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Copyrighting Characters

This is just for curiousity's sake, not really a situation I am in. I have been wondering this for a while and I figured this would be the best place to ask! :3

Go on any given character reference sheet on Deviantart and you'll probably find the disclaimer "Character/Fursona (c) ME ME ME ME ME ME DONT STEAL!!!!!11!!1!!!!1111!" Most not as extreme but you get the idea. What are the facts behind character copyrights? Here are the questions I have.

1) Can you even copyright a character to begin with? (I heard you can't, that you can only trademark a character)

2) What process would you go through to claim copyright/trademark of a character?

3) Fact or fiction? Once you put something on the internet (Deviantart, for example) it is automatically copyrighted to you without filing a copyright claim with the US Copyright Office (and paying the 35 dollars to do it.) I've seen many people make this claim.

4) What can you copyright/trademark on a character? Can you copyright/trademark design elements (ex. hair styles, markings, etc) or does it cover the whole thing?

Let me know if my wording is a little confusing, I can try to clarify it more. Feel free to ask your ownquestions about character copyrights or just toss in some vital facts if I missed anything important enough to cover.

I look forward to hearing some answers! Thanks!

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( 39 comments — Leave a comment )
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Sep. 17th, 2010 11:37 pm (UTC)
I love these posts. Everyone gives different answers and it turns into a huge mess. You can contact a lawyer for better info, in fact, I'd recommend it.
Sep. 17th, 2010 11:39 pm (UTC)
You should see it in my knitting communities when it's a discussion of whether or not you can sell items made from patterns you didn't create. 9_9
(no subject) - hellebore - Sep. 17th, 2010 11:45 pm (UTC) - Expand
(no subject) - onesteptwo - Sep. 18th, 2010 12:09 am (UTC) - Expand
(no subject) - vaxtorino - Sep. 18th, 2010 12:25 am (UTC) - Expand
(no subject) - onesteptwo - Sep. 18th, 2010 01:38 am (UTC) - Expand
(no subject) - lilenth - Sep. 18th, 2010 01:41 am (UTC) - Expand
(no subject) - onesteptwo - Sep. 18th, 2010 02:50 am (UTC) - Expand
(no subject) - lilenth - Sep. 18th, 2010 09:04 am (UTC) - Expand
Sep. 17th, 2010 11:39 pm (UTC)
I wantes to know this too. "you copyright the work they are in" so, you can't "copyright" a roleplay or fursona character, but if you wrote a book with them in it, the likeness is.

it is the likeness? the name? the "essesance" you own? everything in the whole package?

I'm guessing you trademark it.
Sep. 18th, 2010 12:59 am (UTC)
It's a combination of representative elements, representative being the key word here, because you can't copyright or trademark an idea. So I guess the 'likeness' is the closest to what you actually own.
Sep. 17th, 2010 11:40 pm (UTC)

Copyrighting a character can only be done as part of a whole, for example Pikachu is copyrighted as part of the games/TV series/books Nintendo do, a character in a novel would be copyrighted as part of that novel, so that means that the specific description/image/personality/relevant interactions would be part of the copyright.

Design alone has to be a trademark and registering a trademark does not protect it, trademark is different to copyright law at least in the US, a trademark needs to be used for interstate commerical sales before it is fully protected in the US, so even if someone registers it, it doesn't protect it.

As for how to do it: http://www.uspto.gov/trademarks/basics/index.jsp

Semi fact, once you create something it is automatically copyrighted and belongs to you, you do not need to publish it to invoke copyright (that did used to be a requirement a very long time ago but for nearly a century, it's been automatic) however you will need to register it if you intend to sue for monetary damages in a case of copyright violation and registering it does provide proof that you did create it.

