• Confic Magazine

The Legal History of SCP-173

Updated: Mar 9

Culture & Community

by Lack of Lepers





 
"This is where we came from, that free-wheeling primordial soup of the internet that isn't so focused on procedure as opposed to creation." — Sorts

Back in the day on 4chan’s /x/, creepypastas were commonly written to re-contextualize a spooky or obscure image. This is what happened with SCP-173, the original. Other images informed the earliest SCP examples, almost without exception. SCP-173's image—called "Untitled 2004" and now internet famous — was, like most things posted on 4chan in this way, not the poster’s to freely use.


But that’s not all. The image itself was a copyrighted photo of more copyrighted material; the statue. The statue commonly regarded as SCP-173 was a sculpture by Izumi Kato, and the image the intellectual property of the photographer Keisuke Yamamoto. So that’s a double whammy of copyright infringement when it was posted to 4chan’s /x/ as SCP-173. No one, certainly not the original author (Moto42), had the rights to reproduce it; no one thought anything would come of it either.


Then, the original SCP-173 was ported from 4chan to EditThis and to WikiDot where it was accidentally — that is to say, to the complete ignorance of everyone involved —  captured by the Creative Commons (By-Attribution, Share-Alike 3.0) license. Without realizing it, those who created the Wiki established (by a default setting) that such a license would be automatically applied to all content posted to it.


It is clear from numerous early O5 Command threads and until as late as 2013 that the founders and participants of the SCP Wiki did not understand this Creative Commons license that they inadvertently applied to all of the material on the site (see this article for extensive citations). The realization took years. In the early days, SCP Wiki staff suggested: housing an on-site store, selling exclusive merchandise, making a movie with exclusive rights, establishing an LLC, and even incorporating (i.e. SCP Inc.). All of these efforts flopped due to the intractable terms of the CC license which sealed in concrete (and rebar) the fate of the site’s content. SCP Staff even tried to change their entire CC license a few times...




… only to realize that once something is released as CC, it is forever released as CC. They couldn't claim exclusive rights to the material, and so none of these ideas could be carried out as imagined.


These clear signals of non-understanding (no one can blame them, this is a complicated topic) slow around the year 2012 and cease by 2013. Gradually, the staff understand that references to SCP material outside the site — including merch — needed to comport strictly to the CC license. Licensing discussion records show that the Creative Commons license was being enforced as early as September of 2012.


For context, 2012 was when the SCP-2000 contest was taking place, and was well after the SCP Wiki had received notable mainstream attention. So the implications slowly dawned on the staff, possibly to their terror. (Talk about fridge horror!) They had a sink-hole at the bottom of the Wiki, and veritable time bomb sitting within it. They had locked themselves in with this bomb, and thrown away the key. They thus worked diligently to find and remedy any and all CC license violations on the known internet regarding SCP material. But that was only taking care of the external world. The largest threat loomed within.


Around that time, members of Staff began reaching out to those whose claims of ownership could, as the result of these oversights, cause a lot of damage to the Wiki. They found Moto42, thanks to his initial stop by on WikiDot only days after the creation of the Wiki, and likely implored him to officially release the text of SCP-173 unto Creative Commons. There needed to be no legal dissonance between the initial nominal copyright of the SCP-173 text, the legal reality at that point, and the CC state it was currently represented as on the Wiki.


Paving over this discrepancy was a matter of foundational security. It justified any and all worry, paranoia, and urgency on the part of the SCP Wiki staff. So long as Moto42's exclusive rights to SCP-173 were not released on the record as Creative Commons, the entirety of the SCP Wiki collection was at stake. Why? Because SCP-173 was declared Creative Commons without Moto42's awareness or explicit permission, and Moto42 technically still held the legal reigns of SCP-173's text. Each subsequent SCP (again, almost 2000 of them by this point) was supposedly released as Creative Commons under a "Share-Alike" mandate per the CC license, but this couldn't be legitimate or legally possible because SCP-173 was still technically a copyrighted piece of intellectual property. This meant SCP-173 was as much of an origin as it was the first in a series of dominos that could potentially be flicked over (by Moto42, if he so desired). If SCP-173 (the text) had to be taken down for legal reasons, so did the rest of the Wiki, because every article subsequent to it was released in the incorrect pretense of being Creative Commons, when it was truly infringement on the intellectual property of Moto42.


