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A brief explanation/FAQ of copyright law
12 years ago
DISCLAIMER: This should not be treated as legal advice. This is merely my analysis and commentary based on my copyright law class, and it is intended to give you a brief rundown of the basic concepts and terms of copyright law so that you'll know what you're talking about if you think you have a copyright issue. All of the intricacies of copyright law are WELL beyond the scope of this guide, so do not think that merely reading this will tell you all you need to know. ALWAYS consult a lawyer if you have legal concerns. There are plenty of them that offer free consultations, and you'll probably make a mistake or make matters worse if there's an actual issue and you delay speaking to a lawyer.
With that said, let's begin!
What is copyright?
Copyright is the right of the copyright holder to use, reproduce, and essentially profit from their original expression. The exact rights granted by a copyright are discussed below, as are the usual subjects that obtain copyright protection.
How do I get a copyright?
A copyright is obtained automatically when you (or someone employed by you) fix an original idea into a tangible medium of expression - you've stored it in such a stable or fixed way that it can be viewed, reproduced, or communicated for "more than a transitory duration." For example, a poem that you wrote on a piece of paper has obtained copyright-protection, but breathing onto glass and writing the poem there would not suffice. You do NOT need to apply for a copyright in order to protect your work, but applying for protection does make it easier to make a claim for copyright infringement.
What kinds of works can be copyrighted?
Literary works, artistic works, musical works and their accompanying words, dramatic works and the accompanying music, pantomimes and choreographic works, motion pictures, audiovisual works, (some) computer programs, and more. Ideas are NOT copyrightable. These include systems, processes, concepts, characters, or settings (see below for a more detailed discussion of characters and settings).
What if my work has some original and some unoriginal parts?
Only the original parts will be protected. For example, the Shakespearean play Hamlet is in the public domain, so merely reprinting it will not grant a copyright (nor would it infringe on a copyright). However, if you reprint the play, then add annotations, a foreword, commentary, and analysis, then those parts will be copyright-protected. This has created a rule of thumb for public domain works - you can copy the original, but you can't copy the copy.
What rights do I have with a copyright?
The usual list of rights include: a right of reproduction, a right of distribution, a right to prepare derivative works, a right of public performance, a right of public display, and a right of digital performance. The intricacies of each right are beyond the scope of this guide, so I'll just give a brief summary of what happens after you commission something. The artist will generally hold all of the rights to the image. This means that they can make and sell copies of it or display it on FA or at a table during a convention. Since you lawfully acquired a copy of that image, you have the right to display it in public, but not to make reproductions or to sell it (don't panic, be sure to read the fair use section too!).
What is copyright infringement?
Copyright infringement is the unlawful violation of one of the rights granted to a copyright holder through the copyright. There are four elements to such a claim. First, did the work that was allegedly copied have copyright protection? (If the copyright has been registered, then this step is skipped since it is assumed true). Second, what right was infringed upon? (See the previous section for examples). Third, was there actual copying? (Did the alleged copier have the opportunity to view and copy the original work?). Fourth, is there a substantial similarity between the two works? Generally if all of these are met, then there is a valid claim of copyright infringement. But all is not lost for the defendant, for there may be a fair use defense (see below).
What is fair use?
Fair use is an affirmative defense to a claim of copyright infringement. An affirmative defense means that you are admitting that you did the crime (the affirmation), but that your explanation should relieve you of any punishment (the defense). There are a few common categories of material protected by fair use, such as commentary, criticism, news reporting, parody, teaching, or research. There are several factors that a court considers when analyzing a fair use defense, but the general goal is to ensure that the market for the copyrighted work is not adversely affected.
Are characters copyrightable?
It depends on the character's development. In general, characters are NOT copyrightable. However, if a character is sufficiently distinct and/or sufficiently developed, the character may receive copyright protection. It is also FAR more likely for a character to receive protection if they are visually represented. For example, the main cast of characters in an RPG, comic series, or animation are probably copyright protected, but the background NPCs, like the random villagers or shopkeepers, most likely are not. To put it another way, one court said it like this, "Would a James Bond film without James Bond be a James Bond film?" Is the audience viewing the expression because of the character? Or because of something else? Ultimately, there's no way to be sure if a character is protected, but if you'd recognize the character anywhere or identify certain mannerisms with that character, they're probably protected.
If I want to portray my character as a copyrighted character, is that copyright infringement?