Copyright and a trademark aren't the same thing. But one thing they share is that they apply to the whole thing not parts of it unless those parts are ruled unique and defining of the image in a court of law, that is something that is not generally ruled though. Basically people who bitch that zomg someone stole their ears/tongue/hair style/whatever random part of their emo character haven't got a leg to stand on actually since it is the whole that is considered not individual parts unless they're very very unique.
Sep. 17th, 2010 11:42 pm (UTC)

PS: As others have said, this community and any comments in it should not be taken as legal advice, if you want to know specifics or intend to take action about something you need to contact a lawyer.
Sep. 17th, 2010 11:41 pm (UTC)
Have you checked back for previous posts with the tag 'copyright'? They're a wealth of information and will probably answer your questions. Make sure you read the comments too.
Sep. 17th, 2010 11:41 pm (UTC)

"Is a character protected by copyright?

A character could be protected under copyright if it is an original expression of an author. Merchandising items such as toys, interactive games, books and clothing including characters can also be protected by intellectual property rights in certain circumstances, mainly copyright and trademarks, along with other areas of law.

Hope that helps to some extent.
Sep. 17th, 2010 11:44 pm (UTC)
Heh. Copyright covers a SPECIFIC piece of art, and makes it illegal to directly copy it (and probably illegal to trade it or otherwise use it, but honestly copyright is very, very, very fuzzy, even if you ask a lawyer you'll get different answers from different individuals.)

When it comes right down to it, you can *only* copyright a specific drawing, not a name, look, design, design element, or even combination of elements. Pick the most oddball, obscure, and complicated thing in the world and somebody else *still* will have come up with something similar on their own, without ever having seen your design.

I think the only question you have with a concrete answer is number 3. When you create a piece of art is when it becomes copyrighted. The copyright always exists. The 35 bucks is just to formally register it, so you have an iron legal record proving its yours.
Sep. 18th, 2010 12:09 am (UTC)
Not a lawyer and all that, but it's my understanding that a character can be trademarked but not copyrighted, but a specific expression of the character can and is copyrighted. To trademark a character, you'd probably want to talk to the USPTO (in the US, anyway). Since 1986, US law has been that anything you create is automatically copyrighted. You should be able to trademark the entire character, but I'm pretty certain you have to fairly aggressively defend that trademark to keep it.
Sep. 18th, 2010 12:13 am (UTC)
Everything you create is 'protected' in some way. However..

If you create and 'copyright', lets say, a green cat with blue eyes and four wings, somebody can go and make the same character with three wings and red eyes and call it their own. Its hard to win a lawsuit when that happens. This is why there is so many 'rip offs' of famous characters from TVs, Productions.etc.
Sep. 18th, 2010 12:17 am (UTC)
I actually asked a copyright lawyer about this. Lilenth is correct. You can copyright a character, but it's much harder in visual art than in fiction. For example, Sherlock Holmes would be a copyrighted character if the books weren't out of copyright. The only way to copyright a character is it if is specific and has enough information about it to be distinguishable from other characters. So you need context to copyright it. Like a large body of work in which it exists as having personality characteristics like a graphic novel, book, game, etc. Because most characters are not visually distinct enough on their own.

So actually you can copyright a 'combination of elements' if there is -enough- elements. Which is actually pretty subjective still. It's always best to ask a lawyer who specializes in this personally. For the most part most visual characters aren't enough to copyright on their own, but if they have stories behind them they can be. For pure visual representation trademark is usually the way to go.

Also you can only really trademark something if it is sufficiently unique. Like you can't copyright/trademark "a purple dog" but you can trademark a specific visual representation of a purple dog in a specific style.
Sep. 18th, 2010 03:35 am (UTC)
I was advised by one of my college professors to create a full character bible (visual representation that animators use for animating a character) and copyright that. Then the character is technically covered, because a character bible as a whole is a definitive piece of work, including turn around, color chart, and more, (they are HUGE and take a lot of time and work). Urgh.

However as it is still considered it's own work, that doesn't mean the character is fully covered. The work itself is covered, as has been mentioned. Not the character inquestion.
(no subject) - monsterfeets - Sep. 18th, 2010 04:46 am (UTC) - Expand
Sep. 18th, 2010 12:49 am (UTC)
I think most of my knowledge of Copyright law has so far been expressed here.

