What Is Derivative Design?

What is "derivative design"? I've had some irritated emails demanding that I explain in plain English what I mean by that phrase, although I think I do that in my Terms of Use. Please note that my Terms of Use are virtually the same as those cited for a large scrapbooking website, Blushbutter.com, in it's Terms of Use page. So, here is one really big scrapbooking website that thoroughly understands what "derivative design" means and our TOUs are exactly the same.

Here is an original product based on digital painting of flowers: Calla Lilies VI". Someone who purchased this product could incorporate the floral images into a background or add them as an embellishment to another design element (like a frame) making it into a "derivative design" because it "derived" from -or was made from - the original work. Or groups of these floral images could be combined in print compositions: also "derivative designs". Or any of these images could be used in advertising or print packaging work or a website design and thus become a "derivative design". These images have been used to create large canvases for interior decor at ImageKind - "derivative design". The individual flowers could be used to embellish frames or tags and thus create a "derivative design element". There are infinite ways these flowers can and have been used in backgrounds and as embellishments without being simply resold, as is. I have happily sold hundreds of copies of this product. But for someone to repackage the individual images, as is, and resell them under their own name is illegal redistribution, pure and simple.

I also create derivative designs based on original work of others. Here is an example of one of my own derivative designs, created from legally licensed black and white Dover line art and 3d models and Photoshop brushes: my product, "Keys to My Heart". As you can see, I've combined and transformed all the resources I used in such a way that none of them can be extracted in their original form and they have become an original product that is uniquely my own. The conception is mine; I took the resources and made something new out of them. Furthermore, customers who have licensed this derivative design have been able to turn it, in turn, into their own derivative designs. I've seen lots of uses to which these design elements have been put: as embellishments in scrapbooking kits, as elements in background papers, collages, print packaging, advertising, a variety of things.

The concept of "derivative design" is that you take a resource (call this the original resource) and make something new out of it (call this the new "derivative" design because it's "derived" from something else) so that the original resource can no longer be extracted from the new design and passed on somebody else. You have put your stamp on it, it has been irrevocably changed by your own design purposes and it is no longer what it was. Anybody else who wants to work with that original design still has to go buy that work from the original author. This is a key point in the marketplace that protect the labor of everybody at each stage.

Yes, it can get kind of technical and you have to actually think about it a bit. Sorry, it does take thought and mistakes can be made. Mistakes can be corrected and they're not so bad. Some mistakes, however, are bigger than others. One of the biggest mistakes is taking original work, making no alternation whatsoever, and simply selling it, as is, under another name. That is called "resale" or "redistribution". There is, in this case, no additional design involved, no added value, no additional work, nothing but but simple fraud and rip off of the original work and the labor of the original artist/designer. In this case, nothing has been "derived" from the original design.

Not everybody will create something completely new out of original image resources, but the concept of "derivative design" is to try to turn the design resources into something that has a new variation and isn't exactly the same resource that was licensed in the first place. The key thing is not to reissue the design resources as they were originally received.

One thing that would be different here is if you were doing a tutorial, in which case you are allowed to sell the product of your tutorial. The final product of a tutorial might well look a lot like the original tutorial example but will not really be the original tutorial product.You can sell the product of a tutorial but you can not resell the tutorial itself or the examples that were provided in the tutorial. Get it? So the concept remains the same: you can not resell the original digital design product, as is. Unless, of course, you have explicit permission, in the form of an extended license.

And . . .if you look at the readme file which is linked to the product description and attached in the zipfile itself, it shows that I have accounted for everything I have legally licensed in the making of the product. That helps to reassure the customer that they are secure in buying a product they can use in turn, that their copyright is secure.

This is the appropriate use of image resources to create derivative designs. This is what makes the world of design go round and round: artists and designers use image resources creatively to generate more resources every day. But they do so ethically and creatively and thereby enable one another to produce useful products and income for one another without exploiting each other's labor and good will. They pay the licensing fees and observe the Terms of Use to the best of their ability. It is also permitted to render 3d products and sell the 2d renders but not to sell the original 2d objects or their 2d texture maps.

Going through my store anybody can find tons of examples of things I digitally painted myself and also lots of examples of derivative designs using black and white lineart as a base or 3d renders as a base, and crediting various design resources in my readme files, linked in the product descriptions. In this way anybody can quickly find endless examples of what "derivative design" means and what is permissible. The use of graphics in webdesign: also "derivative design". The use of graphics in print composition: "derivative design". I do not think that the term "derivative design" is hard to grasp, really. I think someone must be pulling my leg when they claim not to understand it.

