Hello. A friend gave myself and my partner a character as a gift a while back. Now that we are no longer friends she is demanding the character back. Since there was no payment made I am unsure of what to do, but this was an agreement. We also both drew the character for ourselves and do not want to give her the character back knowing that she will just save the art and claim that it was made for her.
Is she able to take the character back like this? I still have the conversation in which she agreed to give him to us, but she says she's entitled to him because we didn't pay though she never asked us for any kind of payment.
Is she able to take the character back like this? I still have the conversation in which she agreed to give him to us, but she says she's entitled to him because we didn't pay though she never asked us for any kind of payment.
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If she did art for you, however, for this character, I recommend taking those down if you have them uploaded anywhere.
You made an agreement, which you have proof of, and I don't think you should have to give the character back.
An agreement is binding with or without payment.
Edited at 2014-02-21 05:29 am (UTC)
If you wanted to extend some good will, at the least credit this person with the design each time you do some art of it, but beyond that, I really don't think there's much they can demand.
About ten years ago I was doing some back and forth with a producer who was interested in making a tv show or movie pitch or something out of one of my stories, and there was a lot of forms filled out, one in which the copyright was partly transferred to him (both our names were on it) and then there was yet another one to be filled out when he returned the copyright wholly to my name.
Unless the chat log specifies clearly that she is transferring all legal rights to the character to you, I'm not sure it would hold up, though I would hope it would. Even if you'd paid for it, I believe there has to be a contract that specifies your rights. At least that's been my own experience. So sorry this happened to you.
The original artist has distribution rights over the artwork they've made, but not necessarily ownership over the character.
Characters on the other hand, fall under trademark which is a separate circus although it can intersect with copyright. "Furry" or "Generic Weeaboo" characters, unless pursued and protected by the creators aren't automatically trademarked, but in the CULTURE of these fandoms; one is generally suppose to respect that a "character" belongs to either A) creator/artist or B) recipient of character (such as in adoptables).
In this case, OP and their SO where the recipients of a character, artist gave it freely, and with no strings attached at the time it was given. Artist cannot break the CULTURE of the "ownership" of the character, due to a falling out (welll, not without looking terribly bad in the eyes of many), they do get copyright over the original material and that's as far as they get.
Not only that, its overall culturally gauche to TAKE BACK A GIFT.
TL;DR: You are comparing apples (copyright/show production) to oranges (fandom culture/gift work) and it does. Not. Work.
PS: Tablet hit post on its own, so I had to edit to finish my thought.
Edited at 2014-02-21 04:13 pm (UTC)
Even you said yourself that this is not something the artist can do WITHOUT looking terribly bad in the eyes of many. But as far as the legal aspect goes, I wonder --can she? I'm going by my own experiences here, it's entirely possible you know a lot more about copyright laws (I don't claim to be an expert, lol) and if you feel comfortable telling OP that they cannot get into any legal issues whatsoever as a result, then that's great! (I hope that doesn't sound sarcastic, as I mean it genuinely.) I personally don't know enough to make that statement, which is why I wouldn't risk continuing use of the character myself. Again, this is just me.
In all the contracts I've signed for commercial work, which were always crafted by the client's lawyer, if I was paid to design a character the contract stipulated that I was relinquishing all rights to said character. If I didn't specifically agree to that, the client did not get those rights. It's based on those experiences that I assume (and I may be wrong) that the artist does have a legal right to "take back the gift" as crappy a thing to do as it is.
To summarize:
- I absolutely think OP is in the right and should be able to continue using said character. Using the chat log as proof, I assume they would be able to, as far as fandom sites go.
- If I was OP, because of the possibility of legal issues if the artist decided to get nasty about it, I would relinquish the character because of the stress that it would bring me. But I tend to be overly careful about such matters. It's the main reason I don't buy adopts, because of the murkiness surrounding legal ownership and commercial use of the character designs.
So I'd venture to say that both morally AND legally, the OP has nothing to fear about keeping the character.
If that's the case then I'm glad and relieved for OP, as that is the fair thing to happen. I personally don't know enough about copyright laws to feel comfortable using a character in this situation, as from what I've heard, trademark is not the only way to protect a character. I don't think I would even use a character a close friend gave to me as a gift unless there was a written agreement (which would feel so cold!) but then again I am very paranoid about these things.
I agree that 99% chance OP has nothing to worry about. For me, a 1% chance of legal trouble would be enough to put me off using the character.
EDIT: I'm just realizing as a result of these convos and the searches I'm doing --but, does the term "copyright" refer only to the rights to reproduce SPECIFIC pieces of artwork, and nothing else? It sounds like it would, though I never thought of it that way before.
Also, I think the laws have changed a little since I last looked into digital evidence and such. Looks like it is holding up a lot more in court these days? If so that's good for OP.
Edited at 2014-02-21 09:07 pm (UTC)
This is what I was telling you, and why your comparison with the televison stint didn't apply.
Copyright is immediately granted to the creator, unless signed away (or in cases of work for hire, never had it), upon creation. You CAN submit your work to the government for official status, to give you better legal ground in case of infringement.
Trademark is exactly that, a mark of your trade. Trademarks are an individual's or company's visual identity/brand, it must be filed for through the governmebt and granted (or not). And if granted, it must be protected!
Its like Disney suing that daycare for having murals of their properties on the walls or Hasbro stopping the original "fighting is magic" game; they were protecting their brand, because if they don't, they lose them and they become public domain.
In fandom culture though, who has the cash to do the above? A privileged few. Instead fandom relies on a culture of respecting boundaries. (ie: "[x] belongs to ZipperHamHam, don't steal!) The artist the OP is dealing with is not respecting that. With art they gave as a gift. With proof of it being given as one.
They still have the rights to the art THEY made, but they lost the rights to the character, since it was given away no strings. They didn't protect their 'investment' (character), but OP is, therefore its theirs.
No lawyer worth their salt is going to tackle such a case; nothing to gain for them or the client as the OP has record of an agreement that WILL be held up in court.
A longtime friend had given me the name and loose outline for a character that existed within a roleplay setting he orchestrated. I created the personality, history and appearance of the character and held her for many years. She became an internet identity, with with messengers, an e-mail address, forum accounts and a FA gallery. I attended conventions under her name and many people knew me by it. I loved her a great deal.
She had been mine for several years when the friendship dissolved. I weathered the initial bad blood, and continued to use her for another year or two when my former friend began to contact me, first through e-mail and then through a phone call, demanding that I give her back to him. I refused. He may have provided the initial concept, but I had had made her my own.
Even though I held onto her, I realized that he had really soured my love for her. I couldn't use her without thinking of that ruined friendship, and all of the painful things that happened with it. I was afraid of continuing harassment. I wasn't comfortable using her anymore, and started to distance myself from the character. Eventually, I contacted him and told him that he could have her. I'd rather she be used than shelved, it was a good way for me to clean out the bad memories and it gave me an unequivocal way to cut ties with this person for good.
I firmly believe that the gifted character is yours and yours alone. It was given as a gift, and you seem to have made good use of the character. But, if ill feelings attach to the character or your former friend refuses to let things be, it may be easier to let the character go.
I hope things turn out well for you, and that you can continue to cherish and use the character.