Your Proxies Are Probably Less Legal Than You Think They Are

Sheep Wave • September 21, 2021

Opinion

Sheepwave here. Proxies are pretty cool, actually. While this statement would have started a fight a few years ago, I think all of us have probably decided where we stand on them, and I have no desire to argue about that. Wizards of the Coast have stated that they have absolutely no interest in cracking down on what they internally refer to as "playtest cards." provided they are being used in the appropriate contexts. (I will continue to use the word proxy, as it is the term the community has settled on.)

To many people, myself included, digital art that is printed onto blank cardstock is a great way to express themselves creatively in the casual formats they love. Proxies of this kind can make cards whose prices are absolutely unreasonable for the average person possible to experiment with, or get to try formats they are priced out of. One of my Breaking the Rules articles is about a card you have to proxy to even access.

But...

But there are limits to everything. A lot of people who agree with what I have written so far are not going to like what I have to say next: Almost all of the high-end proxies being used by the community violate the rules regarding proxymaking. Wizards of the Coast is extremely rare as IP holders go, in that they have a very cleanly defined Fan Content Policy.

Many new proxy-makers make the assumption that the only thing you aren't allowed to sell is exact recreations of scans of cards. This is not true. A Magic card contains lots of elements that Wizards' artists and designers made. Selling any of them, be they mana symbols, rules text and more, is copyright infringement. But at this point, I think we may have tunnel-visioned on that to the exclusion of other important matters. TheProxyGuy has been doing this a lot longer than I have and put it simply on Twitter: 

If You're Buying, Somebody Was Selling

While I will not be naming any of them, those who pay attention have probably heard about various sites that allow you to custom print any image you upload onto a card. They will not print anything that contains Mickey Mouse, Darth Vader, or Wizards of the Coast copyright and trademark info, as this would be illegal.

However, humans are creative. Over time, dedicated users apparently found that it was possible to slip things through the cracks, by removing the right information from a card face. Unfortunately, doing so has two huge problems: First of all, if you are giving someone money and they are giving you an unofficial card of any sort, that is a violation of the very first rule of the Fan Content Policy, which is that things be FREE. You aren't really any less in the legal wrong for buying a proxy than you are for selling one.

Second problem is that the image used to do this violates the fourth rule of the Fan Content Policy, which is "Don't hurt Wizards." "If the Wizards IP you are incorporating into your Fan Content already has copyright notices, logos, trademarks, or other notices existing within it, don't remove them."

I really need to say that if you take nothing else from this read, every single one of the websites I've ever heard of committing this kind of copyright violation, I have also heard stories of them committing credit card or other payment fraud on massive scales using thier customers' data. Turns out that if someone is willing to cross Hasbro, they're willing to cross you.

Now, are you likely to get sued because you wrote Angus Mackenzie on a piece of scrap paper and forgot to add the trademark and copyright line? No.

Messed Around, Found Out

The reason I am addressing this at all is something those of you who follow me on Twitter may already know. One of the largest sites that acted as a content hub for printable card images is, at time of writing, shut down. Most of the cloud drives the site pulled from have been permanently emptied out of material by their users.

As I was somewhat horrified to learn on Thursday, the site operated by allowing users to type a list of cards into a text prompt, then pull potential card faces from dozens of completely public cloud drives, all of which lacked copyright lines. This would be a problem even if all the work was genuinely transformative, but unfortunately, it was not. Several of the drives contained upscaled rips from Scryfall that had all been modified to lack trademark and copyright info.

Effectively, this site was The Pirate Bay of Magic cards, but without any of the anonymity. In fact, most of the users were using accounts with their real names. While it is easy to say this was just sheer carelessness, I think it speaks more to the fact that most people involved were driven by creativity first and simply did not understand the full ramifications. I have had to deal with people trying to profit off of illegal sale of stolen work before, and people who think they have something to hide take serious precautions. To me, this feels more like misconceptions about what was allowed enabling a party that got out of hand.

Something to be clear about with the Fan Content Policy is that it is meant to enable people who are creating something. While most artists that create proxies do not make original art as I do, they instead experiment with card frames, crossovers, and styles that Magic is not (yet?) ambitious enough to approach even in thier wildest Secret Lairs. Scrubbing the information off of a scanned card image is not creative. It is just theft, and would probably be considered counterfeiting by Wizards.

