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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. fav.me/d4vcima

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)
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:iconpaintedcricket:
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).
Reply
:iconmiontre:
miontre Featured By Owner Apr 12, 2012  Hobbyist Photographer
This is super helpful! :)
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:iconmarhaus:
marhaus Featured By Owner Apr 13, 2012   Digital Artist
Thanks :D
Reply
:iconinknalcohol:
inknalcohol 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.
Reply
:iconmarhaus:
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 :)
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:iconmarhaus:
marhaus Featured By Owner Apr 11, 2012   Digital Artist
Sorry but you are confusing copyright and trade marks.
Reply
:iconyutaki:
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
Reply
:iconmarhaus:
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.
Reply
:iconyutaki:
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^
Reply
:icontaschasan:
Taschasan Featured By Owner May 23, 2012  Hobbyist General Artist
In Austria it's similar...
But it's not "copying vs. imitating", it's trademark infringement here, because you use the charaters and ideas from someone else to make money, but he/she will get less, so that's unfair. I can't go run around selling Harry Potter comics. (Unless I have the written permission from J.K.Rowling... not like that would ever happen XD)
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:iconyutaki:
Yutaki Featured By Owner May 28, 2012  Hobbyist Traditional Artist
Oh, one other country that suffers with us Germans? Great, I guess xD

Well, I actually started writing the companies that own the characters I want to draw. Perhaps they will answer^^"
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:icontorchfang:
torchfang Featured By Owner Apr 11, 2012
Not only is this informative, but it's nice to see someone WITH a brain talk about copyright, and not someone trying to mass nuke all sharing without even knowing how the internet works.
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:iconmarhaus:
marhaus Featured By Owner Apr 11, 2012   Digital Artist
yay for having a brain :D
Reply
:icontorchfang:
torchfang Featured By Owner Apr 11, 2012
:la: *dances*
Reply
:iconshinnlorankira:
shinnlorankira Featured By Owner Apr 11, 2012  Hobbyist Artist
I think it's odd how riled up people get over protecting their characters. >.> I mean most stories and films, even (especially) Disney are based off other things. Disney, who gets mad if you make porn but is said to have ripped off Kimba and who's defense is "Try us, we have better lawyers", and who's pure fairy tale princesses generally had sex and such in the originals. Or Anne Rice who gets her panties in a bunch because people write fanfiction even though her vampires are hardly hailing in originality, and arguably she could be said to have blatantly copied people who came before her. People get mad that their special character is 'taken' from them, when in fact it's normal to try to recreate something you love.

I'm happy you wrote this, and I also giggle at the many people who try to correct the grammar of a quote, as if you wrote it. Grammar Nazi's are also a funny breed when they try to enforce modern Grammar, which people in ye olde days would call awful, on olden Grammar. xD I also enjoy how you respond to people's questions. All in all, good job.
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:iconmarhaus:
marhaus Featured By Owner Apr 11, 2012   Digital Artist
Couldn't agree more :)
Reply
:icondtfox:
DTfox Featured By Owner Apr 10, 2012  Hobbyist Digital Artist
Can you explain this article from a qualified lawyer? [link]
It says that a sufficiently detailed and original character is generally protected by copyright and shows several cases where ownership of a character was being disputed in court.

I don't wish for such a popular news article here to be possibly spreading misinformation.
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:iconmarhaus:
marhaus Featured By Owner Apr 14, 2012   Digital Artist
OK now I have read it.

What it says is that characters as expressed are copyrightable. This means how they are described textually or as art.

To be protectable they also have to have sufficient originality.

This is entirely consistent with what I said in my journal, the main difference being that your (very nice) article deals mainly with textual expression while I dealt with visual expression of a character.

Thanks for a nice link!
Reply
:iconmarhaus:
marhaus Featured By Owner Apr 11, 2012   Digital Artist
Thanks for that link. I'll have a look at it and get back to you!
Reply
:iconshinnlorankira:
shinnlorankira Featured By Owner Apr 11, 2012  Hobbyist Artist
Something to know about lawyers. They say whatever benefits the person who has currently retained them, or the person they hope to be retained by. My family was threatened by lawyers for an online gaming company for an entire summer who used illegitimate tactics to try and force us to do things we told them we couldn't even do, and tried to ultimatum us into signing contracts promising things we couldn't. This was a 'respected' law firm, well known in CA btw.

