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Submitted on
April 9, 2012


193 (who?)
It's sad to see people fighting about intellectual property rights when they apparently have no clue what those are, how they work and what is allowed (and not).

Prime example: boltstrueno1fanever.deviantart… vs.

Obviously the latter is similar to the first.

The question is: is this allowed?

To answer that question, it is important to understand what rules apply and what intellectual property (IP) is.

There are three different kinds of IP that can apply here:

1. Copyright
As the name hints this is the right to make copies of a work. It does not protect ideas, only the actual recorded work - artwork, documents, music etc.

This means that if someone copies your art (by directly copying it, by tracing it or otherwise adapting your work) you can certainly take action, but there is little you can do to prevent someone else creating their own work based on a similar (or even the same) idea as long as they are not copying your actual work to do so.

If you are inspired by the work of others, that is fine and nobody can stop you, but when you create a work of your own, start with a blank sheet and do not try to copy what others have made.

In the Ox vs. Onyx case above, the character Ox is obviously based on the same idea as the character Onyx. However, it is also quite obviously not a copy of Onyx. This means there is no copyright infringement here.

Copyright does not apply to items such as names and titles.

Even if "Ox" is similar to "Onyx", this is not a case of copyright infringement. Not even if the characters had identical names would this be copyright infringement.

Names and titles and stuff like that is covered by a different area of intellectual property protection:

2. Trade mark

A trade mark (or trademark) is some kind of sign or indication used by someone marketing a product (or service) to distinguish this product from those of others. It is a way to protect a producer's or a product's reputation from being tainted by inferior copies.

A famous example: Coca-Cola

If someone else sold really cheap and bad soda labeled "Coca-Cola" (to make immense amounts of money), you as a consumer would think "eww Coca-Cola is bad" and not buy it. This hurts the reputation of the real product! It would simply not be fair to the real producer.

Trade mark protection makes sure that you as a consumer can know that the product you are buying is the real thing.

Hello Kitty is a good example: nobody can produce Hello Kitty pens, pen cases, backpacks, mugs etc. except Sanrio corp. (or those with their permission).

Trade mark infringement is why cheap copies of Gucci bags, Rolex watches etc. are illegal. If a consumer buys a cheap "Gucci" bag and it breaks after a couple of weeks (because it is of lower quality, or it wouldn't be so cheap!), that hurts the reputation of the real Gucci, who spend enormous amounts of money making quality bags. Not fair!

It is theoretically possible to register the character Onyx above as a trade mark for a class of products, e.g. candy, shoes, electronics, cars etc.

If that were done, nobody else could use that character or its likeness to sell products in the same class, if there was a possibility of the consumers confusing them with the "real thing".

Nobody is trying to sell e.g. Ox shoes to unfairly compete with all those Onyx shoes on the market. No trade mark infringement here.

A product's likeness can further be protected by a little-known kind of intellectual property:

3. Design protection

This is a protection of the appearance of a product, or simply the way a product looks.

This includes things as shape, colours, texture, materials and so on.

To claim design protection, the design has to be new. This means no identical (or very similar) design has already been published before.

It also has to have individual character. This means it has to be different from the appearance of all other already known designs.

Only a three-dimensional shape is protected unless you register your design. Colour patterns etc. are not protected otherwise.

In the Onyx vs. Ox case above, Onyx has a design consisting of the colour pattern, markings etc. This could theoretically be registered as a protected design for something, like a plushie for example, and then nobody else could sell plushies with that design - but 2D fan art would still be legal!

However, as it is not a registered design, there is no design protection for Onyx.

4. Original character protection

Oopsie, I said three kinds, not four, right?

Right. There is no such thing as "original character protection". Got you there, didn't I? :)

I see lots of times people making their own fan art, and then putting "character belongs to X", "OC Naruto © Kishimoto" or something like that.

This is nonsense. It is your work (unless you copied it!), not Kishimoto's. A name does not have copyright, and an idea does not have copyright.

