This is an interesting case. From a legal point of perspective I think it all boils down to the question whether or not this new work is a derivative work based on one or more works.
Definition time!
WHAT IS A DERIVATIVE WORK?
"A derivative work is a work that is based on, or incorporates, one or
more already existing works. Examples of derivative works include
multi-media works using preexisting elements, screenplays adapted from
books, new musical arrangements, art reproductions or any other work
that modifies, is derived from or elaborates upon a preexisting work.
To be copyrightable in its own right, a derivative work must contain
enough elements of originality to qualify as as new work. Further, a
copyright holder in a derivative work will only obtain a copyright
interest in his original contribution, not the underlying, preexisting
elements.
It is extremely important to note that only the copyright owner of the
underlying work, or one who has been granted permission to do so, may
prepare derivative works. Unauthorized derivative works violate a
copyright holder's exclusive rights under the copyright act."
http://www.lawgirl.com/copyright.shtml#derivative
For example, it goes without saying that Disney recycled their own animations in various films they produced:
They are in their right to do so, because they own that work.
(PS this wasn't done to save time or money, btw, as so many news outlets and people seem to parrot: it was the director's idea, because he played it safe and knew these sequences were unique and just worked well! It actually took more time to redress these existing animations, rather than create new ones.
https://geekdad.com/2015/06/disneys-recycled-animation/)
Expanding on the Disney examples, is the dance animation shown in the above YouTube video unique enough to count as a copyrightable work? Yes. It is identifiable as a unique work, and anyone outside Disney rotoscoping or even recreating the same frames of animation would have the Disney department on their doorstep the next day to deal with.
Good animation is hard. Good animation that is uniquely identifiable is even harder to pull off. So while generic motion can never be copyrighted (such as a generic walk cycle), Disney's dance animation sequence is a unique work all by itself - the motion at this point becomes a unique work all by itself.
Next question.
Is it legal to rotoscope from copyrighted works?
Making derivatives of copyrighted works without permission is not allowed. Rotoscoping is most likely a derivative work.
If, on the other hand, your own creation is only inspired by another's work, but does not follow it, and forms an independent work, then such inspirational "use" is allowed.
Tarmo Toikkanen, Published copyright author
https://www.quora.com/Is-it-legal-to-rotoscope-from-copyrighted-works
In effect, it all comes down to how whether the new work (Pigeon Pop's pigeon animation) is a derived work from the original artworks (Keke's animations and Sid Weiler) or not.
Then. the question becomes: is Keke's animation an identifiable original work? Is it unique? Would the average person be able to identify his animations as something that stands out from a generic animation cycle, or even complicated generic animation cycles without personality. Would anyone be able to distinguish Keke's movement animation cycles from other unique animation cycles, for that matter?
Yes, I think that is an affirmative.
While the originality of any work can be debated and is, up to an extent, in the eye of the beholder, I think a very strong case can be made that it is. While 'simple' animations they may be, personally (as an animator myself) when I first saw Keke's animations and style for the first time yesterday, I would recognize his animation style as something very uniquely 'his'.
The same as that unique Disney dance cycle. It is a unique work and animation style.
Final question: is Pigeon Pop's pigeon animation a derived work from Keke's animation cycle?
As we've established, it doesn't matter whether the original animation was rotoscoped or not - the core of the matter is whether the new work's animation is directly identifiable as Keke's work.
Yes, I would argue it is. From a technical standpoint the new work's animation was obviously done by someone with lesser animation skills than Keke. It is more linear, and while the point was made in an earlier post that that might be the consequence of the tools used (Flash/AnimateCC), we merely have to look at the timing and the fact that both animations can be overlaid to see that the intent and originality of the original work have been retained in the new work. I'd go one step further, and point out the legs: it is obvious to me that the creator of the new work based it off the middle bird. The legs are identical, and form another uniquely identifiable aspect of the original author's work. If they had been straight legs - not so much. But in this case the legs further solidify the case against the new work's creator.
I also checked the website's IP owner (
http://www.fortafygames.com/pigeonpop.html), and the owner of the domain is a Frenchman named Marc *******, Chambery, France. This is somewhat corroborating evidence in my mind that the visual style of animation may have been very well known to this group of developers. Circumstantial evidence at best, but still.
Anyway, based on the "mob response" I'd say the jury would have a field day if this case would ever go trial. In my mind and from a legal point of view, I'd be very surprised if a jury wouldn't find in favour of copyright infringement. The reason why I think there's been a mob response in the first place, is BECAUSE the animation cycle and base shapes are so uniquely identifiable as Keke's work. And I agree.
It is clearly a derived work from existing copyrighted work by Keke.
As for Sid Weiler's pigeon - I am not so sure as I am about the animation cycle(s). I do see how the new creator may have been inspired by it, but it is sufficiently different that I feel it doesn't qualify as a derived work.
