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Question on Usage for fursuits

I understand the rules of art--if you are making a piece of art for a business, or someone that will republish or make money off of it, you should be charging for the rights. But how does this apply to fursuits and other costumes?

I've got a commissioner whom I'm making a suit for, but the suit is based on a copyrighted character. This wouldn't normally be an issue, as I'm basically just building an animal suit, but now I'm finding out that this commissioner owns a mascot/costume company where they do costume rentals and appear at parties. And I'm starting to think that I might actually be making a copyrighted character for this use. If a suit is made for commercial use like this, what does that mean for me, the artist?

EDIT: I feel like I should clarify on what I'm asking, exactly. While I'm certainly interested in the legalities of producing a generic costume that could be turned into a copyrighted character and used for profit, I'm actually more interested in whether or not producing a suit for a business/for use in making a profit would merit an additional charge from the artist? This edit is probably too late to get a response at this point, but there you go. :p
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Comments

( 14 comments — Leave a comment )
mazz
Oct. 5th, 2013 04:38 am (UTC)
I don't think legally anything can be done against -you- for them using it for parties and such if someone sues.
stormrunner1981
Oct. 5th, 2013 04:52 am (UTC)
Actually, it can. Nintendo and a few other companies have put lawsuits forth and won them because of profit being made.

They don't go after people doing like one or two offs or just art, but they do tend to go off on people doing say prints, duplicate or pricey items.

So, depends on circumstances and if they see it I guess?
sableantelope
Oct. 5th, 2013 05:10 am (UTC)
You may just want to have them sign a 'this product is not for commercial use' document of some kind before the suit leaves you just to totally cover your butt. I'd say send them the doc you write up with spots for you and them to sign and date. Have them print it, sign it, scan it and then you print it and scan and keep a copy(send them back a scan of the doc with both signatures).

Probably not necessary; but if you're the least bit worried make sure that as far as you are concerned on your end this costume is being created and sold for their personal, not-for-profit use only.

You can do that with a purchase agreement pared down to the relevant info and then add a Section specifically to deal with the only for personal use(kind of like the end license agreements on software in a way)
If you're in the USA you can search for sample form US-422 and sample forms 359, 360.
However if you've already accepted money and started the suit you can't exactly go changing the rules of the deal now by adding stuff in.

I'd say since the legal threat to you is so very low(chances are their suit would be seized if there was a copyright issue, the company making the complaint might investigate where the suit came from but if you aren't making a business of ripping off their characters you wouldn't be worth bothering with. BTW this did happen to a degree with a suit when the suiter/suit owner claimed to be representing the company which owned the intellectual property in question. They were given a C+D and threat of confiscating the suit- not sure exactly how it all panned out. I think most suiters who get character suits are not dumb/deluded enough to claim they are officially representing that character's parent company- which seems to be when companies start having issues with it. )

In the future you may just want to keep it in mind to be sure and tack on a non-commercial use section if you choose to deal with someone else's protected IP again.

(edit: for plural goof :P God, I should proofread shit before I post it)


Edited at 2013-10-05 05:12 am (UTC)
rimpala
Oct. 5th, 2013 03:32 pm (UTC)
Yeah this sounds reasonable to me.
jakejynx
Oct. 6th, 2013 06:24 pm (UTC)
Thank you. That's good advice. :)
thaily
Oct. 5th, 2013 08:14 am (UTC)
Even if the customer doesn't rent out the suit, you're still making a profit off the commission, ergo you're vulnerable to legal action from the trademark holder.
lit_wolf
Oct. 5th, 2013 11:45 am (UTC)
If the commissioner uses the copyright character suit at parties, making money of it, I can see that being a problem on their end with the owners of the character.

However, for your part in it, I don't think it would be a problem to make the suit and have a one-off profit from it. Companies have allowed artists to sell their fan art at cons for year. I believe the key has always been that the art work has to be in your own style. So if someone was selling a print of Pokemon characters for example, that's fine as long as it's in a different style that couldn't be mistaken as a screenshot from the TV show.

I know that there are some fursuit makers who won't make copyright characters (like BeastCub) but I also know that there are those who don't have a problem with it (like Temperance/KomicKrazi and people who make copyright characters into kigurumis). So I don't think you'll have a problem as long as you aren't knowingly making it for the user to use at parties and make a profit off of it. I might do up a form like SableAntelope suggested but I think you should be okay.
(Screened comment)
kerstin_orion
Oct. 6th, 2013 01:58 pm (UTC)
Your analogy in the last paragraph is too extreme and not appropriate for this community, so I'm screening it. You may re-post your comment with a different analogy if you wish. I will PM you with details.
familliaraver
Oct. 5th, 2013 02:58 pm (UTC)
They may get into trouble trying to do parties and make money. I think as long as you warn them of possible repercussions you may be fine? Honestly, knowingly creating a copyrighted character that would be used for profit is kind of a moral gray area.

I've done a fair amount of research for a project and have talked to a lot of people who sell fan art, plushies, hoodies, stuff like that. The general message I got from them was as long as they aren't being marketed as official merch or copying a product (pirating) it's generally ok.