While I never used the service, I had been somewhat aware of it for some time. When I first heard rumor of it, it was a small tool being used by a handful of people. While I did not condone it, it seemed harmless and I didn't pay much attention to it for the next half a year, figuring I would mind my own business.

Then around a month ago, it suddenly went from something talked about in hushed tones, to only the most trusted individuals, to getting openly shouted out on a regular basis. People can and do get away with copying things at small scales all the time. But when you gather tens of thousands of files that all commit some form of IP violation into a single location, and loudly broadcast that you are doing so to anyone who will listen...

I Am Not A Disinterested Party

I am unfortunately not an unbiased observer looking in from the outside. What brought this all to a head was someone noticing that, among the literal tens of thousands of files present in the archives this site had gathered, there were stolen ones. Yes, they were all technically stolen, but some more so than others.

When I or most other proxy artists make a card, we are always very, very careful to follow the Fan Content Policy exactly. I cannot stress enough how lucky we are to have that policy. It means I can make my art as much as I want, with very clear rules about what to do, and know that as long as my work follows those rules, I am safe.

I can never, ever sell the artwork if it contains Wizards IP. I do that work because I love customization and I love this game. It is difficult to overstate just how furious I was to learn that someone removed the information that kept me legally protected from my work, and then bought and sold it without my knowledge or consent. It is worth pointing out that I only learned this after the site was already taken down.

At this point, I was not the only one who had taken notice of the site. The party came to an inevitable end, with the site going inactive as of last night. While this was at least in part to myself and other large proxy creators reaching out to the person who originally created the tool to inform them just how far out of control it had gotten, this happening eventually was inevitable. I really hope that those who participated in the site recognize how much fire they were playing with, and stop doing it before Wizards legal is the one reaching out. I don't know where the line is, but I do know that uploading 39 thousand Scryfall scans with the copyright line removed to a public drive was way, way past it.

A narrative has emerged among those who felt entitled to use the service that for some unfathomable reason, I personally am to blame for them losing access to this tool. Including some rather unkind things said about me. Threats to attempt to dox me or attack my own freelance art have been made. Others have accused me of being a hypocrite or sleeper agent, which is very funny.

I have spent several days talking to those who were involved at the creative level, all of whom have expressed remorse and said they wish they had done things differently. A narrative emerged between those I spoke to. Over the last few months, what had started as a tool for artists to share with other artists had slowly become overrun with an undercurrent of toxicity. Several of them had faced threats and abuse simply for choosing to focus on making the cards they wanted to, rather than whatever someone demanded they do.

My moral stance is that use of proxies in casual settings harms no one. But nobody is entitled to abuse others to demand they be able to illegally buy thier work, or steal it without permission. Printing your own cards correctly and legally does take effort, but

aren't able to put that effort in, you are not entitled to simply steal them. Magic cards are not a physical need. Sadly, at this point the entire project seems like it may have been poisoned beyond steering to a point of recovery. Despite this, a few of the involved proxy artists and users are trying to resurrect it, doing things the right way this time.

How Do You Do This The Right Way?

Print them yourself. It's that simple. It isn't what anyone wants to hear, but it's the only correct answer. There are tons of guides you could use to do home printing. Just yesterday, Twitter user @LokiArtsy released a tool that can generate printable images that use almost no ink and are extremely readable for those for whom budget is a serious concern.

Maybe you would rather print high-quality foils like I do. There is a setup cost, to be fair, but it's a much smaller cost than getting sued would be. I personally use an inkjet, vinyl sticker paper and cardstock. Every single file I have ever posted of my cards are the same source files I print, and anyone has my permission to print my unmodified work for thier own personal use. Mastering advanced printing techniques is an extremely rewarding endeavor I cannot recommend enough.

Quite simply, if money changed hands for you to get your cards printed, and they contain IP that isn't yours, they are an IP violation, not the kind of "playtest cards" that Wizards has said they are fine with. If you want to engage in revolutionary anti-capitalist praxis, then I regret to inform you that giving money to a company that illegally prints copies of a work that does not reimburse the creators of said work at all, then uses your credit card information to buy a bunch of gift cards, is not that. And if you are stealing from and legally endangering small artists like myself, I have choice and completely unpublishable words for you.

- Meghan Burden

I am not a lawyer. This is not legal advice.