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Honest Question

Now, I'm just looking for opinions. Me and my ex created the character as seen above, my mind with the ideas and her skills too make it reality. Which is normally something cool and natural.

Now, you and that significant other break it off, and she tells you too not use her character. Does that put her in the wrong for the idea was that of my mind, would it not be if someone simply commissioned the person for a character sheet? Or lets put in another analogy. Disney. Their minds make up some of the most amazing characters known throughout the world, yet never lift a finger too create them, their artists do. Isn't it the same thing? The artists never claim the characters as their, just the artistic subject of it as theirs.

Don't get me wrong, I'll pay her money too keep the character enough for me too use it, but am i wrong, or is she? opinions?
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( 38 comments — Leave a comment )
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May. 11th, 2009 11:30 pm (UTC)
If you thought it up and all she did was draw it, then it's not really 'her' character, regardless of your relationship status with her at the time.

That would be like an artist telling a commissioner that they couldn't use their character anymore just because they drew it. :\
May. 11th, 2009 11:31 pm (UTC)
Also: don't pay her a dime to still use the character. She is in no position to tell you that you can't in the first place.
(no subject) - kalika_tybera - May. 11th, 2009 11:45 pm (UTC) - Expand
(no subject) - iguanaartgirl - May. 13th, 2009 12:49 am (UTC) - Expand
May. 11th, 2009 11:54 pm (UTC)
Legalities aside, just drop it. Don't use the character. It's a cartoon character, not worth creating drama over. Realistically, with no commercial value attached, neither of you are going to court over it... so just forget it.

She doesn't want it used, as seeing it in new art would remind her of a failed relationship. This is quite fair enough. Let it go and move on. You lose nothing over respecting her wish.

That's my take, anyway.
May. 12th, 2009 11:16 am (UTC)
So much this.

I also can support this, I know the character was created by "you" but she drew it first in her life time, but seeing later images from that character which makes her feel bad and who knows what drama it can be from it later what everyone would love to avoid.
(no subject) - iguanaartgirl - May. 13th, 2009 12:52 am (UTC) - Expand
May. 11th, 2009 11:54 pm (UTC)
Well I would just not use the art of the character, and get new art work of it from another artist. She can't copyright a character unless she goes through the lengthy legal process.
But as it were, maybe you would be better served just making a new character and starting anew, both for your benefit and hers. If she is squabbling with you about using a character y'all created together, I wouldn't say y'all broke up amicably.
May. 11th, 2009 11:54 pm (UTC)
Speaking only from what's written in black and white, and what the "law" says about things like this...

The property in question (in this case, the character's likeness) was a product of the creative minds of two separate people, that meshed to create a single entity. As a result, the character's likeness is actually the intellectual property of BOTH of you. It's community property.

Unless one person happens to file it with a formal copyright, then it's technically both of yours, and both of you can do whatever you want with it. It doesn't really mattere who contributed what in it's creation. So until one of you (or both of you) do this, either of you can do whatever you want with the character. The other party cannot restrict its use unless it comes up in someone else's works without permission.
May. 12th, 2009 08:15 am (UTC)
- If he thought of the character and she drew his ideas, the character is his creation and the art is hers. Y'know, by letter of the law.
- Neither the character concept nor the art is community property unless they decide that which is theirs, is now free for public use.
- The moment an artist draws something, they already own a formal and enforceable copyright, they just need to register the copyright if they take it to court. Most actions against copyright infringement don't make it that far -because- copyright is legal and enforceable without registration.

May. 11th, 2009 11:54 pm (UTC)
I think it's equally both your character. As long as you both don't use it for commercial purposes unless otherwise agreed upon, then you should both do it for what you please.
(Deleted comment)
May. 12th, 2009 12:00 am (UTC)
There is such a thing as a copyrighted character; see the first link in my post below. They probably share copyright in that character if they both had a hand in its development, and - if so - can both use and non-exclusively license that use to others.
(Deleted comment)
(no subject) - greenreaper - May. 12th, 2009 12:21 am (UTC) - Expand
May. 11th, 2009 11:57 pm (UTC)
Hm...Odd. But if you technically designed it out (Text or otherwise) and she simply illustrated it? Then all she can do is ask that you not use the art she produced. However if you BOTH had a hand in the design as a whole, then... perhaps just create something new for yourself, or something altered from the design before to make it 'yours'.

I have a feeling you both had a hand in the design, if shes telling you not to use "her" character. If thats the case, wash your hands of it and make something new. It'll be a LOT less Drama-filled.
May. 11th, 2009 11:58 pm (UTC)
This gets into all sorts of fun questions about the extent of copyright, trademark and unfair competition law. The treatment of character itself for the purposes of making new images may be also distinct from a specific work embodying the character.

Disney paid its artists - their work was specified as a "work for hire" and the artists gave up their copyright in both the works and the characters as a result. You presumably did not make that arrangement with your ex for either the work or the character itself. You may therefore be in the position of joint authorship with respect for the character, depending on the amount of characterization, naming etc. that you each put into it. If you had named the character and written a detailed original character description, that would probably be sufficient, even if the details were later refined or altered by the artist.

If you have done enough for a joint claim to copyright, you both have an equal (50%) right to the proceeds of the work. You each have the right to permit others to non-exclusively use the work (in the US - other countries may require all owners to agree). And you can use the character without payment to your ex, and vice versa. Neither of you can give exclusive rights to a third party without the signed agreement of the other, because that would infringe on the previous rights.

With respect to the use of artist-copyrighted images of commissioner characters - it is customary within the fandom to allow commissioners to use images that they had commissioned, at least non-commercially (indeed, this is kind of the point), and therefore there would be an implied license to the commissioner to use the work in this manner. Of course, the artist still holds the copyright on that image, and so could go and sell prints of that picture of the character, or even permit a third party to use that image of the character as their own fursona.
May. 12th, 2009 12:46 am (UTC)
Its your character.

