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Copyright, Trademarks, Fanart, and how it applies to artists
14 years ago
General
As all things are subject to inflation, sadly, so are my prices. With the raise in my cost of living, commission prices have gone up, see footer below.
I've seen, over many years, scouring the net, a lot of confusion, and misrepresentation as to exactly how, and what is protected, in what ways, concerning copyright, as well as confusion over trademark infringement, and the ways in which this applies to us, as artists.
Copyright law was written in 1909, then rewritten in 1976. The original iteration was written such that any work that was created -had- to be copyrighted to be protected, and renewed every 28 years.
With the US's joining of the Berne Convention in 1989 (an international collective, committed to overall protection of created works), copyright law was amended from the original text of the Copyright Act of 1976 (which took effect in 1978), removing the requirement to register a work to be protected, requirement to include the copyright information visually, and also pretty much eliminating the need to renew a registration (a work is protected for 50 years after the creator's death).
In 1996 the World Intellectual Property Organization Copyright Treaty (WIPO) was introduced. It's an expansion of basic copyright to the member countries, to try and move the stagnating laws into the digital age. Through it, things like computer programs are protected as literary works, and much, much more.
In 1998, along with a lot of law juggling, the Digital Millenium Copyright Act was passed (DMCA) along with the Sonny Bono Copyright Extension Act (which increased the protected term by 20 years [so, now 70 years after death of creator, a work is protected]).
Now, to the meat of it:
Copyright protection exists to protect the creator of a work (be it literary, auditory, visual, or a combination of these) from theft of the work, or potentially damaging (monetarily/statutorily) works. It allows the creator to seek legal action on infringing organizations or individuals.
Under copyright law, the moment your work exists in a tangible form (thanks to WIPO, even intellectual property is treated as tangible), it is protected. You also have certain basic rights that are yours and yours alone as the copyright holder. These are, the right to copy, distribute, sell/rent/lease, and create derivative works based upon the original work (in the case of audio/visual works, also the right to perform/display it publicly).
"Title 17, United States Code, Section 106"
What does this mean about fanart? Is my MLP/Sonic porn protected?
Well, first, we need to define a few things.
Fanart:
As touchy as this subject is, here's how it equates out.
Fanart is a derivative work.
"Well, what's a derivative work?"
I hear the question now.
Here's how Copyright Law defines it:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
You are using copyrighted characters in your own depiction. As stated above, only the copyright holder has the right to create derivative works, unless this permission is given, in writing, to someone else.
"But I made this art myself! I own the copyright to that at least!"
Not quite.
Title 17, United States Code, Section 103a states this
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
And here's the referenced Section 102:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
"That's all legal jargon. What's it really say?"
Firstly, Section 102 subsections a,b is saying that the listed works are protected under copyright, but, that protection does not extend to ideas, procedures, methods, concepts, etc, that are presented in the work itself. (i.e., you cannot copyright the way you made a piece, the idea presented in it [unless it is an idea relevant to a literary work, which is another ballgame all together], or a concept that hasn't, itself, already been copyrighted on its own as part of a larger work.
*edit/update* To better clarify the above, it means you can copyright a character, a setting, but not a pose, drawing style, or specific arrangement of words.
Now, on to Section 103 subsection a.
This says that all compilation or derived works are included in what's covered above, except when any portion of the work is produced unlawfully (i.e., without permission).
What this means now, is that you've forfeited all of your rights to a copyright claim.
"So...who holds the copyright to my art?"
This is where copyright law gets weird.
The answer is, no one.
The original copyright holder can't claim it, as they did not create it (and therefore cannot sell, copy, or redistribute it in any way).
Having unlawfully created this work, you've forfeited your own copyright on the work itself, and therefore cannot do any of the above either.
Section 106A does grant some rights to visual works production, regardless of 106 itself.
These are: For the author of the visual work to claim authorship of the work itself (i.e., you can say you drew it)
If someone mutilates, distorts, or any modification that is prejudicial to the honor of the author's name, they can prevent the use of their name on the work.
The only rights you (and the original holder) have is to stop others from copying it (that means you can -still- legally track down the art thief who is reposting your MLP/Shrek porn, and take legal action against them, however, tread with caution here, as this is a very dangerous train, since the original holder can also seek legal action against you).
