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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.

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( 24 comments — Leave a comment )
kayla_la
Feb. 21st, 2014 05:19 am (UTC)
No, she's not entitled to take back a gift (how tacky) just because she's angry at you. It depends more on how much you like her compared to the drama the person who gave her to you may cause. If you really like the character, and it was given to you as a gift with no strings attached, just block them everywhere and ignore any harassment.

If she did art for you, however, for this character, I recommend taking those down if you have them uploaded anywhere.
poizenkat
Feb. 21st, 2014 05:23 am (UTC)
Thank you, I appreciate it. I was pretty sure that I was able to keep it but I wanted to double check and was worried that I might have been wrong.
slinkslowdown
Feb. 21st, 2014 05:20 am (UTC)
It doesn't matter whether money was exchanged or not, agreements can still be [legally] binding without any payments made if that's what was agreed to.

You made an agreement, which you have proof of, and I don't think you should have to give the character back.
poizenkat
Feb. 21st, 2014 05:23 am (UTC)
Thank you very much for the help! I really appreciate that!
gatekat
Feb. 21st, 2014 05:28 am (UTC)
Unless she clearly stated it at the time of the original exchange (I have seen this in some adoptable TOS) then she has no right to claim the character, she has no rights to it or him.

An agreement is binding with or without payment.

Edited at 2014-02-21 05:29 am (UTC)
duster
Feb. 21st, 2014 05:49 am (UTC)
Echoing everyone else. If it was a gift and not an exchange for anything at all, she can't demand her gift back. The fact she tried to do that at all is a little bleh to me.
skulldog
Feb. 21st, 2014 06:20 am (UTC)
Going to echo other commenters, the original agreement stands even if she really can't use the dismissal of friendship and some animosity as a reason to demand it back after the fact.

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.

ziege_untervelt
Feb. 21st, 2014 08:11 am (UTC)
If it was a gift, no matter if this gift is a character, piece of digital art or an actual 'physical' object - the one who gives it can't just come demanding it back. You have no obligation to return it if you don't want to.
thaily
Feb. 21st, 2014 11:53 am (UTC)
The Dutch say "eens gegeven blijft gegeven", once something is given it stays given. She can't demand back a gift, what the hell :/
(Deleted comment)
snobahr
Feb. 21st, 2014 03:14 pm (UTC)
There's nothing saying Rude Person can't draw more of Character In Question. That chat log, however, might very well stand up in court, if it came to that.
(Deleted comment)
purpule
Feb. 21st, 2014 03:20 pm (UTC)
I'm not entirely sure, but I think things that are given over as gifts actually do hold up in court, especially if you can prove it was a gift. The character isn't really copyrighted to anyone, in a legal sense - as far as I know, you can only really trademark a character, which I highly doubt was the case here.

The original artist has distribution rights over the artwork they've made, but not necessarily ownership over the character.




oceandezignz
Feb. 21st, 2014 04:15 pm (UTC)
I said basically the same thing, just a hell of a lot or long winded!
oceandezignz
Feb. 21st, 2014 04:07 pm (UTC)
Stories and art (visual and aural) are subject to copyright and the circus involved there. We can all agree, the artist in question still retains rights to the art.

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)
(Deleted comment)
synhowl
Feb. 21st, 2014 08:38 pm (UTC)
Seeing as how the character was originally given to the OP as a gift, I -highly- doubt the creator trademarked the character in question prior to gifting him/her to the OP, and THAT'S the core issue of what Purpule and Ocean are saying--without the character being trademarked, and with evidence existing that the character was given as a gift, with no other strings attached ... the creator, legally, has no leg to stand on.

So I'd venture to say that both morally AND legally, the OP has nothing to fear about keeping the character.
(Deleted comment)
oceandezignz
Feb. 21st, 2014 09:55 pm (UTC)
Yes copyright and trademark are wholly separate entities than can sometimes go together, but legally separate.

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.
film2edit
Feb. 22nd, 2014 12:21 am (UTC)
It was given to you. Period. It doesn't matter if there was a financial value or a barter. It was given to you. If she's going to have an attitude about it, it's probably best not to continue going into the matter with her. She should consider her actions for the future if she wishes to give something to someone.
inkstainedrat
Feb. 22nd, 2014 03:04 am (UTC)
I was in a similar situation a few years ago.

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.
poizenkat
Feb. 22nd, 2014 03:26 am (UTC)
Thank you. Thank you so much, I really appreciate the insight you gave me and the experience you shared with me. I'm so sorry that this happened to you. I really am, no one deserves that.
thaily
Feb. 22nd, 2014 04:11 pm (UTC)
Sadly I think that might be the intent of OP's ex-friend, to ruin something nice for someone they now dislike. It's very petty :/
spades_wolf
Feb. 23rd, 2014 04:15 pm (UTC)
Ah, my BF and I went through something EXACTLY like this recently. Fortunately it was resolved permanently, (I hope) but not before a lot of finger pointing, and attacks from them. The characters markings had been changed, as had the name, but they were trying to "get us back" since they were upset with one of us. Honestly, just take it with a grain of salt, and try to not get nasty with them. You don't want to sink down to their level, but believe me it will make you upset, as I'm sure it has. (I spent the night crying because this person wouldn't leave us alone) It's really incredibly nasty and tacky to try to rip a gift away from someone just because they are upset with you. :( I would ignore it, keep doing what you are doing, and let them sort their own nasty feelings out themselves.
( 24 comments — Leave a comment )

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