# Clearing Confusion About "Closed Species" And "I Copyright This Species/Character"



## LakotaWolf (Apr 29, 2013)

There seems to be a lot of confusion in the artistic world in general about what "copyright" actually is - and what it is not - and what it protects and doesn't protect. 

This seems to be especially true in the furry world, where a lot of us come up with amazingly creative characters and species. A lot of us have put a lot of time and effort into our creations. We have sometimes poured our hearts into our critters, and we often feel very protective of them. 

However, we have to be very careful about some of the things we say to other people, and we have to be careful of the threats we throw around.

So, I'm going to be short and to the point here.

You cannot copyright a species or a character.

You cannot copyright a design, either of a character/its markings, or a species.

You cannot copyright a specific way that a dragon's wings look or fold into its body, or a specific fur-and-scales pattern, or a specific hybridization of two or more species (e.g., a jackal-owl-wolf-honey badger hybrid).

I see a lot of posts about "closed species" and how the creators of these species have a "copyright" and that they will "sue" (or "kill") people if they make and sell critters of these species. 

There is absolutely no legal weight to this whatsoever. There is no copyright on this species. You - and I use the generic "you" here - I don't mean anyone specific - you do not "own" a design, no matter how unique and special you think it is. I guarantee you are not the only person on this planet who thought up a four-winged feline with a unicorn horn on its butt and three eyes with no pupils.


All of your own artwork is copyrighted, but your creature designs are not.


Designs and species are ideas and concepts, and ideas cannot be copyrighted - thus, species cannot truly be "closed", because a design can't be "owned" by just one single person.

This holds true for characters as well. Your characters cannot be copyrighted. ALL of your ARTWORK of the character is copyrighted, however. All physical media of the character is copyrighted - be it sculpture, painting, a woven mat depicting the character, etc. But the specific design itself? No. Someone else could draw a yellow and black wolf that looked exactly like my character Lakota, and they could sell prints of their artwork, and I could not claim copyright.

Taken from the United States Copyright Office publication at
http://www.copyright.gov/circs/circ01.pdf :

"What Is Not Protected by Copyright?

Several categories of material are generally not eligible for 
federal copyright protection. These include among others:


â€¢     ideas, procedures, methods, systems, processes, concepts,
principles, discoveries, or devices, as distinguished from a 
description, explanation, or illustration"

There is a caveat to all of this, however. If you are profiting off of your work - for example, if I was selling a lot of merchandise with my character Lakota on it, or if I had designed a cute fluffy dragon species and I was selling prints and plushies of it and basically making a living that way, I would actually have a legal leg to stand on in court if someone suddenly started selling artwork with similar characters on it. You would have to prove, in court, that you were sustaining monetary damages through the other person's actions (i.e., them selling the similar designs), so it's not like it's an automatic guarantee that you'd win. But it's at least a chance.

So, if you are just occasionally selling $5 adoptables of your dragon/cat design on FA, you don't exactly have the same aforementioned legal backing. 

You can also establish a deep backing/history/presence to your species to eventually establish copyright, like Anne McCaffrey did with her dragons of Pern. Obviously they were pretty generic dragons (despite the fact that they were physiologically specialized and pretty specific), but she established an enormous backlog of "presence" for them. She didn't just plop down a couple of blog posts and a few pieces of art and call it good. There were years and years and many novels that established the dragons as a specific, copyrightable presence. Obviously, people can still create their own fire-breathing dragons, and they can still create their own fire-breathing dragons that can teleport, but they CAN'T create their own fire-breathing dragons that can teleport through a place called Between.

Also, trademarks and the like are something entirely different that I'm not going to get into here - things like Wookiees, Klingons, and species like that ARE obviously trademarked and copyrighted. Those aren't the kinds of things I'm talking about here. I'm talking about when people paste wings onto an anthro cat and claim that they are a closed species and they copyright all anthro winged cats forever and ever. XD

I'm not trying to destroy anyone's dreams or plans - I think most people on FA are good people, and they'll respect requests that species remain closed. 