And since he references Disney, I would advise looking up the complexities of Disney's Steamboat Willie. Basically Disney alone continues to make certain laws get extended on the basis that if they don't, they'll lose the protection of Mickey Mouse, which is not true. But some people have argued they don't even have protection on SteamBoat Willie because it wasn't properly done in the first place. And BTW Disney's defense is, always will be, and always has been "Try our lawyers, they're much better than yours". Pretty much take how a lawyer interprets the law with a grain of salt, because even ones all for freedom of speech are doing it in a way that benefits their cause.

That's NOT to say he's entirely wrong, but how right is he? That'd probably be for the party with the best lawyers to decide in a setting called court.
Reply
:icondtfox:
DTfox Featured By Owner Apr 11, 2012  Hobbyist Digital Artist
I suppose I can't find any evidence to support the fact that characters can be protected but that means that companies can take all my ideas and make a fortune from it without any legal problems at all.
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:iconshinnlorankira:
shinnlorankira Featured By Owner Apr 11, 2012  Hobbyist Artist
I believe the generally accepted interpretation is that you can use other people's ideas, so long as you aren't using them to make money. Paraphrasing heavily. For instance, no one should care that you write fanfiction, so long as you aren't advertising yourself as that guy who writes the best Supernatural fanfics, so pay me now.

However just drawing fanart, or fanfiction, sometimes even selling it if it's based off the fact that it's YOU writing it/YOU'RE drawing style MAY be ok in some instances. This literally would be a case of who has the better lawyer. However no, no one can just steal your ideas and profit off them so long as you can prove they're yours along with a few other 'minor' details. <3
Reply
:iconraiudragon:
RaiuDragon Featured By Owner Apr 10, 2012  Hobbyist Digital Artist
thank you! excellent summary of copyright et al
Reply
:iconsoulxmonkey:
SoulxMonkey Featured By Owner Apr 10, 2012  Hobbyist Digital Artist
This information all applies to visual art forms. Do you know anything about audio copyrights? For example if I heard Beethoven's Fur Elise and did a wacky xylophone remix, would that be an infringement?
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:iconmarhaus:
marhaus Featured By Owner Apr 10, 2012   Digital Artist
Für Elise is in the public domain, so you can't infringe on the copyright on the music.

This means that you can perform it yourself without any problems :)

However, someone else's performance of Für Elise would be protected by copyright, even if the music itself is not. This means you can't take someone else's recorded performance and use it as you like.

Music that is not in the public domain but protected by copyright is a different matter: you can perform it yourself for friends or family (this is called fair use), but you can't perform it publicly without permission.
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:iconsoulxmonkey:
SoulxMonkey Featured By Owner Apr 13, 2012  Hobbyist Digital Artist
Yay! So it's true that the Happy Birthday song is actually copyrighted by somebody? :O

One more question. How about music from bands that aren't together anymore? i.e. Fall Out Boy, or Short Stack. Does somebody still own the rights to all the music they've made?
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:iconpaintedcricket:
PaintedCricket Featured By Owner Jun 13, 2012  Hobbyist Digital Artist
Unfortunately, it is. People have to change the lyrics to avoid the ridiculous thing.
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:iconmarhaus:
marhaus Featured By Owner Apr 14, 2012   Digital Artist
No, probably not (see this: [link]) and yes, the individual members share the rights.
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:iconstapledslut:
StapledSlut Featured By Owner Apr 10, 2012
I'm pretty sure Beethoven is public domain now, he MAY have been published before 1923
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:iconsoulxmonkey:
SoulxMonkey Featured By Owner Apr 13, 2012  Hobbyist Digital Artist
I checked, it's like 1867. Thanks!
Reply
:iconkagenoneko-maat:
KageNoNeko-Maat Featured By Owner Apr 10, 2012
This article is defiantly what everyone on dA needs.
Reply
:iconcasour:
Casour Featured By Owner Apr 10, 2012  Hobbyist Digital Artist
This really was a great read, thank you for clearing things up! Love just how clear and objective this is.
Reply
:iconxiaoyugaara:
xiaoyugaara Featured By Owner Apr 10, 2012
thank you for clearing things up
Reply
:iconasknepedog:
AskNepedog Featured By Owner Apr 10, 2012
((Aha! Thank you so much for writing this, I always got so confused about copywrite, ahaha. I was also confused (and slightly worried) that my fanart would be infringing copyright, but it appears not, thank you very much for clarifying :33))
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:iconduckmeow:
duckmeow Featured By Owner Apr 10, 2012
So how does copyrighting color palettes work?
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:iconmarhaus:
marhaus Featured By Owner Apr 11, 2012   Digital Artist
It probably doesn't.