But I'd like to add on a little tid-bit if I may.

I'm sure you're familiar with the character of Superman. Copyright is owned by DC Comics (and I'm sure a little to the originators and their families). In 1953, DC was successful in a copyright infringement lawsuit against another publisher over creating another strong, black-haired superhero (named Captain Marvel) despite this character's abilities, origin, costume, etc differing from Superman's.

Since then however, the copyright laws have become so relaxed, that DC's competitor Marvel has a character whose origins and abilities are carbon-copies of Superman. The only difference being a different name and circumstance (...and costume of course).

I guess in a nutshell, you can get away with a character as long as it is "uniquely distinct" from any other.
Sep. 18th, 2010 03:40 am (UTC)
That and if you are willing to constantly fight to protect your work. The company "White Wolf" that owns a number of rpgs, are hard core sue-addicts.

I've worked on derivative manuals for fan groups and we are not allowed to /publish/ them in any manner that the public can get to. IE. On websites even. They have threatened lawsuits so many times it's just easier to keep our collective heads low and say "yes sir, no sir".

Now that they are going mostly PDF with their stuff, they are revamping their Fair Use allowances. *rolls eyes*

Anyone who creates a /character/ based on their world... looses their rights to that character. I'm not kidding. Yuo can create a werewolf, sure. But Create a Garou and define it in terms of their game world, and it's theirs. I'm not joking. They /will/ sue you if they find you making any money off of their stuff.

This includes print outs of /your/ character. Especially if they have definitive markings that related to White wolf's game world.

Because they are willing to fight, and hard core, for their stuff, they win. *sighs*
(Deleted comment)
(no subject) - lilenth - Sep. 18th, 2010 09:39 pm (UTC) - Expand
Sep. 18th, 2010 01:30 am (UTC)
These answers are the general case. There are exceptions, but those are _exceptions_ (special cases, legacy, etc).

These answers apply primarily in the USA. There are minor differences in other Western countries.

These answers are based on my actual experiences dealing with an Intellectual Property attorney during the formation of my Florida-based for-profit corporation. These are not definitive legal statements. For definitive answers for your specific needs, you must seek proper advice from an active lawyer with specialization in Intellectual Property.

1) Can you copyright a character?
Copyright applies to the work (painting, recording, sculpture, digital drawing, etc). It does not apply to the style or ideas in the work. You cannot copyright the idea of "humanized skunk girl that wears a green shirt". Likewise, you cannot copyright the style of drawing all your characters with big Anime-influenced eyes.

The problem is the (c) symbol has been incorrectly extended by hobby artists and amateurs to be a shorthand notation for "Intellectual Property". The artist probably does not know the correct thing to write is "Girl Skunk is the intellectual property of ME, da Artist."

Note, marking the characters of a drawing with "Intellectual Property" does not provide any legal protection. It is just a proper way to identify that "Hey, I created this character. It belongs to me."

2) What process would you go through to claim copyright/trademark on a character?
Copyright is not an option. See above.
Trademark is an option, but you must show commercial usage. This does not mean selling commissions. It means selling products. While not technically necessary to form a corporation, it does make the paperwork, taxes, and filing process easier as a corporation (S-corp or LLC).

This is one of the things the lawyer pointed out -- there is the "law" and there is the "practice". Technically, you don't have to be a corporation. But, if you ever need to go to court, pay the Federal filing fee, and prove commercial use of the trademark it is far easier (the "practice") when you are a Federally recognized corporation.

There are two levels of trademark. The basic level is the "commercial use claim". This allows you to use the "TM" symbol. The amount of paperwork depends on whether you register with the State and if the State has such. This option is usually free or cheap. But, it does have the least level of protection. The next level is to file for a Federal Registered trademark. That costs about $350 per mark per use. It can get very expensive and time consuming. I'm currently seeking registered status on my brand.