So, tl;dr version, fanart is copyright infringement, and is illegal.
"But it's a parody! It's fair use!"
Not quite. Now, back in 2002, US Courts upheld that a work cannot simply be stricken down outright because it -might or might not be- fair use. All fair use claims are handled on a case-by-case basis.
"What does that mean?"
You don't decide if what you're doing is Fair Use. The courts do.
Thus far, my favorite misrepresentation of all of this is "The government doesn't enforce copyright law. It's the copyright holder who has to file a claim. So, if no claim is filed, you're in the green."
I can jaywalk any time I want, and the cops around here won't ticket me. It's still illegal, even if it's not being enforced. Non-enforcement does not equal legal.
Now, on the subject of fanart. How about fan created characters.
This is a fun area, because you start to slip from Copyright into Trademark, and this is where the difference between the two really shows forth.
Trademarks are registered elements, that, in a specific application, are tied to a good or manufacturer.
Examples. The Nike "swoosh", The McDonald's golden arches.
Character examples: Batman (not Batman, as in Bruce Wayne, but the application of elements. His insignia, the yellow tool belt, his pointed cowl and cape), Superman (his insignia, the blue outfit with red cape, his spitcurl).
These elements, when combined, can be trademarked, as they are representative of a "good" which is created and sold to the public.
Knowing the difference between copyright and trademark, here, is important. You cannot copyright any single one of these elements, but they can be registered, collectively, as representative of something larger.
The most interesting trademark I've seen is owned by Wiffle Co. (they make wiffle bats and balls).
The bat itself bears this marking on it: "The color YELLOW is a registered trademark of Wiffle Co."
It's actually legal, but it can be confusing.
The color yellow, in the application of plastic bats, is trademarked to Wiffle Co. Therefore, no other manufacturer can make yellow, plastic bats, without infringing on Wiffle's trademark.
Make sense?
Here's how it applies to fan characters.
You cannot simply change a name, or one characteristic of a character from a novel, movie, or comic, and claim it as "original work". You run a high risk of infringing on copyright and/or even trademark.
This was upheld not too long ago with a literary sequel to "The Catcher in the Rye". A man wrote a book, and legal action was sought against him, specifically for his main character, named Mr. C. (This applies more to fanfiction, but is still applicable). The infringement claim was that Mr. C -was- Holden Caulfield (the original character from Salinger's book). Even though it was never stated, the similarities were too hard to miss. Despite claims that his fanfic was "Fair Use" the novel was killed, and author wound up having to pay out to Salinger over copyright infringement.
Characters like Batman, Superman, Harry Potter, and Holden Caulfield here, are subject to copyright. However, generic characters are not. One cannot copyright "thug 3" just because he found his way into Batman, or Superman. To avoid infringement, you have to really push yourself outside the basic elements of a character to truly create something new.
I could create a guy named Supreme Commander, and dress him in Blue, with a big bullseye on his chest, and a red cape, and a spitcurl. I may not be infringing on Superman's copyright, but I am treading hard into trademark infringement (the blue suit and red cape, and the spitcurl), and can still be sued over it, unless I press hard into parody territory.
TL;DR version. Changing names or small things like hair/eye color does not make it original, and you are still, likely in copyright infringement and even trademark infringement.
My favorite area here. People complain about the whole "profit" thing, and compare selling a used video game.
The law even covers this one folks. Check it out. (Important, in regards to people who sell prints).
Section 109 states that, in regards to a particular copy of a work, the owner may sell, or dispose of possession of that particular copy, without the authority of the copyright holder.
This means that if someone buys one of your prints, they can sell that print to someone else, if they so choose (but they cannot copy it, nor can they sell copies of it, this applies only to that specific purchased copy).
Lastly, misrepresentation of the © symbol.
The proper format for the symbol is thus:
© <year in which the work was completed/first published> <name of copyright holder>
i.e.
© 2011 Marshall K. Wood
Things like "© me" don't work. It's actually an improper representation of the format.