This was huge, and meant that the fate of the Wiki rested in the hands of the individual who started it.


In a statement, no doubt rehearsed behind the scenes, Moto42 appeared and wrote a comment on SCP-173 in September 2013, officially paving over the gap in the legal standing of the site:



This statement of release by Moto42 was cause for a great sigh of relief for the staff. The individual who had started the internet phenomenon — and in this author's opinion, the start of a new literary genre — had decided to once again gift it to the public with no expectation of self-gratification. We might know of many individuals who maybe wouldn't have reacted this way. After all, by 2013, people had made money off of SCP merchandise and in multiple nations. Moto42 had the opportunity to claim that all of that money should belong to him, and no one would be able to argue otherwise. Moto42 recognized that there was something larger going on than his monetary gains. The SCP Wiki, all various containment fiction projects to date, and even this Magazine and LLC are very thankful for it.


So, in one instant, the SCP Wiki turned from a teetering mish-mash of legally confused works into a harmonious and cohesive body. All articles were now safely protected and future ones tidily perpetuated by Creative Commons Share-Alike. It is because of this statement by Moto42 that to this day, any written work featuring the components of the SCP format or name must be released as Creative Commons as well.


But that still left the issue of the image of SCP-173.


 

This is important to state at the fore and learn well: unlike the issues with the text of SCP-173, the issue with the image of SCP-173 was not one that ever legally, legitimately threatened the existence of the SCP Wiki. SCP-173 the text is, technically speaking, a separate, copyright-able work all its own, legally independent of SCP-173's image as a "derivative". Even though it was adapted from the image, this does not make it legally dependent upon the image, and SCP-173 is sufficiently creative to merit its own copyright status, by definition.


This stands up to reason and good, common sense. Artists use cross-medium muses in this fashion all the time; consider how convoluted an impractical it would be to regard any written description of any copyrighted image as legally indistinguishable from the image. The attempt to trace all such instances via chains of authorial causation for legal purposes would be impossible. Even if it weren't, it would reduce the entire nexus of human creation into a mythical ancestral point of influence. It would effectively neuter all satire in the process, as the subject of the satire (surely not always happy with the mockery) could claim copyright over it and expunge it from existence with a Thanos snap. The law doesn’t work that way for a reason; the purpose of copyright is to protect individual property so as to encourage more of it, not collapse it into an inescapable singularity.


Unlike the time bomb under all the text on the SCP Wiki, the extent of the damage done as far as the SCP Wiki's material was concerned here would merely be the removal, voluntarily or involuntarily, of SCP-173's image. (Legally speaking; who knows what sort of lack of nuance WikiDot would have if a copyright infringement notice came across their desk... they might just delete the whole SCP Wiki to avoid any trouble. Indeed it is this spooked reaction that most platforms adopt, so as to minimize their woes and involvement.)


The intellectual property holders of either the image or the sculpture  — or both — could claim copyright infringement and have a rock-solid case. They had given no permission that Untitled 2004 or the statue which was the subject of it could be used in SCP-173. The official release of SCP-173 as Creative Commons didn't help to clarify this, as the original porters of SCP-173 and its image had no right to apply Creative Commons to the copyrighted material. A cease & desist letter was entirely possible, and if the copyright holders were litigious, someone could even be sued. (Who exactly? Likely Moto42. You can’t technically sue a diffuse website made up of thousands of people like SCP. This makes his refusal to buff himself up monetarily when he had the chance all the more heroic and admirable. Everyone knows Moto42 could start a fundraiser and be fine though!)


Again though, a cease & desist letter from the copyright holders, or even a lawsuit, would not "affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." Meaning, the creators of the sculpture and image can't claim copyright or intellectual property over Moto42's textual work, or anything resulting from it. That intellectual copyright of the image and sculpture would only extend to the image and the sculpture; not to any text of other SCPs. Even in the worst case scenario, the text of SCP-173 would remain unaffected, just as someone describing a painting in text wouldn’t be beholden to the intellectual property of that painter. So then would the remainder of the SCP Wiki be safe from harm, because its text is legally separate and legitimately released as Creative Commons.