Some artists/designers will have a more or less restrictive view of what others may do with their designs and you have to check their license to know what is permitted. But one thing that is NOT generally permissible is to simply repackage and resell the original files from someone else's work, as is, as if it were your own, without any additional, value added design input. That's self evident, no?

Derivative design is usually permitted under the TOU of many graphics licenses. Creatively using resources is assumed artisticly. Simple resale is almost universally unethical and illegal and exploitive.

4-16-2009

It's not like it's hard to find my Terms of Use and License. There's a link, in bold, underneath every product description in my store, where it says: View Jaguarwoman's License and Terms of Use Here. Anybody getting ready to put something in their shopping cart has to scroll right by that link before viewing the product images and clicking on the "Buy" button.

And . . .my Terms of Use are kinda standard in this industry. A lot of my colleagues actually modelled their Terms of Use on mine, LOL. Why? Because they make sense and I was one of the early practitioners. They're generous in order to allow the widest possible use without shooting myself in the foot. About the only thing they don't permit is that the buyer actually resell the actual files so that the original design product competes with itself in the marketplace and thereby deprived the original artist of potential income from their labor.

Designers/artists who make a living by digitally painting or rendering artwork and design elements want people to buy and use their work (legally) as much as possible. Oh yeah! That's how we make a living! This isn't my hobby. This is my full time business: licensing graphics to other designers who will incorporate the image resources into their derivative designs for fun and/or to make some money for themselves as well!!!!! I definitely want my customers to use and enjoy the graphics.

But it really really bites when someone simply takes the products and repackages them, as is, to resell or redistribute illegally, as though it were their own product, without adding any design input or work of their own and in a way that makes them available, as is, to be passed on infinitely to the rest of the world, from hand to hand. Ouch!!!!! Suddenly my warm, fuzzy generous feeling changes.

There are many little copyright mistakes that just about anybody could make and that most artists don't even bother to pursue. Who has the time? Oh, there are plenty of little inconsiderate oversights of failing to credit somebody. Or there are disputes over the appropriateness of specific usages and how derivative derivative design should be, how much copying should be permitted. Anybody could make mistakes. Then there are great big awful blatantly exploitive offenses that undeniably takes the hard earned bread right out of other people's mouths. Outright resale is one of those cases. Simple resale of original resources is the worst case scenario. And yet, when you catch people at resale/redistribution, they (and their supporters) are invariably wounded in their pride. What's "resale"? I had no idea this was wrong! You mean I can't do this? Are you sure you told me? Oh for crying out loud, don't be so rude about it! Ah geez, grow up and quitcherwhinin!!!!!!

They don't want to be told that they cannot take someone else's work and resell it under their name. It's fraud. And that is essentially the only thing that is not permitted by my Terms of Use, other than filesharing on pirating websites. Customers can not repackage my design elements, as is, put their name on it, and resell them as a new product. I think that is more than fair as a copyright restriction. I am absolutely certain there are few customers who would argue with that limitation. Anybody who does reselling like this will find that I confront them openly and relentlessly, then legally if necessary, until I feel I have made my point. I must. My livelihood depends on it.

There are plenty of things I would walk away from. But blatant resale/redistribution is not one of them. Anyway, I'm pretty much a genetically-endowed and professionally trained confronter and as direct as an arrow. I'd feel sorry for anybody on the other end of a confrontation with me.

4-15-2009

Scrapbooking Terms of Use . . .explained yet again.

Once again I've had one of those encounters with an innocent babe-in-the-woods scrapbooking designer without a clue that it is not permitted to take somebody's products, repackage them, and resell them as their own product. So I'm going to try again to explain the Terms of Use for my work for digital scrapbooking design.

Scrapbooking designers ARE permitted to use my design elements to create digital scrapbooking kits for personal and commercial use BUT the elements MUST be incorporated into a DERIVATIVE DESIGN of their own in some way and the individual elements MUST be merged with their own design elements, i.e., merged into a background paper, frame, tag, or other type of embellishment so that the original Jaguarwoman design element is not provided in it's original and easily extractable form, on a transparent background, such that it can be, in turn, simply passed along and resold to be used as the original design resource by someone else. I do feel that this is very clearly explained in my existing TOU and license, to which I refer anybody who asks for clarification by email. Most of the time, I repeat the same thing I just said in the foregoing sentences, as though repetition could get the job done.