And no, if you do actually copy someone's work (getting inspired and doing fan art does not count, as I just told you), adding "blah © original artist" at the bottom does not help, it's still illegal if you don't have permission!

On the other hand, if it's not a copy, then that thing just shows everyone how ignorant you are about how copyright works :)

Hopefully you feel more informed now!

In any case, always remember:

Imitation is the sincerest of flattery.
– Charles Caleb Colton (1780-1832)
Add a Comment:
PaintedCricket Featured By Owner Jun 13, 2012  Hobbyist Digital Artist
You can still protect designs through trademark, and I'm pretty sure that Superman, Naruto's face, and all the Pokemon have been registered for protection (except in Japan itself, where you see fan mangas for sale without a problem or a butthurt artist).
miontre Featured By Owner Apr 12, 2012  Hobbyist Photographer
This is super helpful! :)
marhaus Featured By Owner Apr 13, 2012   Digital Artist
Thanks :D
GrimFace242 Featured By Owner Apr 11, 2012   Writer
Actually. You're wrong.

And since I don't have lots and lots of time to explain exactly HOW you're wrong, I'll just give the most perfect example of it.

Say, I draw a picture of Mickey Mouse getting sodomized by Donald Duck and submit it for a print on dA.

By your logical, it's legal because I'm not creating an exact duplicate of Disney trademarked characters.

But it is in fact illegal. Disney will and have gone after artists that try to sell anything relating to their characters without permission. Because they OWN the characters.
marhaus Featured By Owner Apr 12, 2012   Digital Artist
Rule of thumb:

If the government comes after you, it's a copyright case. Copyright infringement is a criminall offence.
If a company comes after you, it's a trade mark case. Trade mark infringement is a civil offence.

In fact, Disney more or less has to try to defend their trade marks when they think they are infringed. A trade mark that you do not defend may be declared invalid.

Also, bear in mind that just because Disney thinks you are doing something wrong does not mean that you are :)
marhaus Featured By Owner Apr 11, 2012   Digital Artist
Sorry but you are confusing copyright and trade marks.
Yutaki Featured By Owner Apr 11, 2012  Hobbyist Traditional Artist
Two things:
If I draw fanart I also always put The Characters name plus the series/manga whatever he is from at the bottom of my description then the copyright c and then the people who thought of it. Under that I put the Name of my picture then the copyright sign again and my name.
I don't want to show that this is really copyrighted by any of us (since it's not I already knew that before)
So I think here is a good opportunity to ask what I've been asking myself for quite a while now:
Is there something more fitting I can put at the bottom of my description? If I draw Fanart I want to let people know what the characters names are and which series they are from but also that this is drawn by me and not copied or something and if I drew this with the help of someone else I also want to mention him at the bottom^^
Does anyone have any ides so this stays as short as it is just without the copyright c and so everybody still understands it?^^

And a second question:
What if somebody wants to sell fanart. Not something copied but something he/she thought of him/herself that just includes the character of a series?
Because I've seen that in most countries people sell posters and stuff with characters of series that doesn't belong to them. But here in Germany it's forbidden on Conventions!
Who's in the wrong here? I just can't imagine that it's allowed to make profit with characters that are part of a series... On the other hand the picture may be good in itself so you don't just sell the characters on them but the work you put into it.
Can you help me with this too? oxo
marhaus Featured By Owner Apr 11, 2012   Digital Artist
I think just writing something like this would give people the information they need if they want to check out the original:

Original character by X.

Germany has a few odd quirks in its copyright legislation, but in this case it sounds like the conventions are probably just afraid that the line between copying and imitating is hard to draw in some cases, so they say "better safe than sorry" and just ban it altogether :)

You can certainly sell art that you own the copyright to! Just bear in mind the stuff I mentioned about trade marks.
Yutaki Featured By Owner Apr 12, 2012  Hobbyist Traditional Artist
Okay, I will try that ^0^

It's really unfair that we in Germany can't sell like people in other countries it really gives us a disadvantage uxu

Thank you very very much for this answer ^0^
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