e7c0d&_trksid=p3911.c0.m14&_trkparms=65%3A12%7C66%3A2%7C39%3A1%7C72%3A833%7C293%3A1%7C294%3A50
http://cgi.ebay.ph/Cute-MTG-4x-Liliana-Vess-Altered-Art-M10_W0QQitemZ130319023681QQcmdZViewItemQQptZLH_DefaultDomain_0?hash=item1e579e7e41&_trksid=p3911.c0.m14&_trkparms=65%3A12%7C66%3A2%7C39%3A1%7C72%3A833%7C293%3A1%7C294%3A50#ebayphotohosting
~Center of the Gaming Universe~
Microsuck
Turning a blind eye to problems like this doesn't make things alright. It means that that user gets to keep taking advantage of people if they're really fake (which they probably are). And it makes those who do the good stuff look bad.
My Moderator Helpdesk| My Custom Set List | My MSE Template HostingBeers Tasted: 113 | Last Beer Sampled: Flying Dog Horn Dog Barley Wine Ale
On top of being (probably) counterfit, it's also using the official art from an online mmorpg.
But I can tell from the styles that she doesn't do her own cards. This seller is just printing and pasting images she stole from the internet and selling these fake/proxie cards en-masse for $10-$20 for a playset. Its really disgraceful to the altered art community...
Custom Set: Pokemon: Generation 1
My mind numbing DC-10 stack!
Although nothing is finalized, I think I talked her out of selling printed "proxy"/forgery cards. I'm also trying to talk her out of selling tokens using other people's art without permission, but I'll take my wins where I can get them.
Custom Set: Pokemon: Generation 1
My mind numbing DC-10 stack!
Custom Set: Pokemon: Generation 1
My mind numbing DC-10 stack!
Ever since then, I've been reporting her auctions, almost fanatically, but Ebay seemed to have turned a blind eye to such blatant infringement. Why did I do it? I have been following this thread and the altered art thread and although I'm no artist myself, I do value the works produced.
I had a short correspondence with her, which was not pleasant (understandably since I told her I did report her), and she went ballistic, claiming I had ruined the altered community. She pulled a lot of names then, saying she was friends with laura, dereck and etc. It was amusing cause I remembered reading that cardkitty did report her auctions as well
After that, she took me on a guilt trip and gave me a sob tale about how her parents had passed away in a tragic accident, and she and her grandma had to depend on this as her only source of income. And yea, she said her hand was injured too. That was back in June 8th. I still have the emo piece of email sitting in my gmail account.
This ebayer, pufferfish2513, has another account which sells counterfeit mtg cards as well.
This is her alternate account
http://myworld.ebay.com/evelynyue0311/
This is the recent Pithing Needle auction by evelynyue0311
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=250462612034
This is the recent Platinum Angel auction by evelynyue0311
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=250460059243
If you go to this photobucket account, you can see the images there, and behold whose account does this belong to?
http://s727.photobucket.com/albums/ww272/pufferfish2513/?start=20
And if you check their feedback, evelynyue0311 and pufferfish2513 left postive feedback for each other.
@Kitsunewarlock. I've went through her feedback a couple of times but found nothing to suggest that she did alteration with paint before. Which ones were you looking at?
I thought I saw some (poorly done) random anime girls on islands a while back. In retrospect (I'm running on VERY little sleep this last week, though), I don't see it.
She is starting to make me angry though. She hasn't taken down any of her counterfeit cards. I'm fine with selling altered cards on ebay...but counter-feit cards like her Merfolk Sovereigns are a gyp. The fact she's trying to sell (and, in many cases, suceeding) 4 tokens for $10 and $20 is ludacious as well. I considered printing out 180 tokens for my close personal in-real-life friends for ~$10 just to cover the expense of printing, but didn't due to the moral consequences of stealing random (albeit creditted) artwork. She doesn't even seem to care...
She apparently justified this criminal behavior with "the sheer number of hours it took me to edit these cards in photoshop". Even if that were true, most of her alters are of pretty low quality and finding things like the proper fonts are but a google search away. The fact she doesn't explain clearly in her auctions they are fake cards bugs the heck out of me too. I understand that they are illegal either way...it just adds insult to injury.
PS: Looking through again, I don't know where I saw altered islands. I must have been looking at another random printer-seller on ebay who used to do alters and assumed it was the same person...
Furthermore: He/She told me they would only sell tokens from now on. While this is still illegal and I frowned upon it, it should impact the altered art community much less. Does anyone here really sell custom tokens? Feel free to throw a fish-tied-to-a-brick at me if I'm wrong.
In other news, I'm almost confident enuogh to sell my own acryllic alters on ebay? Now to see if I'm actually wiling to part with my own work ToT
Custom Set: Pokemon: Generation 1
My mind numbing DC-10 stack!
Elspeth 1 (Says "Like Proxy" you be the judge). No problem just magnifying glass around the text box. You've mentioned this seller, so we can assume this is just a print out.
Proxy Elspeth different seller.
Elspeth 2 (This one actually claims to be Proxy)
The problem is of course the title "Customized Elspeth, Knight MTG Altered Extended Art x4".
Every 4 completed auctions is one of these.
I have always understood Altered Art, meaning you took a real card and changed it up somehow to be ok, even if you are erasing all but the Nameplate on a $15 rare and printing over the rest.
Most people feel that if you print, or have commissioned proxies for personal use (to playtest w/out beating your power for instance, or 10 proxie vintage tournaments) to be ok. Wizards of course does not.
Wizards cannot regulate the use of tokens. Anything that doesn't have a MTG card back can represent a token.
eBay has a policy that prohibits the sale of "fakes" which has always included proxy cards, but not things like Artist Proofs as long as they are labeled correctly as art.
Honestly I think wizards has aggrivated this problem with "textless" reward cards, but that's my personal oppinion. I know a LOT of people who enjoy them. I think they should do another series of lands - perhaps original duals
http://cgi.ebay.com/MTG-4x-Elspeth-Knight-Errant-Altered-Art_W0QQitemZ130321891626QQcmdZViewItemQQptZLH_DefaultDomain_0?hash=item1e57ca412a&_trksid=p3286.c0.m14
http://cgi.ebay.com/MTG-4x-Honor-of-the-Pure-Altered-Extended-Art_W0QQitemZ130321899770QQcmdZViewItemQQptZLH_DefaultDomain_0?hash=item1e57ca60fa&_trksid=p3286.c0.m14
Don't just sit there! Report her!! I know I did
Side note: noticed that RanMn is selling this ***, and i remembered that Bigup was the first one who came up with the idea. When RanMn followed, he claimed that it was to prove his statement that it looks good on a crisp white background and he wasn't going to sell it. Well, he's selling his second piece already.