how does it work with movie or game characters copyrighting?
Toobis
Posts: 964
Are famous movie or game characters officially allowed to be actually used in digital or otherwise art online? I look around at a lot of digital art or other types of art like cartoons etc done by fans and such and wonder how does it work with the copyrighting of the characters they draw? are people actually 'allowed' to do their own artwork whether it be digital or otherwise of famous or known characters from movies and games? for example: superheroes like Batman or Superman or Catwoman etc. or famous/known game characters i.e. Lara Croft or Duke Nukem or that huge underwater thing with the drill arms from Bioshock. Are these officially copyrighted characters? if this is the case then why can people openly create real looking art of characters clearly depicting them from programs like daz or poser etc and put it on the internet for the world to see?
I really have no idea how it works so please someone tell me.
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Comments
It's called fan art and the Internet is full of it. :)
You wouldn't be allowed to sell any such things for profit, but like fan fiction, there's nothing stopping you making it for personal entertainment.
Unfortunately, you won't find actual famous fictional characters on sale, by and large, because they would effectively be getting sold for commercial gain, by their very nature. Would suspect that, with a few tasteful modifications, people can produce clothing sets and characters which can be said to have been 'inspired by' such and such, of course.
Hmm this I don't get as I have seen numerous digital art and cartoon adult sites which depict superhero's such as Batman or Superman
in their famous outfits. Wouldn't this essentially be gaining money off their copyright?
Yep... Depends if the copyright holders are aware of them and/or have given permission. If something nefarious is going on, litigation often ensues.
I was just asking this on another artists site where people routinely make paintings of superheroes and sell them.
From what the artists said (and admittedly none of theme seemed to be really aware of the law, they just quoted precedent)...they claimed that individual paintings fall under fan art and can be sold, many of them do sell them at con's right beside the various comic companies...but anything that would get made into multiple reprints is where the line is drawn.
I guess one-off original art is easy to turn a blind eye on...but multiple reprints is more serious of an infringement.
(though technically....any image made of a copyrighted or trademarked character would be an infringement)
Rawn
The issue is so outrageously complex, so it is best that if you wish to do a fan art of any created character to do some research on the rights that the copyright owner has in place. Some, or rather, most big names do not make a fuss if their characters are used as fan art, fiction, or any other means as long as no monetary gain is being made off of their product. But there are others who have strict no fan work restrictions in place and will take things to a higher level in order to make certain those rules are met.
I've seen on instance of that, it was some author who wrote books about dragons. She had fan sites removed from the internet and had requested that all fan work based on her creations be removed as well.
It all depends on the restrictions placed on those characters.
And then there are those who get insanely trivial and petty about it, like a certain company who somehow successfully managed to have the term 'space marine', itself, considered copyright...
Trademarked, not copyrighted; there's a difference, and a significant one in this case. If they had copyrighted "space marine" than you and I wouldn't be able to write the words without violating copyright. Rather sensibly, the U.S. patent office doesn't grant copyright over so small a writing sample. What they did was to trademark the phrase, so that in particular commercial contexts (trademark is context specific, so companies with completely different products can sometimes have similar trademarks), they and only they can use it. They don't even have to be the first to use the term, so long as nobody else has an active trademark on it (though "we were here first" can sometimes be an effective defense against a trademark violation claim... but look at DC's issues with wanting to use "Captain Marvel" for a case where they effectively chose not to fight it.) So when someone else publishes a book with the title "Space Marine" and an image that looks more than a little reminiscent of their character, they can go after it, just the same as if it used some of the less-generic-sounding trademarks. (Though I'll agree it does seem pretty dodgy when it's a plain term and there isn't a clear intended link.)