Also "© verias" doesn't work, -unless- it's in full format, and the work -is registered- to myself, and in the pseudonym section (the forms for copyright have this) I put "verias" as my pseudonym.
Then I can put "© 2011 verias" on there.
Clear as mud?
Good,
I do hope this does help some of you guys out there in understanding it a bit more.
Regards,
Verias
Notes about the author of this article.
My name is Marshall Keith Wood, known throughout the fandom as Verias, and in some circles also as Keith W. I'm a freelance comic artist, typically illustrating work-for-hire projects. My experience with copyright, intellectual property, and United States Code is mostly one of interest, but also one of a desire to better understand my rights, and the rights of those I work with/for. The article above is not meant to be used as legal advice, or substituted as such. If in doubt, get a lawyer.
Copyright law was written in 1909, then rewritten in 1976. The original iteration was written such that any work that was created -had- to be copyrighted to be protected, and renewed every 28 years.
With the US's joining of the Berne Convention in 1989 (an international collective, committed to overall protection of created works), copyright law was amended from the original text of the Copyright Act of 1976 (which took effect in 1978), removing the requirement to register a work to be protected, requirement to include the copyright information visually, and also pretty much eliminating the need to renew a registration (a work is protected for 50 years after the creator's death).
In 1996 the World Intellectual Property Organization Copyright Treaty (WIPO) was introduced. It's an expansion of basic copyright to the member countries, to try and move the stagnating laws into the digital age. Through it, things like computer programs are protected as literary works, and much, much more.
In 1998, along with a lot of law juggling, the Digital Millenium Copyright Act was passed (DMCA) along with the Sonny Bono Copyright Extension Act (which increased the protected term by 20 years [so, now 70 years after death of creator, a work is protected]).
Now, to the meat of it:
Copyright protection exists to protect the creator of a work (be it literary, auditory, visual, or a combination of these) from theft of the work, or potentially damaging (monetarily/statutorily) works. It allows the creator to seek legal action on infringing organizations or individuals.
Under copyright law, the moment your work exists in a tangible form (thanks to WIPO, even intellectual property is treated as tangible), it is protected. You also have certain basic rights that are yours and yours alone as the copyright holder. These are, the right to copy, distribute, sell/rent/lease, and create derivative works based upon the original work (in the case of audio/visual works, also the right to perform/display it publicly).
"Title 17, United States Code, Section 106"
What does this mean about fanart? Is my MLP/Sonic porn protected?
Well, first, we need to define a few things.
Fanart:
As touchy as this subject is, here's how it equates out.
Fanart is a derivative work.
"Well, what's a derivative work?"
I hear the question now.
Here's how Copyright Law defines it:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
You are using copyrighted characters in your own depiction. As stated above, only the copyright holder has the right to create derivative works, unless this permission is given, in writing, to someone else.
"But I made this art myself! I own the copyright to that at least!"
Not quite.
Title 17, United States Code, Section 103a states this
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
And here's the referenced Section 102:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
"That's all legal jargon. What's it really say?"
Firstly, Section 102 subsections a,b is saying that the listed works are protected under copyright, but, that protection does not extend to ideas, procedures, methods, concepts, etc, that are presented in the work itself. (i.e., you cannot copyright the way you made a piece, the idea presented in it [unless it is an idea relevant to a literary work, which is another ballgame all together], or a concept that hasn't, itself, already been copyrighted on its own as part of a larger work.
*edit/update* To better clarify the above, it means you can copyright a character, a setting, but not a pose, drawing style, or specific arrangement of words.
Now, on to Section 103 subsection a.
This says that all compilation or derived works are included in what's covered above, except when any portion of the work is produced unlawfully (i.e., without permission).
What this means now, is that you've forfeited all of your rights to a copyright claim.
"So...who holds the copyright to my art?"
This is where copyright law gets weird.
The answer is, no one.
The original copyright holder can't claim it, as they did not create it (and therefore cannot sell, copy, or redistribute it in any way).
Having unlawfully created this work, you've forfeited your own copyright on the work itself, and therefore cannot do any of the above either.
Section 106A does grant some rights to visual works production, regardless of 106 itself.
