Fan Art is Coming! Fan Art Is Coming!

In preparation for hosting fanart on the AO3 (that is, you will soon be able to upload art directly to our servers and not just link it from elsewhere), we are revising the official Terms of Service and our FAQ!

As always, we actively seek and very much appreciate feedback on all archive policies. The coding for fanart is still underway, and there is time to make changes, so if there’s anything in this draft that concerns you, please let us know.

Here are the proposed additions to the FAQ:

* When can I use pictures I have made on the archive?

The basic rule is that a fanwork based on an existing work should be transformative. Transformation means adding something new, in meaning or message, to the original. We consider that fanart, like fan fiction, is generally transformative. Please remember that the ratings and warnings policies apply to images.

You can also use pictures you’ve made to complement a fanwork–so, if you are illustrating a story, you can use illustrations of the setting, the original characters, or anything else that fits with the story, as long as you otherwise follow the content policy.

We do not allow sexually explicit photos of minors, nor images manipulated so that they look like sexually explicit photos of minors (even if the manipulation is obvious). This is necessary for us to comply with US law, which has special rules for photographs and video of human beings under age 18. In addition, under Section IV.H of the Terms of Service, we may remove content, including photos or drawings, when we determine that it is necessary to resolve a threatened or pending lawsuit. We will not screen or ban images for offensiveness.

* When can I use existing (nonmanipulated) pictures in my fanworks on the archive?

The basic rule is that a fanwork should be transformative. Transformation means adding something new, in meaning or message, to the original. Existing works, including pictures, can be part of a transformative work. Please remember that the ratings and warnings policies apply to images.

When you’re using an existing picture, commentary and critique are particularly favored kinds of transformativeness. A use that highlights the way that framing, angle, or other pictorial elements affect the pictures’ meaning; a use that draws attention to the roles of different people in the pictures; and a use that contrasts different pictures are all examples of potential transformation. Humor can also be transformative: unlikely subtitles may change the meaning of the picture substantially. Commentary can be explicit or implicit, as when it’s done by pointed contrasts between images, where the use of a picture recontextualizes it and gives it new meaning.

The number of pictures should be appropriate to the purpose: if you’re illustrating the relationship of a character’s costumes to her story arc, then you are likely to need more pictures than if you merely want to introduce the character so your audience knows what s/he looks like.

Where possible, credit or attribution to the original source of your image is also helpful.

We have drawn on the American University Center for Social Media’s Code of Best Practices in Fair Use for Online Video in our discussion here. You may find a full copy of the code here http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-video if you want to see more detailed discussion and examples, though they are focused on video.

* When can I use pictures in my skins on the archive?

We generally consider skins containing pictures to be fanworks, so please follow the guidelines in the sections above. In addition, since skins are created by individual users, the OTW does not endorse particular skins in any way. We do screen public skins for technical compliance, to limit the proliferation of public skins in order to keep the public skins feature usable for other people, and for obvious violations of the content policy, but it’s the user’s responsibility to make sure a skin complies.

You can use pictures you’ve made for skins, even if they aren’t fanworks, as long as you otherwise follow the content policy–e.g., you can use a picture of the view from your window.

You can put attributions for images in your skins into a comment like this:

/* This image comes from SOURCE and is used here for INSERT TRANSFORMATIVE PURPOSE */
header { background: url(http://url/of/image.jpg); }

Here is the current text in the Terms of Service about user icons, which are the only artworks currently on the archive:

J. User Icons

User icons should be appropriate for general audiences. They should not contain depictions of genital nudity or explicit sexual activity. For more information, please refer to the ToS FAQ.

Here is the proposed new text of the Terms of Service for our new expanded set of artwork:

J. Images

A. User icons

User icons should be appropriate for general audiences. They should not contain depictions of genital nudity or explicit sexual activity. For more information, please refer to the ToS FAQ.

B. Other images

Other images are subject to the general content policy, including the ratings and warnings policy. No sexually explicit photographs of minors (people under age 18) or sexually explicit photomanipulations that appear to be pictures of minors (people under age 18) are allowed. For more information, please refer to the ToS FAQ.

Relatedly, we propose to delete the last paragraph of Section IV.D, which currently reads:

Please note that the first version of the Archive will only host text and user icons. Future policies will focus on other media.

8 thoughts on “Fan Art is Coming! Fan Art Is Coming!

  1. First: Yay, for fanart!

    I do have policy questions: Other art sites, for example deviantArt, have policies regarding model release forms, and that they may ask for them, and give a sample document and such, also to educate users about the potential pitfalls of publishing images of another person. Will AO3 have something like that?