I think artists should still create closed species - that way the artist has more control over their creations, and there isn't as much dilution from what they want their critters to be. Open species are great too! (Think sergals, and how awesome they are, and how awesome some fan-sergal characters are!) 

But artists should not threaten people with legal action that they can't actually back up, and they especially shouldn't threaten people with bodily harm! XD

TL;DR - you can't easily copyright a species, and you can't "close" a species off from other people making critters that look like yours.


----------



## TigerBeacon (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

I laugh at all the adoptable stuff. How people spend so much money on them as if they're exclusive. As if they couldn't just draw the exact same thing and claim it as their own. I never understood that at all.


----------



## Taralack (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



TigerBeacon said:


> I laugh at all the adoptable stuff. How people spend so much money on them as if they're exclusive. As if they couldn't just draw the exact same thing and claim it as their own. I never understood that at all.



Me neither. I can understand if perhaps part of it is just to get some kind of artwork from that artist if their commissions are closed or something, but other than that, it's not hard to adapt a lot of the good aspects of designs into something of your own.


----------



## Arshes Nei (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

You can Copyright a character but it is tricky.

http://www.gogofile.com/Default.aspx?p=sc&ID=635028233325883750_5538

Here is a presentation done by people in the industry as to what is copyright and what is not.


----------



## FireFeathers (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

Ahhhh this take me back. I once wrote a massive "fuck off" news article on DA about this one time about 4 years back- I can't for the life of me find it now, but basically it was mostly what you put here, along with 'No one cares and stop being an uptight bitch about your wolf with wing species"  Made a lot of people mad, turned into this big debacle, got hounded by popular artists on the site who thought I was targeting them, you name it.


----------



## Lauralien (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

You can copyright a character or species, but...well...we're talking about Copyright Law here.  It's real fuzzy, gray-area stuff.

A brief google search led me to an interesting blog article, which should not be taken as legal advice (don't take ANYTHING you hear/read as legal advice unless you're actually sitting down with a lawyer and engaging in business with them), but it came with lots of interesting references to past court cases about this very issue.   

To TL;DR the article, though - it IS possible to copyright a character or species, and courts have ruled in favor of character copyright in the past.   

An example:
Neil Gaiman and Todd McFarlane went to court over who 'owned' several of the characters in _Spawn_ (the comic book series).   Gaiman essentially 'wrote' the characters, while McFarlane was responsible for their visual aspects.   McFarlane argued you couldn't copyright characters:  "If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician..." "...It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy." "...Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a *specific name and a specific appearance. Cogliostroâ€™s age, obviously phony title (â€œCountâ€), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character.*"

The thing about many characters within this fandom is that very little is established about them.  They are given a look, a name, and a basic personality...but they are often two-dimensional, and seldom placed within a "universe" of sorts.   The more you establish about your character and canon, the more likely you are to be able to claim you have a copyright on _not just_ your original art, but on the creations it represents.  

A blue winged dog is not copyrightable...but you *MIGHT* be able to copyright a blue winged dog name Hoofarook that lives on the planet Jugaranda, has black-and-white flashbacks to his past life where he was a pearl diver that died in a horrific hang glider accident, turns red when he's feeling nostalgic, always speaks in limerick, was abandoned by his parents because he was too blue for their tastes, has been getting by as a prostitute for the last 3 and a half years, likes eating cheese, is allergic to avacado, has a phobia of blank television/computer screens, is called Sir Fluffington by his friends, and is stalked by an invisible-ghost-creature that claims he used magic to made himself a ghost so that he could exist forever to find the Chosen One who will liberate the enslaved clam people of Righandian IV, which causes Hoofarook great distress, and makes him believe he's crazy, and he's always running away from the authorities, who desperately want to capture him to lock him away in the insane asylum, but it's really a plot to be rid of Hoofarook, the Chosen One, so that they may continue oppressing the clam people of Righandian IV, who are actually Hoofarook's _real_ parents, and are the descendants of hyper-advanced space-sloths that once ruled the galaxy in a golden age of peace and universal benevolence.