These are: For the author of the visual work to claim authorship of the work itself (i.e., you can say you drew it)
If someone mutilates, distorts, or any modification that is prejudicial to the honor of the author's name, they can prevent the use of their name on the work.
The only rights you (and the original holder) have is to stop others from copying it (that means you can -still- legally track down the art thief who is reposting your MLP/Shrek porn, and take legal action against them, however, tread with caution here, as this is a very dangerous train, since the original holder can also seek legal action against you).
So, tl;dr version, fanart is copyright infringement, and is illegal.
"But it's a parody! It's fair use!"
Not quite. Now, back in 2002, US Courts upheld that a work cannot simply be stricken down outright because it -might or might not be- fair use. All fair use claims are handled on a case-by-case basis.
"What does that mean?"
You don't decide if what you're doing is Fair Use. The courts do.
Thus far, my favorite misrepresentation of all of this is "The government doesn't enforce copyright law. It's the copyright holder who has to file a claim. So, if no claim is filed, you're in the green."
I can jaywalk any time I want, and the cops around here won't ticket me. It's still illegal, even if it's not being enforced. Non-enforcement does not equal legal.
Now, on the subject of fanart. How about fan created characters.
This is a fun area, because you start to slip from Copyright into Trademark, and this is where the difference between the two really shows forth.
Trademarks are registered elements, that, in a specific application, are tied to a good or manufacturer.
Examples. The Nike "swoosh", The McDonald's golden arches.
Character examples: Batman (not Batman, as in Bruce Wayne, but the application of elements. His insignia, the yellow tool belt, his pointed cowl and cape), Superman (his insignia, the blue outfit with red cape, his spitcurl).
These elements, when combined, can be trademarked, as they are representative of a "good" which is created and sold to the public.
Knowing the difference between copyright and trademark, here, is important. You cannot copyright any single one of these elements, but they can be registered, collectively, as representative of something larger.
The most interesting trademark I've seen is owned by Wiffle Co. (they make wiffle bats and balls).
The bat itself bears this marking on it: "The color YELLOW is a registered trademark of Wiffle Co."
It's actually legal, but it can be confusing.
The color yellow, in the application of plastic bats, is trademarked to Wiffle Co. Therefore, no other manufacturer can make yellow, plastic bats, without infringing on Wiffle's trademark.
Make sense?
Here's how it applies to fan characters.
You cannot simply change a name, or one characteristic of a character from a novel, movie, or comic, and claim it as "original work". You run a high risk of infringing on copyright and/or even trademark.
This was upheld not too long ago with a literary sequel to "The Catcher in the Rye". A man wrote a book, and legal action was sought against him, specifically for his main character, named Mr. C. (This applies more to fanfiction, but is still applicable). The infringement claim was that Mr. C -was- Holden Caulfield (the original character from Salinger's book). Even though it was never stated, the similarities were too hard to miss. Despite claims that his fanfic was "Fair Use" the novel was killed, and author wound up having to pay out to Salinger over copyright infringement.
Characters like Batman, Superman, Harry Potter, and Holden Caulfield here, are subject to copyright. However, generic characters are not. One cannot copyright "thug 3" just because he found his way into Batman, or Superman. To avoid infringement, you have to really push yourself outside the basic elements of a character to truly create something new.
I could create a guy named Supreme Commander, and dress him in Blue, with a big bullseye on his chest, and a red cape, and a spitcurl. I may not be infringing on Superman's copyright, but I am treading hard into trademark infringement (the blue suit and red cape, and the spitcurl), and can still be sued over it, unless I press hard into parody territory.
TL;DR version. Changing names or small things like hair/eye color does not make it original, and you are still, likely in copyright infringement and even trademark infringement.
My favorite area here. People complain about the whole "profit" thing, and compare selling a used video game.
The law even covers this one folks. Check it out. (Important, in regards to people who sell prints).
Section 109 states that, in regards to a particular copy of a work, the owner may sell, or dispose of possession of that particular copy, without the authority of the copyright holder.
This means that if someone buys one of your prints, they can sell that print to someone else, if they so choose (but they cannot copy it, nor can they sell copies of it, this applies only to that specific purchased copy).
Lastly, misrepresentation of the © symbol.