I've also talked to representatives of Funimation. They leave no question as to where they stand on people trying to make money off their brand. They don't care about fan art. I would call fursuits for personal use fan art.

http://www.animenewsnetwork.com/news/2013-03-04/funimation-sues-animeland-staff-over-counterfeit-items

I forget who it was but I did hear a tale first-hand about someone being contacted by corporate about their pokemon fursuit. Let me see if I can dig up the post.

http://fursuit.livejournal.com/5592856.html
lakotawolf
Oct. 6th, 2013 07:32 am (UTC)
"but the suit is based on a copyrighted character. This wouldn't normally be an issue"

Actually, this IS an issue. You are being paid for it, thus you are profiting off of some company's copyrighted character. You are engaging in copyright infringement. It is illegal, no matter how you look at it.

This isn't fair use, or any other "way around" copyright. This isn't "fan art". Both you and the commissioner are infringing, but you're getting paid for it, so you're actually breaking the law.

Clarification - "fan art" isn't made for profit. The second you start MAKING MONEY off of a company's copyright, it's no longer innocent fan art, it's illegal. Nothing else matters.

I don't know what it means for you in regards to how the customer uses the suit once they get it; I only know you're already breaking the law by taking money for making the suit in the first place.

Edited at 2013-10-06 07:40 am (UTC)
jakejynx
Oct. 6th, 2013 04:16 pm (UTC)
Whoa.

I'm normally not a dismissive person, but I think you need to calm down a bit.

If you had bothered to read right past that quote you just posted, you'd have seen that I said "I am just building an animal suit." It doesn't matter to me if your animal suit is based on an animal from a game/movie/book/whatever. All I am building is a nondescript animal costume. In this case, it is a 100% generic panda. I'm not breaking copyright by doing so. I don't build things like pokemon because they're obviously copyrighted characters. But I make exceptions for generic species.

Edited at 2013-10-06 05:36 pm (UTC)
lit_wolf
Oct. 7th, 2013 01:47 am (UTC)
I don't presume to know all the laws and everything related to copyright, nor can I read the minds of the people who copyright characters and what they regard as threats to themselves.

But if companies were really that much against fan art, they'd send C&D orders to shut down every Artist Alley in every convention in the entire world. I've shopped, sold (and made a profit), worked with an artist friend, and volunteered at Artist Alleys before and never run into an issue of copyright. They're not a little known thing that the companies have no idea is going on either because the companies are there at those same conventions. They'd also stop sites like DA and CafePress for allowing people to sell fan stuff.

This rule is from the website of Otakon, biggest anime convention on the Easy Coast of the US, saying what is allowed in the Artist Alley: "fan art which clearly shows that the work is produced by the artist, rather than by the license holder."

Yes, they have the absolute right to tell people to stop making a profit off they're stuff, and sometimes they even do (see many authors that forbid fanfiction for fear of being sued for taking a fan writer's ideas or the people in charge of Firefly/Serenity putting an end to handmade Jayne hats and giving the gig to ThinkGeek instead), I'm just saying that nine times out of ten, I don't think they see fans who make and sell fanart as a big threat. If they did, Artist Alleys would not exist, let alone be as big of a hit as they are at most cons.
sableantelope
Oct. 7th, 2013 02:11 am (UTC)
Just because the loss due to fan art is less than the cost to prosecute to the IP owners doesn't mean it isn't wrong. (the same way with AAs at cons and your own experiences, the facts are what you were doing is wrong, you just got away with it- so you could try and argue it's harmless, but you're still in the legal and moral wrong).

Also regards to the OP's edit: if you decide to charge more because you know the costume will be turned into a for profit suit that infringes copyright that is a level of culpability, and really pretty sleezey from an ethics standpoint.

If you make a suit of a random animal and the wearer wants to profit with it you have to use your judgement, and well, you really can't decided what someone does with your product once they own it. It's not like rights to digital artwork when it comes to costumes.
Also since you aren't trying to protect yourself from legal troubles as in the first case (basically pretending you do not know that the generic animal is for cosplaying a copyrighted character like in the original case) you really have no reason to charge more for a suit to be used commercially.

If a car dealership sells a car to someone and they get a job with a taxi company and use that purchased vehicle for a cab the dealership doesn't expect to get additional money. Or be able to charge more because someone is buying a truck to use for their business.

You're welcome to try and ask if personal(not copyright)suits will be used to make money, and charge more if they are; but really you'd probably find people would just go to another builder once they found out about the extra charge.

(edit for unnecessary apostrophe; and missed a 'not', crap)


Edited at 2013-10-07 02:13 am (UTC)
neolucky
Oct. 7th, 2013 05:04 am (UTC)
Infringement is infringement, regardless of how the companies feel. It's best to avoid doing it either way. Otakon is absolutely not the "go to" when it comes to fanart and sales of or laws. They are willingly allowing fan-content be sold, regardless of it being illegal. I'm a long looong time convention circuit vendor, and even I know better then to pretend it's "okay".

But I digress, this is not the post to discuss legalities of fanart. It's illegal, end of story. What others choose to do with that knowledge is their business. Lets keep this on topic to the post.
( 14 comments — Leave a comment )

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