Generally yes, but it would also qualify for a fair use defense. Let's use the MLP universe as an example. Portraying your character as a character from the show would probably qualify as infringement because, as discussed above, the character in the show is probably sufficiently defined as to be copyright-protected. Your character portrayed as that character would be considered a derivative work, and thus would infringe on the copyright holder's right to prepare derivative works. But then again, are you harming the MLP market? Most likely not, and in fact you're probably generating more support for the show, so it would qualify for fair use.
What about just having my character drawn in that style or in that setting?
Probably not. Remember that ideas, methods, and similar are NOT eligible for copyright protection. A particular art style would probably qualify as a method or process, and thus would not receive protection. Hence, continuing the MLP example above, having your character drawn as a pony in the same style as the characters in the show would not infringe on a copyright because there's no copyright to infringe! Settings would probably be the same thing. This is entirely hypothetical, but I think settings would follow the same logic as characters - a setting that is sufficiently developed or unique would probably receive protection. For example, a random desert planet that you named and created would have no problems, but if you said that a character is from Arrakis or Tatooine, then you'd have a problem. Again, keep fair use in mind. Are you harming the market for the original by placing your character in that universe? Most likely not, so fair use would probably keep you safe.
If I commission someone, who owns the copyright?
It depends on the employment status of the person you are commissioning. If they are your employee, and you hired them for the specific purpose of inventing, then you own the copyright; but if they are an independent contractor, then they own the copyright. For the most part, the artists that you commission on FA or DA would be considered independent contractors. So if you commission them to draw your character, they will own the copyright to the image, while you retain the copyright to the character.
If you have any further questions, feel free to contact me and I'll do my best to help or direct you to someone who can.
With that said, let's begin!
What is copyright?
Copyright is the right of the copyright holder to use, reproduce, and essentially profit from their original expression. The exact rights granted by a copyright are discussed below, as are the usual subjects that obtain copyright protection.
How do I get a copyright?
A copyright is obtained automatically when you (or someone employed by you) fix an original idea into a tangible medium of expression - you've stored it in such a stable or fixed way that it can be viewed, reproduced, or communicated for "more than a transitory duration." For example, a poem that you wrote on a piece of paper has obtained copyright-protection, but breathing onto glass and writing the poem there would not suffice. You do NOT need to apply for a copyright in order to protect your work, but applying for protection does make it easier to make a claim for copyright infringement.
What kinds of works can be copyrighted?
Literary works, artistic works, musical works and their accompanying words, dramatic works and the accompanying music, pantomimes and choreographic works, motion pictures, audiovisual works, (some) computer programs, and more. Ideas are NOT copyrightable. These include systems, processes, concepts, characters, or settings (see below for a more detailed discussion of characters and settings).
What if my work has some original and some unoriginal parts?
Only the original parts will be protected. For example, the Shakespearean play Hamlet is in the public domain, so merely reprinting it will not grant a copyright (nor would it infringe on a copyright). However, if you reprint the play, then add annotations, a foreword, commentary, and analysis, then those parts will be copyright-protected. This has created a rule of thumb for public domain works - you can copy the original, but you can't copy the copy.
What rights do I have with a copyright?
The usual list of rights include: a right of reproduction, a right of distribution, a right to prepare derivative works, a right of public performance, a right of public display, and a right of digital performance. The intricacies of each right are beyond the scope of this guide, so I'll just give a brief summary of what happens after you commission something. The artist will generally hold all of the rights to the image. This means that they can make and sell copies of it or display it on FA or at a table during a convention. Since you lawfully acquired a copy of that image, you have the right to display it in public, but not to make reproductions or to sell it (don't panic, be sure to read the fair use section too!).
What is copyright infringement?
Copyright infringement is the unlawful violation of one of the rights granted to a copyright holder through the copyright. There are four elements to such a claim. First, did the work that was allegedly copied have copyright protection? (If the copyright has been registered, then this step is skipped since it is assumed true). Second, what right was infringed upon? (See the previous section for examples). Third, was there actual copying? (Did the alleged copier have the opportunity to view and copy the original work?). Fourth, is there a substantial similarity between the two works? Generally if all of these are met, then there is a valid claim of copyright infringement. But all is not lost for the defendant, for there may be a fair use defense (see below).
What is fair use?