Your imagination brought it to life, her talent brought it to paper.

Its your to do with as you please.
May. 12th, 2009 12:52 am (UTC)
All legalities aside-

If I were you, I'd respect her wishes and just make a new character. Seriously. You've only been using him for a couple months so it's not like you've developed some huge, intricate story around him - he's just some cute drawings at this point. A brown-striped furry dude you have some cute drawings of is not worth causing drama or stirring up bad feelings with someone you used to care about. Just be mature, create some new cute furry dude, and get some new cute drawings for him that don't have any baggage.

My two cents.
May. 12th, 2009 12:58 am (UTC)
I'm a little unsettled that you'd have to lie about this to get a different set of opinions. :(

If need be, I will back-up my old HD to retrieve the MSN convos where *I* had chosen to create everything about him. I'm the one who approached you about a new one because the previous character had a bit too much history and association [and didn't wish to pair it with my own]. Unfortunately to say, you really hadn't -directly- contributed to the cause; I took my own personal consideration to your favourite animals, that you wear glasses and what I had known of your personality at the time - otherwise you hadn't put anything towards such a thing. Oh, the name (lol) but that was really about it, sorry.

I'm not quite sure why you'd think I'm "wrong" by politely asking you to please no longer have others draw him anymore (since you never would yourself anyways). I'm not comfortable with others drawing him due to memories in the first place, but also your preference in commission subject matter as well is entirely too questionable & do not wish to see something I've created placed in such situations etc.

All I ask is you please respect the choice, is simply it. He only existed for merely 2 months give or take? And was drawn by less than a handful of people including myself, so not even many people associate the character with you outside of my artwork. I apologize for being upfront to you and frankly didn't expect such a negative reaction. I'm well aware you could (afford to) make a new one, or even continue using the previous since the history has been set aside (that I know of) as it is.

Sorry? I guess.

Edited at 2009-05-12 01:05 am (UTC)
May. 12th, 2009 02:24 am (UTC)
Re: loltypos
LOL I thought the original post reeked of a one-sided story. And passive-aggressive justification BS.
Re: loltypos - houndofloki - May. 12th, 2009 04:31 am (UTC) - Expand
(no subject) - theblackdragon - May. 12th, 2009 05:40 am (UTC) - Expand
May. 12th, 2009 01:00 am (UTC)
If all she did was draw it, then I would say she has no right to tell you what to do with it. As long as you like the character, and it doesn't give you bad memories, then just keep on using it. But, above all, do not pay her one red cent.

No matter what anyone might say, copyright and trademark hold no bearing here. If no papers were filed, it doesn't matter. Even if there have been changes in law to account for copyright or trademark on time of creation (I'd like to see "time of creation" defined in regard an idea; good luck with that), she isn't going to be able to do anything about it. And, even if she could, it would just be ruled frivolous.

Don't think on it too much. Just do what you will with the character and move on with your life. If she keeps bugging you, just block her across all internet messengers, websites, etc. Do what you must to avoid the stress and drama. Nothing she can say or do will change anything unless you let it affect you emotionally.
May. 12th, 2009 02:21 am (UTC)
If you commission someone to draw a character, you both hold the copyright of that art made. The artist does not hold copyright over the character. But one of the interesting laws in the US, unless one party signs a not for commercial use waver Both parties can sell the art due to both having half share in the art made.

So if I went out and paid for art from XXX, unless they make me physically sign and get a notary stamp saying I forgo all rights to the art, I by law can sell that art if I so choose either the original or reprints.

Just some fun facts that most artists dont know. Now it is considered rude to make prints of art that you purchased and sell them, but it is NOT illegal in the USA.
May. 12th, 2009 10:31 am (UTC)

"If you commission someone to draw a character, you both hold the copyright of that art made."

Incorrect, the artist retains copyright unless you've paid for the rights to be transfered.

You have the right to sell the original should you own it, true, but you can't sell prints of it unless you have obtained reproduction rights since they count as derivative creations and the artist retains copyright.

Possession does not confer rights. Most of the time you are paying an artist for the creation not the rights, if you want the rights to an image, that must be covered by a specific fee or the work must be on a work for hire agreement which is not what most commissions are under.
May. 12th, 2009 02:29 am (UTC)
To the OP: the disney artists do not claim the characters as theirs (even though certainly some of them did CREATE the characters) because they sign all manner of contracts waving their rights to what they create in exchange for MONEY.

If it's your character that you came up with yourself and had your SO draw, well fine then, it's yours. But I get the vibe your SO did more than merely draw a character you already had in mind. If there was any amount of back-and-fourth in the design, even if the other person was catering to what you liked and trying to work out what you wanted under your guidance, guess what, they gave quite a bit of creative input there.

The legal technicalities are up for debate, although I know for a fact most creators who make a living off their stuff have to avoid other people's ideas for their own characters like the plague, lest someone else claims to have an intellectual stake in their work.

My 2c - work something out with your ex if you're super attached to the character or else just be polite and drop it. Don't drag your dirty laundry on here.
May. 12th, 2009 03:08 am (UTC)
Yeah, this.

And also seconding the people who've said it's not worth it to fight this out. It's a character, you can make up an infinite number of new ones to replace it. Just let it drop and move on.
May. 12th, 2009 04:06 am (UTC)
As far as I understand copyright-

if the character is your idea and her implementation- well, ideas are explictly NOT copyrightable, and implementations ARE.

You can't legally use her artwork.

Getting other artwork made based on the same idea? sounds like fair game to me. As, I'll mention, if she wants to do similar with this character; ideas and concepts are NOT copyrightable until they are fixed in artwork.
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