A few questions about art-related copyrights

← Return to forum

  • Hi,

    After reading through as much Copyright information as I could find, I wasn't able to come to a clear conclusion about a couple of questions I have in regards to copyrights on characters. Any help would be greatly appreciated.

    I have created a cartoon/comic series with a number of characters in it. Originally the idea came from stories I had written about a pre-existing, copyrighted series, but over time the characters and stories themselves evolved (in both appearance and base ideas) to the point where it no longer bears any relation or ressemblance to my original inspiration. Having told a few trusted people about the idea they had no idea it originally started out as what would be termed 'fan fiction'( which as far as I know is technically a copyright infringement in itself, which was a part of the reason I reworked everything to make the characters and story unique).
    My first question is, am I able to copyright this series and the characters?

    My second scenario is based on another series I created that is supposed to be a parody. I know that there are certain exceptions in using copyrighted characters (or parody version of them, slightly changed but recognizable) but was curious.
    Say in my series I have a character that's a parody of Superman, except he has orange hair, yellow skin, and wears a green suit with a random letter on his chest. Let's call him 'Mighty Dude'. He's obviously a parody of Superman, but not exactly the Man of Steel.
    Am I able to copyright this character, or would I be unable to do so because the series itself is a parody?

    My third question is, if I acquire a copyright to the characters in my series, and then decide to change the way they look (say they have a costume change or something along those lines for a period of time) do I still retain the copyrights on their original appearance? I'm presuming that I would considering the many ways Superman and Spiderman (amongst many other heroes) have been changed and updated), but wanted to be certain.

    I have a few other questions, but I'll hold off for now. Maybe the answers to these questions will help me answer the other on my own. Thanks in advance for any insight.
  • Interesting questions. First, you do not need to go through any formalities (such as registering) for you to have copyright in a work. As soon as the work is expressed and "fixed" in some way, you have copyright in the work. You can go through formalities if you wish additional protection. Second, fan fiction may or may not be copyrightable. Chilling Effects (http://www.chillingeffects.org/ has a good FAQ about copyright and fan fiction. Now, if you have characters that are in no way similar to existing characters, even if the idea for the characters may have started somewhere else, you probably have copyright in those characters. Parody is a fair use of copyrighted materials, but I would read up on parody to make sure that what you're doing is legally considered a parody. The legal definition of parody is not quite the same as the colloquial (or even common literature) definition of parody. If you do have a parody, then you do have copyright in the parody, but that does not mean that you have any copyright interest in the original work. Someone couldn't copy you exactly, but they could make their own parody of the original work, for example. You have copyright in anything as soon as it is in fixed form (ie, written down, saved, etc.). So, you have copyright in the original as well as subsequent costumes as soon as those costumes are in a fixed form. There are complications, naturally. ^_^ Copyright in characters gets a bit complicated.
  • Thank you very much for this information COvalle, I greatly appreciate it!
    I have been to Chilling Effects and found a ton of useful info I'll be keeping in mind with my work :)

    A couple of other questions if you or anyone else wouldn't mind advising me.

    What exactly constitues a derivative work? From what I've read it's pretty much when you create a character or series based on something that already exists.
    I ask because I worry about my style being misinterpreted or seen as me creating a character based on another established series. Because my style has been infulenced by a number of different artists, I'd say that some of my created characters could be dropped in some established franchises and fit right in. How close is too close? I'd hate to have what I think is an original cast of characters shut down because they look too much like someone else's work or employ a gimmick that's similar.
    For example, in one series I have a character who rides a motorcycle. This motorcycle also turns into a humanoid robot. Although it looks nothing like anything in the established "Transformers" series produced by Hasbro, would they have grounds to come in and say I can't use the robot character? Or is that more of a Trademark issue?

    One last question:
    I recently found myself in a situation where an art partnership I was in took a nosedive. A majority of the work was done by me (original characters, etc.) but not all the work was made public, as there were a lot of works I sent to my partner via email and never thought about posting, especially once the collaboration fell apart. Recently I discovered that my ex-partner had begun taking drawings I sent via email, coloring them and began posting them in an online gallery claiming to have created the work itself and ownership of the character. When I approached the gallery owners and requested the images be removed, they essentially told me that because my ex-partner posted the images first and I had no online record of the original work they had to assume the pictures belonged to her, claiming I needed something with a 'timestamp' despite the fact that I sent them a scanned image of my original drawing comparing the two works, which match line for line.

    In this instance it's starting to seem like my natural copyright to my own work doesn't mean anything because I didn't think to post the work online before my ex-partner. Any suggestions on (as ridiculous as it sounds) to prove I created my own work? I mean, just to be on the safe side I've added anything I sent to my ex-partner via email to my own gallery just to establish a timeline, but don't like having to do that to protect my original ideas, as now they're out in the open for anyone to look at.

    Thanks again for any and all advice.
  • I'm afraid most of your questions need to be addressed by a lawyer, not us. The question on what is a derivitate work is an excellent one, but unfortunately doesn't have a difinitive answer-only a court can determine that.

    You do own the copyright on your original drawings, but if you have sent a cease and desist to the website and they have refused takedown, then my general feeling is that your next step is legal action. And to file an infringement suit, you must register your work. Don't you have the original in a send file in your email that is date and time stamped? Or a creation date on the file itself?

    I don't believe Hasbro can own the idea of a form-changing toy. There are many on the market and GoBots was popular at the same time as Transformers and incorporated the same idea. Remember that the idea can't be copyrighted, only the expression it takes. And I'm sure Hasbro did not come up with the idea of a vehicle changing into a robot.

    Any others with a more informed opinion?
  • The definition of a derivative work, from US copyright law, 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”.

    If you continue reading Chilling Effects, you can find examples of a proper cease and desist notice. C&D's have to fulfill certain requirements set out by law. Internet Service Providers must take down the infringing work, and allow the opportunity for the alleged infringer to respond. If they do not, then they lose safe harbor protections granted to them by the Digital Millennium Copyright Act. Really, at that time you need an attorney.

Posting to the forum is only available to users who are logged in.

← Return to forum