That said, because of the very subjective nature of what we feel "infringement" is, case law/precedent cannot be relied on in the case of copyright.   Unless you're wealthy and well-known, it may not be worth it to try to pursue a perceived infringement, because it's almost impossible to predict which way the case will go.   Even copyright lawyers will admit that.


----------



## RTDragon (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



FireFeathers said:


> Ahhhh this take me back. I once wrote a massive "fuck off" news article on DA about this one time about 4 years back- I can't for the life of me find it now, but basically it was mostly what you put here, along with 'No one cares and stop being an uptight bitch about your wolf with wing species"  Made a lot of people mad, turned into this big debacle, got hounded by popular artists on the site who thought I was targeting them, you name it.



Is it this journal by any chance? http://fav.me/d3jj3ge Found it and having a good read. I see you handled it maturely.


----------



## Taralack (Apr 29, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Lauralien said:


> That said, because of the very subjective nature of what we feel "infringement" is, case law/precedent cannot be relied on in the case of copyright.   Unless you're wealthy and well-known, it may not be worth it to try to pursue a perceived infringement, because it's almost impossible to predict which way the case will go.   Even copyright lawyers will admit that.



That said, I'm sure we all remember Allan, and how incredibly idiotic a situation like that can get within an insular fandom like this one.


----------



## Lauralien (Apr 30, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Toraneko said:


> That said, I'm sure we all remember Allan, and how incredibly idiotic a situation like that can get within an insular fandom like this one.



That sort of situation is exactly what makes this character copyright issue so difficult.   Some people can throw a temper tantrum and win when they shouldn't, and other people can appear to have a pretty solid case but some judge having a bad day decides  "no, you get nothing."

In Allan's case, by law, the hosting center had to investigate the DMCA report's issues...even if they were false.   Since Allan was harassing the hell out of the host and FA, it was easier to just give him what he wanted ("every image of him taken off the site") so he had no more grounds to complain, resulting in blissful, undramatic silence.




Dragoneer said:


> I wanted to fight this, and started to, but honestly? It wasn't worth the time and effort. The fact Allan's playing around with the DMCA, filing false reports... oi. He claimed other people's artwork as his own copyright. The DMCAs were filed under penalty of perjury, which is the eqv. of "lying under oath" in a court of law. It's like somebody gave him a grenade, Allan pulled the pin, then threw the pin at us.
> 
> If FA or the host were litigious (and damages could be proven) we'd have an open and shut court case against Allan for time, effort and bodily injury to the epic facepalming that went on behind the scenes. But I'm not litigious, and Allan's not worth investing the time or effort into. That said, the host? Who knows.


----------



## Taralack (Apr 30, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Lauralien said:


> Since Allan was harassing the hell out of the host and FA, it was easier to just give him what he wanted ("every image of him taken off the site") so he had no more grounds to complain, resulting in blissful, undramatic silence



I think eventually they ended up hunting down all images of "wolf with headphones and bandanna" and removing them too.


----------



## FireFeathers (May 1, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



RTDragon said:


> Is it this journal by any chance? http://fav.me/d3jj3ge Found it and having a good read. I see you handled it maturely.



Lmao, that's the one.  I did my best, given the original post stirred up a mighty shitstorm.


----------



## Zuranis (May 1, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

Thanks for clearing this up, I was really confused about this. I saw  some artwork similar to stuff I've been working on a while back and I  was torn as to whether or not I should look into copyright or whatever  further, what with me being a noob to the fandom and all.



Toraneko said:


> That  said, I'm sure we all remember Allan, and how incredibly idiotic a  situation like that can get within an insular fandom like this  one.