It is very difficult to achieve the necessary originality by just combining a bunch of colours into a palette.
Reply
:iconduckmeow:
duckmeow Featured By Owner Apr 12, 2012
Colourlovers.com has a little copyright thing near the bottom right hand for each palette a user creates.
Reply
:iconmarhaus:
marhaus Featured By Owner Apr 13, 2012   Digital Artist
I just checked that site and I can't see how those colour palettes (which are essentially just a combination of five individual colours) could possibly have enough originality to be protected by copyright.

Of course, it's not illegal to claim that you have copyright, but that doesn't in itself grant you copyright :)
Reply
:iconpaintedcricket:
PaintedCricket Featured By Owner Jun 13, 2012  Hobbyist Digital Artist
If you can protect color palettes used together on shoes (and you can if you made it first-ish), you can copyright anything. Like those absurd plant gene protection laws.
Reply
:iconkagenoneko-maat:
KageNoNeko-Maat Featured By Owner Apr 10, 2012
I feel like you can't copyright color palettes or colors, but I would double check with copyright.gov just to make sure. They have a faq that might help you decide if you can copyright color palettes.
Reply
:iconttfaa:
TTFAA Featured By Owner Apr 10, 2012  Hobbyist General Artist
This was a very informative read! Thankyou for sharing. :)
Reply
:iconodddreams101:
OddDreams101 Featured By Owner Apr 10, 2012  Hobbyist Writer
This is why I write as opposed to arting.

Copy my work and I run a 10 word google search which will turn it up, paraphrase it and you've made my day, credit any idea I have and watch me explode into happiness and rainbows

Criticize my work and watch how many fucks I do not give XD
Reply
:iconyeahgirl11:
yeahgirl11 Featured By Owner Apr 10, 2012  Student Traditional Artist
What if someone named their kid a "trademarked" name? For example, you hear people naming their kids after cars all the time (Porsche, Mercedes, etc.). If that's a trademarked name, does it apply to HUMAN names too?

I wonder if anyone ever tried naming their kid Spiderman? :XD:
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:iconmarhaus:
marhaus Featured By Owner Apr 10, 2012   Digital Artist
Actually, Porsche is a last name in Germany and Mercedes is a common Spanish girls name :)

And no, you can't trade mark human names. So if you want to call your kid coca-cola, go ahead, but be prepared for a lot of fuss - and probably a lifetime supply of said soft drink for that kid :XD:

Might be name laws preventing that though, but those are very different in different countries.
Reply
:iconyeahgirl11:
yeahgirl11 Featured By Owner Apr 10, 2012  Student Traditional Artist
I thought Porsche might be German, haha.

:XD: Diabetes will probably result. :XD:

Oh, and about that- you're right. Some people in China tried to name their kid the @ sign, but the government didn't allow it. Some couple in Norway tried to name their kid this really weird long name, but the government didn't allow it. There was a certain name that the US forbids people from naming their kids, but I don't remember what it was.
Reply
:iconxenaris:
Xenaris Featured By Owner Apr 11, 2012
I think it depends on the country's laws. For example in Germany, you have to give your kid a gender-specific name and names that could be considered causing the kid trouble in life (like being called Coca Cola, which might ensure them constantly being laughed at) are prohibited. That means a name that is allright in the USA might not be okay in Germany and a name that is okay here might not be in the USA. I remember a family's story whose last-name was "Fucker" (pronounced "Foo-ka" When they emigrated to the USA they had to change the name, because the English pronounciation was unaccaptable.
Reply
:iconyeahgirl11:
yeahgirl11 Featured By Owner Apr 12, 2012  Student Traditional Artist
Oh I know, that's what I was saying. :XD: That's pretty interesting, I didn't know that. Hahahahaha, I'm sorry, that's too funny. :XD:
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:iconrigune:
Rigune Featured By Owner Apr 10, 2012
I have a question; a while go, i met a few high schoolers

who basically reference the example exact photo of another creation. There was a big argumenet of how it isn't infringing or any sort, so my question i ask you: is drawing an copy of the same exact photo (by simply referencing) infringing intellectual properties?

please mind my horrible english grammar, i notice I been getting bad at it lately,
Reply
:iconmarhaus:
marhaus Featured By Owner Apr 10, 2012   Digital Artist
Drawing a copy of a photo is probably infringing. Using a photo as a reference to create your own version of it is probably not.

I hope this helps :)
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