3) When a copyright goes into effect?
Again, the "law" says as soon as you create the work, regardless of whether it is published or displayed. So, that drawing in your sketchbook that never sees the light of day is technically copyright to you. However, the "practice" says if you need to sue for copyright violation, then you need to have it federally registered. The lawyer said most people don't bother to register everything, but use the "expedited filing" process if they do need to take legal action. Of course, the expedited route costs several hundred dollars.

4) What can be protected?
Again, copyright is not appropriate.
For trademark, you protect the particular image that is filed. Trademark is mostly used to protect the logo and brand name.

For example, Warner Bros has a TM on the name "Pepe LePew". They also have a TM on each image of Pepe that appears in their consumer products style sheets.

But, Warner Bros also has copyright protection on all poses of Pepe that appear in any of the cartoons, because each frame of the cartoon is considered a separate work collected into the larger work of the cartoon. Therefore, nobody can copy Pepe from a cartoon frame and attempt to reuse it in a different context.
Sep. 18th, 2010 02:28 pm (UTC)
Regarding your answer to point 1), I do have a few things to add.

There actually are ways a fictional character could enjoy copyright protection: A) As a part of a literary work, or B) As a graphical depiction.

Since most fandom characters either have a story behind them or commissioned artworks, a great many of them do enjoy copyright protection.

However, if the copyright to a character is ever violated: 1) Most individuals wouldn't ever bother going to court with it. 2) Even if you go to court with it, chances are your character might not even be unique enough to establish any copyright claims against the defendant - If it's a fox girl without any unique traits or markings, the defendant could simply claim that he drew a generic fox girl which has no relationship to the character in question.
Sep. 18th, 2010 03:16 am (UTC)
Some other things of interest.

If you commission someone to draw your character then the artist owns the copyright to that picture.

Uploading a picture that you don't own the copyright to an online gallery like FA or Deviantart is copyright infringement, even if you commissioned the artist to draw that specific picture. Even having a copy of the picture on your computer is copyright infringement, no different than downloading music, movies and books that you are not licensed to use.

Given the above if an artist wants to leave the fandom it would be no problem for them to hand out DMCA notices and have the pictures removed. Even if they give you permission to reupload the picture they can change their mind and hand out notices to the website owners. Given the risk is either annoying a user or potential for lawsuit it is a foregone conclusion with what they would do.

The artist can reuse the picture for whatever purposes they want. For example one artist submitted artwork to Triskelion, the expansion pack for Furoticon without even bothering to ask the commissioner if he was alright with this. This is perfectly legal.
Sep. 18th, 2010 05:39 am (UTC)
This is, indeed, a very important bit of information. I, as a commissions artist, probably need to post this on my gallery just to inform my clients that even though they're hiring me to draw their character the way they want it, because I created the art from my own imagination (despite their references) it technically, legally belongs to me. Not that I'm gonna make a big fuss about people downloading it or the clients uploading it to their galleries. That'd be SILLY. lol But it's also very good information for the clients to understand.
(no subject) - lilenth - Sep. 18th, 2010 09:18 am (UTC) - Expand
(no subject) - sovy - Sep. 18th, 2010 04:47 pm (UTC) - Expand
Sep. 18th, 2010 11:09 am (UTC)
Apparently you can copyright a character, I know Ahkahna registered hers. I wouldn't know the details though, you'd have to ask her about it.
I'm also told that if you publish material and sell material with your character on it, that's sufficient to protect it from being copied exactly (but not approximations obviously).
But the most reliable source of information is still the official sources; artists/publishers/lawyers and such who've dealt with first hand.

I just wish we could all agree that it's not a nice thing to do to use other people's designs without their permission, registered copyright or not. :/
Sep. 21st, 2010 09:02 am (UTC)
Isn't what Ankahna registered was the breed that she created???
Sep. 18th, 2010 02:23 pm (UTC)
I posted a similar journal entry on FA a while ago, someone linked me to:

This should be of great help to you in answering those questions.
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