Okay  I shit you not I checked the new uploads to DeviantArt's Anthro section  before hitting the post button and I found his account. I saw a wolf  that looked well drawn and then I saw the uploader (Allan). Man, that's  actually quite scary considering how often DeviantArt gets uploads and  new stuff gets thrown off the front page/recent submissions.


----------



## Solyka (Oct 27, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

How does DA and FA remove images if it's technically legal and okay to do?
Sure it's not nice but DA and FA have no real grounds to remove images, right?


----------



## Asper (Nov 24, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Solyka said:


> How does DA and FA remove images if it's technically legal and okay to do?
> Sure it's not nice but DA and FA have no real grounds to remove images, right?




They do if their TOS say they can. Same with any other website that allows media upload. Obviously it's against the TOS, or else accoutns wouldn't be suspended and images wouldn't be taken down. Might I refer y'all to the AUP, General Rules, What we don't permit:*. *

I think what we really need to consider here is "community established rules", rather than law. What the law says is all well and good, but we're more than a fandom-we're a community. We created certain expectations and rules among ourselves and, regardless of what the law says, those rules are widely expected to be followed by everyone. One of those expectations/rules, as I very quickly learned, is that you dont take someone's art, trace it or copy it, and then repost it as your own-whether you color it differently or not. Another is that when someone creates a character, a fursona, or a species, you dont make your own copies and claim them as your own original work.

The law says you can do something, but the community you're in says you cant. Is it fair? Well, not always, but it doesn't matter. If you dont like what the majority says you have a couple of options-try to change it, or accept it and follow it. If you chose to completely disregard it, like many people have, you'll simply have to weather the backlash from that community and the eventual consequences of a violation of the TOS, or AUP in the case of FA.


----------



## Willow (Nov 24, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Asper said:


> I think what we really need to consider here is "community established rules", rather than law. What the law says is all well and good, but we're more than a fandom-we're a community. We created certain expectations and rules among ourselves and, regardless of what the law says, those rules are widely expected to be followed by everyone. One of those expectations/rules, as I very quickly learned, is that you dont take someone's art, trace it or copy it, and then repost it as your own-whether you color it differently or not.


This isn't unique to this fandom though. Don't take what isn't yours or what you don't have permission to use.


----------



## Asper (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



Willow said:


> This isn't unique to this fandom though. Don't take what isn't yours or what you don't have permission to use.





Very true. In my humble opinion, it's very, very sad that people have to make a thread like this. Ok, sure..maybe it isn't illegal to take someone's fursona that they put so much thought and hard work into, then trace it and recolor it, or copy it outright. But ya know what? Who gives a damn if it's legal? That doesn't make it right or acceptable unless prior consent is given. It's a matter of the community's viewpoint and how they establish their expectations of other in the community. In this one, copying and tracing art is simply not allowed-to hell with what some outside entity says. 

My own fursona is a red and white wolf. There's other red and white wolves out there, but certain physical things, such as markings and shades, make them different from each other. Although I couldn't take legal action if someone copied my fursona's colors and markings, I would certainly be very upset and call them a thief, then go through the process of having the images removed.


----------



## Schwimmwagen (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

I think that some ideas are hard to protect 100%.

It's very possible to "rip off" something like sergals without intending to or having any knowledge of sergals in the first place. It's essentially a fuzzy dragon. Any kind of fuzzy dragon you make will absolutely no doubt have some similarity to the sergal, at least in the eyes of some people. It could be large and four-legged, but still come across as sergal-ish and make people cry.

IMO you also can't protect the idea of a skinny messy/dark-haired boy wearing glasses and a black cloak. Despite all the boys out there with a similar description, he's his own character and you can't cry about those super basic similarities. Now if you gave him a scar shaped like a lightning bolt on his forehead, _now _there can be trouble.


----------



## CaptainCool (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

And this is why I laugh about "adoptables"^^ There is literally _nothing_ to stop me from using those characters in my own work as long as I don't trace or copy the original picture. Ok, one thing that does stop me from doing that is the fact that I can't draw... But you get my point.
So If I was a massive douche and could actually draw I could just take these characters without paying a single penny.