And so the legal threat posed by SCP-173's image did not pose an imminent or meaningful threat to the SCP Foundation Wiki. It is likely that the SCP Wiki staff would simply take it down, if requested. If a copyright holder took it further, and sued to take it down, it wouldn't affect the actual text of the Wiki any more than a random article's non-CC image would.


Yet, SCP-173's image was still a concern. The tube had been figuratively sat on, and there was no hope the toothpaste was anomalously going back in. The image of SCP-173 and the SCP project at large were already seared into the minds of generations on the internet. The awareness of this is evident in an early question regarding SCP-173’s image in a legal capacity is in June 2013.




The initial stance was that it was not the responsibility of the SCP Wiki to enforce the copyright of Izumi Kato:




Indeed, this appeared to be the attitude well into 2013:



What changed? A few things. First, Administrators of the SCP Wiki staff had, according to one report, privately been attempting to get in touch with Izumi Kato since around August 2013; and non-Admin members since February 2014. This effort was happening in multiple languages; the Japanese had attempted contact as well in case there was a language barrier to blame.


Second: Dragonsnails. Now, this article is a history of SCP-173 and not of the entirety of the SCP Wiki's legal woes. So suffice it to say here that a copyrighted image from DeviantArt was used for an SCP, the original artist found out about it, was livid, and was going to report it as copyright infringement. To make matters worse, the watermark on the image had been removed, and no credit or attribution was given. This was eventually smoothed out; the artist allowed the use, and just wanted the courtesy of being asked first. (The same would happen again in the case of SCP-1926; a story for another time.)


This was a turning point in the site's history regarding the treatment of legal matters. Prior, the removal of watermarks on images used in SCP's had actually been encouraged in order to preserve immersion, something taken very seriously in the early years of the Wiki. This resulted in the identification of past SCPs whose image knowingly removed a watermark; articles such as SCP-804 and SCP-593. It also resulted in official policy regarding images. Staff started enforcing a particularly strict policy for SCP-173's image use in 2014, even before they had successfully contacted Izumi Kato for comment.


But such a step could not be done without the gaping black hole at the center of the site presenting itself. The Dragonsnails episode impinged upon the SCP Wiki staff the more looming, ominous, and unresolved legal shenanigans that were left back at the foundations of the site. The image used in SCP-173 inevitably creeped into the staff’s collective anxiety.


From SCP-173's History of edits page.

So on the heels of this, staff would seek out the intellectual property owners of both the image used in SCP-173 and the sculpture. Oddly, this seemed to have come in the form of an off-site user making initial contact with Izumi Kato. Odder still, it resulted from one of the many episodes in which the SCP Wiki staff enforced their newly-recognized legal notices regarding the use of SCP-173... this time in a live-action film promoting a video game.


In August 2014, a post was made to the r/SCP subreddit by the CEO of that film production company, responding to the outcry from the SCP Wiki staff over his use of SCP-173's likeness in his project. The individual posting claimed that he had received an email from Izumi Kato OK'ing the non-commercial use of the statue, and that it was part of a private collection of art in someone's possession. A similar post would be made by this user on the SCP Wiki forums.


The same day, SCP Wiki staff made a discussion on O5 Command about the subject. Several staff were not convinced, as they had been trying to contact Izumi Kato for quite a while and had no response. They found it incredulous that the Izumi Kato would have replied to this random person's email, but not one from the SCP Wiki staff. Several staff members not only shrugged it off as ultimately unactionable, but accused this user of fabricating the permission as a legal work-around for their hopeful project. Users from the Wiki harassed this individual with "unpleasant statements". The user responded, stating his disappointment, and provided receipts and proof of the interaction as legitimate. (The claims made in these letters would be consistent with his later, direct statements to the SCP Wiki staff.) Staff later apologized to this individual, and claimed they were not trying to discredit the individual, merely hold him and the situation to a high threshold of believability.


They would re-attempt contact with Izumi Kato and cross their fingers for a similar graciousness as was seen in Moto42's and the Dragonsnail artist's replies. In the meantime, they would comply as much as they were able.