Fair use is an affirmative defense to a claim of copyright infringement. An affirmative defense means that you are admitting that you did the crime (the affirmation), but that your explanation should relieve you of any punishment (the defense). There are a few common categories of material protected by fair use, such as commentary, criticism, news reporting, parody, teaching, or research. There are several factors that a court considers when analyzing a fair use defense, but the general goal is to ensure that the market for the copyrighted work is not adversely affected.
Are characters copyrightable?
It depends on the character's development. In general, characters are NOT copyrightable. However, if a character is sufficiently distinct and/or sufficiently developed, the character may receive copyright protection. It is also FAR more likely for a character to receive protection if they are visually represented. For example, the main cast of characters in an RPG, comic series, or animation are probably copyright protected, but the background NPCs, like the random villagers or shopkeepers, most likely are not. To put it another way, one court said it like this, "Would a James Bond film without James Bond be a James Bond film?" Is the audience viewing the expression because of the character? Or because of something else? Ultimately, there's no way to be sure if a character is protected, but if you'd recognize the character anywhere or identify certain mannerisms with that character, they're probably protected.
If I want to portray my character as a copyrighted character, is that copyright infringement?
Generally yes, but it would also qualify for a fair use defense. Let's use the MLP universe as an example. Portraying your character as a character from the show would probably qualify as infringement because, as discussed above, the character in the show is probably sufficiently defined as to be copyright-protected. Your character portrayed as that character would be considered a derivative work, and thus would infringe on the copyright holder's right to prepare derivative works. But then again, are you harming the MLP market? Most likely not, and in fact you're probably generating more support for the show, so it would qualify for fair use.
What about just having my character drawn in that style or in that setting?
Probably not. Remember that ideas, methods, and similar are NOT eligible for copyright protection. A particular art style would probably qualify as a method or process, and thus would not receive protection. Hence, continuing the MLP example above, having your character drawn as a pony in the same style as the characters in the show would not infringe on a copyright because there's no copyright to infringe! Settings would probably be the same thing. This is entirely hypothetical, but I think settings would follow the same logic as characters - a setting that is sufficiently developed or unique would probably receive protection. For example, a random desert planet that you named and created would have no problems, but if you said that a character is from Arrakis or Tatooine, then you'd have a problem. Again, keep fair use in mind. Are you harming the market for the original by placing your character in that universe? Most likely not, so fair use would probably keep you safe.
If I commission someone, who owns the copyright?
It depends on the employment status of the person you are commissioning. If they are your employee, and you hired them for the specific purpose of inventing, then you own the copyright; but if they are an independent contractor, then they own the copyright. For the most part, the artists that you commission on FA or DA would be considered independent contractors. So if you commission them to draw your character, they will own the copyright to the image, while you retain the copyright to the character.
If you have any further questions, feel free to contact me and I'll do my best to help or direct you to someone who can.
Remember, you do NOT have to apply for a copyright. Simply fixing an original work in a tangible medium gives that work copyright protection. It happens automatically and you don't have to fill out any paperwork. Copyright registration just makes it easier to file a claim of copyright infringement since that establishes that the work is copyright protected.
As for poses, those might fall under the choreography category, but that would require that the pose is part of some larger routine. A single pose is probably not protected unless it was -very- unique
First, does Disney have a copyright in Robin Hood? Probably, as they portrayed him in that film. He has a well-developed personality, and is the central focus of the movie. There is a time limit on copyrights, but the MPAA keeps on lobbying for extensions, and there's no indication that they'll ever stop.
Second, what right was infringed? It seems like the character that the person created is heavily based on Disney's Robin Hood, so it sounds like a violation of Disney's right of reproduction, or at least the right to prepare derivative works.
Third, since the entire movie can be found on Youtube, it's pretty clear that the person who made the character had the opportunity to access the original work.
Fourth, it seems like there would be a substantial similarity between the two, so all of the elements of copyright infringement are met.
Now does Disney have a good claim? Most likely not, since the person would have a fair use defense. If their own Robin Hood character is just for their own enjoyment and they aren't trying to market him anywhere, then fair use would probably protect the person. Now if they were producing pictures of their own Robin Hood and selling them at cons...then there might be a problem.
In addition to the fair use defense, like any legal battle, it is very expensive to pursue a claim of copyright infringement. Since most furs don't have a lot of money, it would probably cost Disney at least as much, if not more, than they could possibly earn by pursuing a claim. In that case, they probably wouldn't care.