But here is the thing that baffles me even more:
While furries love their "original characters" and go apeshit when you "steal their designs" they have no problem *at all* with using commercial characters that actually _are_ legally protected by their owners and making money with them! And I am not talking about fanart here. I am mainly referring to these "your character here" auctions.
"HAVE YOUR CHARACTER GET BUTTFUCKED BY BOWSER! BID BELOW!"
Commissions are a different story because those are essentially paid fanart.

Sure, these characters are owned by faceless corporations but honestly? Valuing the "copyright" of your own characters just to turn around and kick real copyright laws in the balls does seem a bit hypocritical to me.


----------



## MattsyKuntheKitsune (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



CaptainCool said:


> But here is the thing that baffles me even more:
> While furries love their "original characters" and go apeshit when you "steal their designs" they have no problem *at all* with using commercial characters that actually _are_ legally protected by their owners and making money with them! And I am not talking about fanart here. I am mainly referring to these "your character here" auctions.
> "HAVE YOUR CHARACTER GET BUTTFUCKED BY BOWSER! BID BELOW!"
> Commissions are a different story because those are essentially paid fanart.
> ...



This is why I never do copywritten characters as YCH auctions or commissions. I'd hate it someone took my fursona and used her like that, and I know large companies hate it too (hence lawsuits and Cease & Desist notices). Then again, that's an entire gray area, along with selling fanart at conventions... but we won't get into that XD


----------



## Asper (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*



CaptainCool said:


> And this is why I laugh about "adoptables"^^ There is literally _nothing_ to stop me from using those characters in my own work as long as I don't trace or copy the original picture. Ok, one thing that does stop me from doing that is the fact that I can't draw... But you get my point.
> So If I was a massive douche and could actually draw I could just take these characters without paying a single penny.
> 
> But here is the thing that baffles me even more:
> ...



If you wanted to be a massive douche? Well, where does that mindset come from? Of course you can take an adoptable and copy it in your own art. You have that ability just like you have the ability to punch a baby or kick a dog. But why would you?

People wanna bring legality into everything as if it's always the perfect argument. I certainly mean no disrespect to Lakota, but her points carry very little weight in a community that has established the expectation that character and species copying/tracing wont be performed, because it's unacceptable.

As far as using copyrighted characters in YCH... I haven't seen it. That doesn't mean it never happen, of course. But it isn't something I've seen or participated in. Plus, is it really a valid argument to bring copyrighted characters into a thread about how characters cant be copyrighted?


----------



## sixfoot (Nov 25, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

Good thread and OP 

I'm of two minds about this kind of stuff. On the one hand yes it its ridiculously babyish to whine about someone copying your green wolf or 'my style' or whatever, but on the other hand I think genuinely new or interesting designs really ought to be better protected by copyright than they currently are.

If somehow I did come up with an incredibly awesome creature that wasnt just a new flavour of dragon, there's literally nothing in place at the moment to prevent other people taking it and making money off it, even if the copy is 100% exact. I find that kind of weird too. 

Basically use common sense, treat others as you would be treated etc.. In the fandom sure no one's going to sue you, but it'll come back to bite you on the ass if you rip something off that is genuinely unique. I reckon your average person has a good spidey sense for when something is an inexcusable rip-off and when its just kinda similar. The sense just gets to be overactive when you're a teenager and your precious darling is being 'copied' by someone else who also enjoys wings on their wolves.


----------



## rjbartrop (Nov 26, 2013)

*Re: Clearing Confusion About "Closed Species" And "I Copyright This Species/Character*

What never ceases to amuse me are the ones who go ballistic when somebody copies their fanart.   
"You copied the character that I copied without asking!  That's just wrong!"

On the subject of adoptables,  there are some really great character designers in furdom who make some very appealing and distinctive characters.    To the ones who just slap a different colour on a generic Disney critter and try to pass it off as a unique character, all I can say is, shame on you.


----------