In early September, staff would finally receive an answer:


The reply:


All of staff collectively un-puckered their rears. There was much celebration among them. A few staff members and site users had to eat a bit of crow; Izumi Kato's reply was consistent with the one previously claimed by the disbelieved user. The outcast who had been laughed out of town, and who doubled-down by emailing Kato and imploring him to reply to the staff as well, had ultimately gotten the site in touch with a wayward demigod.


Notice the language; Kato notes that it is OK to use the SCP-173 image because “many people have recognized SCP173”. However he also states that “I plan to take legal measures to demand an injunction if someone uses this image for commercial purposes.” To be clear, an injunction is "a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another" (Google). As long as SCP-173 wasn't used to make money by anyone (not just the SCP Wiki), this legal wrinkle and concern was as good as solved. (There is a moral argument here as to whether or not the SCP Wiki should have maintained the image despite the legal permission to do so; this was not entertained at this time, but would be re-visited in 2022.)


This put the staff in a role of Herculean moderation, and set an Olympic fire underneath the SCP Wiki Licensing Team. In contrast to past attitudes, which felt enforcement of SCP-173 wasn't the Wiki's responsibility, it was now a paramount and perennial effort. Any merchandise or appearance of SCP-173 on the internet was hunted and hounded until taken care of; removed by threat & force if necessary. In recompense for their long-past legal wrong, the SCP Wiki's staff became Kato’s personal legal police and copyright enforcer. In early 2014, no doubt a result of this development, a "Licensing Experts" team would be formed, and would in a collated Report covering such legal cases during the years 2014 and 2015, mention SCP-173 sixty times.


The notices given out by the staff regarding SCP-173’s image was the same threat that they would have been sent by Kato. Their reception of such a notice was deflected and transferred by their taking up of the enforcement. The worst case scenario would be if the SCP Wiki didn’t catch these copyright infringements and take them down; in that case, either Kato would do it, or simply send one to the SCP Wiki staff. In any case, the image of SCP-173 would need to be removed from the site. Recall, the deal was that the image could only stay up on SCP-173 if it wasn't used commercially. That has been violated from day one and is continuously threatened. It is an unending, resource-heavy, exhausting, and ultimately impossible task for the SCP Wiki to maintain. Kato could at any moment decide that SCP didn't hold up their end of the deal, and demand that SCP-173's image be removed. While prior, there was no monetary resources to attack, that has changed now that the SCP Wiki has collected over $160,000 in legal fees, as a result of the Andrei Duksin trademark.


The Licensing Team, particularly the image sub-team, continued in this direction of image moderation. They audited a staggering amount of articles, past and present, for improper images. Staff members such as Elenee FishTruck were instrumental in this, and received commendations that carried them through the SCP Wiki staff ranks. User CityToast has since contributed legal counsel regarding copyright concerns, as has the late ProcyonLotor, previously head of the Licensing Team (retired). Now, under new Captain LilyFlower, the Licensing Team is dovetailing the two giant efforts into one, seemingly inevitable arrow: one aimed at the famous image of SCP-173.


 

This brings us to the present day; the day that SCP-173's image was unanimously removed from the SCP Wiki.


Why now? After 13 years since the site's creation, 8 years after receiving legal permission from Izumi Kato, and 8 years of successful defense of the copyright deal? It depends on who you ask. Some claim that a moral argument demands the release of the sculpture back into the wild; others believe the image still has the power to legally threaten and sink the entirety of the SCP Wiki; and others are celebratory for the deletion relieving the SCP Wiki staff from having to constantly enforce the terms of their agreement with Izumi Kato.


In any case, the sculpture we once knew as SCP-173 has definitively been neutralized, with a gleefulness mirroring that seen in response to Izumi Kato's initial permission for use, and — without a popular vote offered— to the thunderous applause from all with the power to do so, and with the voices to argue otherwise.


"Are we even legally allowed to vote no. Probably not." Joreth


See our video showcasing SCP-173 artist re-designs:

https://www.youtube.com/watch?v=_NQQfh3fbxU


See more on the SCP Wiki's Peanut Gallery:

https://scp-wiki.wikidot.com/peanut-gallery


Visit the SCP-173 entry on the Confic Wiki:

https://www.containmentfiction.net/wiki/scp-173/



© Lack of Lepers

© Confic Magazine








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