    Also, will you explain what is considered “sexually explicit” wrt minors further in your rules? I’m just wondering because dA for example clarifies on in their FAQ in fairly detailed bullet point lists what exactly they mean by that and what can not be shown with children and teenagers, for example they have instructions against topless nudity of female children/teenagers between 2 and 18, against any genital area shown with children also under 2, explanations forbidding lingerie on teenagers and so on and so forth and are fairly clear in the instructions (see http://help.deviantart.com/249/), rather than just using a vague term like “sexually explicit”

    And then I have a fannish etiquette question. The part about uploading existing, nonmanipulated pictures sounds like the archive would consider it fair use/transformative for a fan to upload another fan’s art to illustrate their story because they think it fits how they imagine their character. Or someone could upload my art and then mock it in text for humor effect and that would be transformative. Is that a correct interpretation?

    And if that is so, will be text considered under similar standards, i.e. could I just copy a significant portion of another fan’s story to accompany my art as well because I think it would be awesome if my picture had some text? Or is it just pictures that can be taken?

    1. Great questions all: I’m going to pass these on to content policy/legal for official answers!

      Unofficial thoughts:my guess is that they’d probably prefer not to specify “sexually explicit” wrt minors in photographs/manips but the DA policy is a good potential model should they decide they’d like to specify further. Vis a vis etiquette – I think you’re right to say that this IS etiquette (and not a legal question.) I’m pretty sure that part of the policy was intended for things like screencaps and picspams, but again my guess would be that if legally, fair use means you can transform copyrighted works, then that would apply to all works including fan works (and text, yes; consider things like remix which might well copy significant portions of text, and of course art could also incorporate large chunks of text: I can think of vids that do, for instance.) That being said, fannish etiquette in some communities is, as you say, different from what’s legal and I don’t know to what extent ConPol wants to or should make rules about it rather than deal with potential conflicts on a case by case basis, especially when fans have been good about enforcing etiquette themselves (preferring to ask permission for transformative collaborations like remix, podfic, illustration, big bang type fic-art challenges.) But these are good questions that deserve consideration.

      1. I realize that legally there probably is not much difference between a fan taking a copyrighted actor photo, and putting it in their story to illustrate the fantasy casting for their OC, and a fan taking my fanart drawing to illustrate their story, but they feel very different to me when I consider fannish behavior.

        And I think the way the policy of major archives are phrased and what they seem to endorse in their FAQ has an impact on what is considered appropriate fannish behavior, much like technology shapes etiquette and it’s not just etiquette that determines what is an acceptable use of technology. So IMO that should be considered when the policy is presented (e.g. what kind of examples may be given in an FAQ to illustrate what the common cases for this policy are meant).

        Also there should be some idea in the art policy whether for example as a fanartist I’d have a chance to make a case to abuse if someone else uploads my art with their story, or whether they’d just laugh at me for having quaint control issues and say that they go by strictly legal requirements and not policing fannish etiquette, and wish me good look trying to do a public shaming or whatever to stop this.

          1. I’d assumed that would be what applied if someone just uploaded a piece of fanart they didn’t make as standalone thing, whereas the “When can I use existing (nonmanipulated) pictures in my fanworks on the archive?” question seems a different scenario. I was thinking of something like, for example someone wants to cast their OCs, to help readers visualize, then does a google image search for pictures, and ends up grabbing for example not a promo picture of an the actor they have in mind, but a drawing another fan did of that actor in Jedi robes, because, hey, their OC is also a Jedi, so it’s perfect! And then they embed it in their new fanfic.

    2. Thanks for the questions! These are my initial reactions, and are not policy; we are collecting responses and will discuss them.

      On model releases: It’s unlikely that we’d do this. While model releases are quite useful for commercial work, noncommercial and transformative uses generally do not require releases.

      On further definitions: If we can find more detailed definitions that accurately reflect the U.S. legal standard, rather than rules that aren’t necessarily related to the law, we would be very likely to use them. Unfortunately, it’s not clear that we could do that.

      Except with respect to areas where U.S. law distinguishes between images and text (as it does with photos or video of human minors), we expect to treat every kind of fannish output the same.

  2. Maybe the plans aren’t this concrete yet, but I’m also wondering whether I’d be able to embed images I uploaded to the archive elsewhere, e.g. if I could show the image hosted on the archive in my journal, or whether such a thing would be disabled and images can only be seen here, or whether it would be a choice up to the artist to enable or disable embedding. Also whether the archive will provide embedding codes, for example dA offers an embedding thingie that allows a preview picture that leads back to the original for sharing, but plain hotlinking of images is impossible. (I also wonder if embedding will be possible whether you can the see something like that in the viewing stats.)

    1. This one is a technical question, and Content Policy isn’t making policy for technical issues like embedding. As I understand it, the answers will depend on what our servers can handle, and may change over time as we get more experience with the load fanart puts on the servers.

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