Regarding fan art, my understanding is that all fan art is technically an intellectual property violation of one form or another. Generally copyright -- you can copyright the look of a character as well as their stories, although their name is generally trademarked. But unlike trademarks, copyright doesn't need to be actively defended in all cases to be upheld in a specific case. This means that the copyright holder effectively has a lot of leeway in how they defend their copyright. Most seem to be OK with letting fan art slide, and even with letting artists sell individual prints. (I suspect in the latter case it's because it's a good way to scout out potential hires.) Any attempt at mass-marketing though -- be it large print runs, a non-licensed comic book, T-shirts, or yes, DS/Poser-compatible content for sale -- is likely to bring down their wrath, because that's cutting into where they make their money. Additionally, if it's something they normally have another company do under license -- such as making action figures -- then they would be obligated to step in if some third party started making unlicensed copies. Licenses are often exclusive, so if they gave tacit permission to someone else to produce, they could be held in violation of contract. Nothing brings out the lawsuits like the desire to avoid getting sued oneself...
Of course, I'm not a lawyer of any sort, let alone an IP lawyer, so this is all just a layman's understanding of things.
A copyright lawyer gave a pretty definitive talk at Comic-Con a few years back. The whole thing's on deviantART's YouTube channel: http://youtu.be/xKBsTUjd910
Excellent video Atticus.
Nice to hear from an actual lawyer..instead of all the speculative stuff you hear in forums.
There was an interesting discussion on DA I participated in regarding fanart. I can't find it now, but when I will, I'll copy my statement as writing it again would be futile.
In the United States there is no protections under Copyright Fair Use protecting "fan" unauthorized production or sales of copyright material or trademarks. This is because bu nature fan works usually are produced with fidelity to the original. Critiques, satire and parody's of copyright work does have some fair use protection under the constitution and copyright law to allow for critical free speech.
There is no ambiguity in the law, however in practice fan copyright infringement suits are extremely rare because fan art often supports the agenda and values of the copyright holder. Ant that's the bottom line.
Trademarked, not copyrighted; there's a difference, and a significant one in this case. If they had copyrighted "space marine" than you and I wouldn't be able to write the words without violating copyright. Rather sensibly, the U.S. patent office doesn't grant copyright over so small a writing sample. What they did was to trademark the phrase, so that in particular commercial contexts (trademark is context specific, so companies with completely different products can sometimes have similar trademarks), they and only they can use it. They don't even have to be the first to use the term, so long as nobody else has an active trademark on it (though "we were here first" can sometimes be an effective defense against a trademark violation claim... but look at DC's issues with wanting to use "Captain Marvel" for a case where they effectively chose not to fight it.) So when someone else publishes a book with the title "Space Marine" and an image that looks more than a little reminiscent of their character, they can go after it, just the same as if it used some of the less-generic-sounding trademarks. (Though I'll agree it does seem pretty dodgy when it's a plain term and there isn't a clear intended link.)
Regarding fan art, my understanding is that all fan art is technically an intellectual property violation of one form or another. Generally copyright -- you can copyright the look of a character as well as their stories, although their name is generally trademarked. But unlike trademarks, copyright doesn't need to be actively defended in all cases to be upheld in a specific case. This means that the copyright holder effectively has a lot of leeway in how they defend their copyright. Most seem to be OK with letting fan art slide, and even with letting artists sell individual prints. (I suspect in the latter case it's because it's a good way to scout out potential hires.) Any attempt at mass-marketing though -- be it large print runs, a non-licensed comic book, T-shirts, or yes, DS/Poser-compatible content for sale -- is likely to bring down their wrath, because that's cutting into where they make their money. Additionally, if it's something they normally have another company do under license -- such as making action figures -- then they would be obligated to step in if some third party started making unlicensed copies. Licenses are often exclusive, so if they gave tacit permission to someone else to produce, they could be held in violation of contract. Nothing brings out the lawsuits like the desire to avoid getting sued oneself...
Of course, I'm not a lawyer of any sort, let alone an IP lawyer, so this is all just a layman's understanding of things.
One other aspects of trademarks, you must demonstrate how the trademark is applied (printed marketing material & packaging) to the actual product and provide proof of use. So if Space Marine is trademarked, it must be printed on the packaging or documentation associated with at least one of the companies products. I do not think T-shirts etc. count either, it must be on the product its trade marked for unless the T-Shirt is the trademarked product.
In my DAZ tribute web page, I took some liberties with DAZ logo etc. I informed them so they are aware and DAZ has the right to request me to pull it. If they or any party that feels there is infringement on my sites , I would pull any references as once informed as I may incur liability for any damages that occur as a result ignoring the request.