Is doing USD art commissions allowed on FFXIV?

[alimdia]

Sorry sarehptar, but copyright laws are very explicit about the right to create derivative works belonging to the copyright owner, this is not my opinion, it's a fact.

Right to Prepare Derivative Works

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.

https://www.copyright.gov/circs/circ14.pdf

Fair use here is an exception that can be validated by a judge, you can't say clear cut that commercializing derivative works of someone else's copyright is fair use.

That said, there's another factor that supports fan art as more likely to be fair use, which is the transformative factor. The more transformative is the derivative work the less other factors will weight, and fan art tends to be different enough from the 3D models this game uses that a fair use claim would likely hold even if it's being commercialized.

[sarehptar]

Fair use here is an exception that can be validated by a judge.

I mean, I appreciate that you have a source, but I think you've maybe missed/misread some of the things I said.

Just to address the question of fair use even though it's beside the point now anyway: Lenz v. the Universal Music Group in the 9th District Court of Appeals in 2015 determined that fair use was not just an exception to be validated by a judge but an authorized right that was a direct part of the Copyright Act of 1976, meaning it is a right that exists before, during, and after the creation of a transformational/derivative work and you do not need to seek the copyright holder's permission to do something you believe is covered by fair use.

Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused — this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.

Mostly putting aside the question of whether or not fan art even legally counts as "adaptation"... (At least as far as I am aware, copyright law traditionally labels adaptation as the literal modification of an existing work, i.e. translating a story into a new language, making a direct copy of someone's painting, or sampling a song inside another song. I.e., adaptation would be taking a screen cap of someone's character from this game and photoshopping it, but fan art may or may not be different/transformational enough to not qualify as adaptation in the first place, which is what I already noted.)

You can't say clear cut that commercializing derivative works of someone else's copyright is fair use.

I literally never said this in any post. What I stated repeatedly was that the creation of fan art and transformational works was not inherently bad, which is the problem I had with your original post (because it seemed to suggest that the mere act of creating fan art was "bad" in and of itself). But in my post right before yours, I also explicitly stated that "The selling of fanart is a grey area." I've not suggested anywhere that commercializing fan art isn't questionable; I only noted exactly what you say below, that fan art may be commercialized and still pass fair use if it's sufficiently transformational and not a hazard to the profit of the original creator.

That said, there's another factor that supports fan art as more likely to be fair use, which is the transformative factor. The more transformative is the derivative work the less other factors will weight, and fan art tends to be different enough from the 3D models this game uses that a fair use claim would likely hold even if it's being commercialized.

This is what I've been saying the whole time. XD