I think this is perfectly fair and preserves the original intent of the "design resource". The concept here is to provide maximum creative use to the designer/customer while protecting the original artist/seller from unfair market competition and preserving the original artists copyright control. Otherwise, the original producer would find no value in the hard work of creating the product, only to see it repackaged and redistributed endlessly by others. If you have heard that I do not permit scrapbooking designers to use my work to create kits for personal or commercial use, this is NOT CORRECT. What I do not permit is for my work to simply be be repackaged, as is, and resold under another name. That is called redistribution, or copyright violation, or piracy.

There are tons of wonderful scrapbook designers who create their own fabulous products and also use design elements of 2d and 3d artists in their digital scrapbooking designs. One of my absolute favorite scrapbook designers, who uses many of my design elements just beautifully is Blushbutter.com. This is somebody who really knows how to take design elements and turn them into something completely new. If any digital scrapbookers want an example of how to totally transform somebody's design elements into a completely new creative vision, here it is! This designer never runs out of ideas and doesn't need to just throw pieces of art in a zipfile and call a "scrapbooking kit". She makes real kits. Drop dead gorgeous kits. She literally can make design elements into her own new design. THIS IS THE CONCEPT OF DERIVATIVE DESIGN AT WORK.

I sell my design elements to many, many scrapbooking designers who know how to put the design elements to work for them. The scrapbooking designer/licensee reasonably has to do some actual design work with the design resources they have licensed. Rather than just toss a bunch of images together into a package and call that a "scrapbook kit", it's a reasonable expectation that every scrapbooking designer would do some actual designing to come up with a derivative design of their own using licensed design resources. Most of them do. And . . .there may be some artists who do permit scrapbooking designers to resell their design elements and/or who may also have an extended license with a higher price for resale of design elements in scrapbooking kits. That's also a possibility. But I do not. So I recognize when I see that my work is simply being resold, as is.

I cannot permit customers to resell or redistribute my work in any store, under any circumstance. It endangers my livelihood. It also doesn't matter what a nice girl/woman/man they may be. Anybody who may be doing it will have to stop doing it and wise up and just do the normal amount of design work to make a buck or a bunch of friends in this endeavor.

Further, every brokerage/store has a responsibility to police it's own stable of designer/Vendors. Don't believe for a minute any claim that a store owner is not responsible for what it's designers are doing. The store owner can require that each designer provide something called an "Ownership Statement" for every product they upload to the store, in which they are required to account for every item in the zipfile. I have done as much myself for years when I brokered products at Renderosity.com, where every Vendor had to account for every pixel they did not create themselves (oh yes!), so that the copyright purity of every product was protected for the sake of the customers and the store. This is what the industry had to do to protect itself. If you look at the readme file of 98% of my own products in my own store you will find a list of resources for everything I have licensed which was used in creating the product. No kidding. Lotsa work I've done to account for my own products and protect my own customers. When I make mistakes related to copyright (and I have) I have to correct them. In my own store, I have to stand behind every single product. So does every store owner.

Sure, the digital scrapbooking industry might have to do the same thing to police itself. Why not? It would have saved some people a whole lot of grief yesterday. It would be important for the online scrapbooking world to do this because, since I sell to so many scrapbookers, and since my work is so recognizable, when my copyright is abused, scrapbookers are among the first to notify me. My own customers are my early warning system because they are the ones who are in the digital scrapbooking stores themselves and come back and notify me of what they are seeing.

I confront publicly because I'm ripped off publicly and I'm a working class artist and legal action costs a whole lot of time and money. Very few individual artists can afford to send an attorney out to protect themselves. And of course . . .typically, when I publicly confront yet another individual who is reselling my work . . . the defensive outcry of their personal social group is weirdly ironic. Their friends actually call me (if I'm lucky) names like Devil Woman, and some swear to get even and ask why anybody would want to buy my products anyway, since I am so evil to attack such a sweet person who is making such wonderful products for them (actually my products, LOL). After I get over convulsing with hysterical laughter, I remember I've got some work to do because, after all, I still have to make a living the old fashioned way. I can't just buy up some products from somebody and repackage them and resell them somewhere, eh?

Well . . . I don't think I can. I don't think it's allowed. I think it's, uh . . .illegal, yeah?