The proper format for the symbol is thus:
© <year in which the work was completed/first published> <name of copyright holder>
i.e.
© 2011 Marshall K. Wood
Things like "© me" don't work. It's actually an improper representation of the format.
Also "© verias" doesn't work, -unless- it's in full format, and the work -is registered- to myself, and in the pseudonym section (the forms for copyright have this) I put "verias" as my pseudonym.
Then I can put "© 2011 verias" on there.
Clear as mud?
Good,
I do hope this does help some of you guys out there in understanding it a bit more.
Regards,
Verias
Notes about the author of this article.
My name is Marshall Keith Wood, known throughout the fandom as Verias, and in some circles also as Keith W. I'm a freelance comic artist, typically illustrating work-for-hire projects. My experience with copyright, intellectual property, and United States Code is mostly one of interest, but also one of a desire to better understand my rights, and the rights of those I work with/for. The article above is not meant to be used as legal advice, or substituted as such. If in doubt, get a lawyer.
If that's what copyright really actually says, then that's the law, plain and simple. I just feel like I'm missing something obvious.
a) Is the character readily distinguishable without the accompanying work that is originates from?
b) Is the character unique enough in design, personality, experience, and appearance, so as to not be confused with another?
That and while it's morally wrong for people to draw MLP characters to sell for prints @ $5 a pop or commissions for $30, let us not forget the REAL creators can sell a mere MLP sketch for over $2,000+. =P
But I Do see what you mean, which explains why some artist refuse to draw trademarked/copyright chars too.
=>.>=
Either way this is a very great read! I read a bit on it in my Law class for school couple months ago :3
Just, instead of "when requested" to "a specific individual", to others as a whole, at the time the Commons' license is applied.
It is a good start to fixing things, ultimately, but still a long way away.
Harry Potter is a pretty good example here. The story takes place on earth, using magic, a school, and a big bad guy. None of these elements, as stated here, can be copyrighted. Hogwarts, Harry Potter, and Voldemort all can be. The magic is still fair game, because it's still incredibly general, and you can't copyright words, even spoken.
Once again, this is where it gets really muddy, the Harry Potter works, as a whole, can be copyrighted (and are), which is to include all of the elements that contribute to the construction of the story, which includes J.K. Rowling's system of magic.
Well, since this is the case, I'm sticking to my on-going philosophy here: I'll stop when I get a cease and desist. :D
I should specify that what I meant when I said that it's not infringement unless you're successfully prosecuted for it wasn't meant to mean "it's only wrong if you get caught," as it were, as much as it was meant to emphasize that it's up to companies to pursue infringement and up to the courts to decide if infringement has happened, and to make clear that most copyright and trademark holders plainly don't care. There have been a few cases in the past of creators going after fan art and fan fic (Anne McCaffrey being a rather infamous example), but almost universally that has generated such a backlash from their fans that original creators are starting to view fan derivative works as an asset rather than a liability. After all, it shows an emotional investment in it, and that means more money coming back to them.
Ultimately, I do understand what you're saying here. Yes, technically, if you're taken to court over this you're probably not going to win unless you have a spectacularly good "fair use" defense and a sympathetic judge. What I'm predicting, though, is that the law is likely to move away from this in the future as companies are starting to wise up that fan involvement increases interest in their product. We may never get derivative works laws as permissive as Japan's, but I think we're definitely moving more in that direction, which is why I was encouraging people not to worry about it unless a C and D shows up in their mailbox.
Let me dig up sources and I'll put the rundown here.
Back in 1984, an artist named Jeff Supon sent DC some original sketches of a proposed idea of where Batman should go next, apparently hoping to become an artist for the company. DC never replied to him, and he relabled the work "Black Bat".
In 1999, after the release of "Batman Beyond," he brought suit for copyright infringement, claiming that the new series incorporated the designs he submitted 15 years prior. He got creamed. DC won its defense against his claim and won its counterclaim that his designs infringed upon their intellectual property.
The moral here? Don't draw attention to yourself.
I really liked the way you illustrated some of the points, and I think it will make certain things easier for the audience to understand. I will, of course give credit to you (Verias) for this.