Use of copyright characters


#1

Is it a big deal if I create a copyrighted character for a personal project, lets say, like a digital painting, without asking it’s owner.


#2

Hi Bennel,
In the moment where this work becomes publically available: Yes. Of course. That’s what copyright is about.
Kind regards
Tiles


#3

People do a lot of personal artwork of copyrighted content, but technically you aren’t allowed to share it. However, I haven’t heard of any issues with people doing that, it becomes an issue if you try to sell your artwork.


#4

That’s unfortunately not true. It remains a copyright issue in the moment where you make the artwork public. Some car manufracturers doesn’t tolerate not licensed image material for example. No matter if professional or not. I know of hobbyists who had to trash their images because of the license holders were after them then.


#5

The use of recognizable copyrighted material in art is a very grey area. Technically, ‘fair use’ rules allow for the use of copyrighted material in art as long as the derivative art is sufficiently transformative. However, that definition is highly subjective. The answer to your question thus lies in just how transformative your artwork is going to be and how just defensible you think your position will be should you unfortunately end up having to defend it in court. The probability of this happening (as has been pointed out) increases if you make your artwork public and even more so if you generate revenues from your artwork. For an example see Hummvee sues Activision. Thing is, if the copyright holder is a corporation they can afford to take you to court (a time consuming and costly process) no mater how valid your claim - so the safest option is not to use copyrighted material at all. But of course, some types of artistic vision draw heavily from interpretation of what might be copyrighted material. The College Art Association (US) has published useful guidelines such as this one. I would recommend starting here if you want to understand more.


#6

What if the character I use has the likeness of a copyrighted character but with a different name?


#7

The borders after which point modified artwork becomes your artwork is very fluent. And it always is about the single case. The modification has to be strong enough to count as own art.

Let’s go with an example. A Super Mario character with red shirt, blue trousers and a mustache will remain a Super Mario character. You can be sued, even when you use another name. Make the shirt yellow, the trouser black and remove the mustache, and you might be good to go. But call it Super Mario, and you can be sued again.


#8

Why do you choose a likeness to a copyrighted character?
If the answer is “because it can be recognized as that character” you are in violation of the copyright. That is what it is all about.
People use copyrighted chacracters, or symbols etc., because they want to gain from the intellectual property of the original creator, which is exactly what the copyright tries to prevent.


#9

Yep. Make your own art. That’s the best thing :slight_smile:


#10

A vast a gray area.
To simplify it. If any of these big IP owners decide to make a big deal out of you -for any reason at all -can you really afford to fight it? Because it is expensive to fight them.
Even if you think they are just being bullies and wrong. Do you have the $ to win?
Most of the time this is the breaking point because the IP owners usually have a lot more money than you do. Look at the cases
where folks like Disney were accused of stealing ideas from ‘little guys’. They have the money to never really ‘lose’.

If you are really wanting to make say ‘fan art’-but want to use it as a portfolio piece -because you are proud of the result- simply just don’t put it on the internet
and show it at interviews only via a personal storage device.


#11

That’s exactly what I said, while it’s technically still a copyright issue, it’s extremely rare for anyone to go after someone who made some personal artwork, I’ve only seen cases where they go after someone when they try to sell it, there’s plenty of people making 3D models of cars and characters and stuff, it’s extremely common even though it’s technically something that the copyright owners could fight.


#12

Just to remind …[BMW sued turbosquid

It’s not rare. And it isn’t commercial cases neither. I personally know a person who had to remove his car image from the internet.](https://www.solidsmack.com/cad-design-news/bmw-group-sues-turbosquid-for-selling-3d-models-of-their-car-designs/)


#13

Isnt it allowed under fair-use as fanwork?


#14

Fanwork is tolerated, but not legal.


#15

That’s the case of people trying to sell it, for example if you made artwork of a Disney property and tried to sell it there’s probably a 50% chance they’d go after you, but if you’re making artwork without selling it it’s extremely unlikely—this isn’t to say that you can use a copyright for anything as long as it’s free but rather that artwork rarely has the issue, if you look at any website where people post work that they’ve done like Artstation or here then there’s a massive amount of copyrighted content, including things like cars. If you’re doing it for your portfolio the chances of there being an issue is extremely low.


#16

There’s a massive amount of copyrighted content at DeviantArt too.


#17

Under US copyright that’s not entirely the case. Copyright law is essentially Civil law and doesn’t prescribe specific legality or illegality to things like fanwork. What it does is prescribe a standard for the way that one party can establish copyright and protections over its own works, in the manner or extent it decides is best for itself within the standard.

The copyright owner, not a judicial party, is responsible for policing any copyright established or presumed through Civil court. What is “legal” is defined by what the copyright owner releases or reserves. Things such as fair-use are restrictions on the copyright owner that prohibit excessive or frivolous copyright enforcement for things deemed reasonable access, typically guaranteeing access for the press and education, but it is not necessarily blanket permissions for the user.

It is true that fanwork is tolerated. It is basically an “at risk” activity which is quite proliferous and even taxed. Anyone producing and selling fanwork at a comicon in a large city is typically taxed on all their reported proceeds. The industry knows and selectively tolerates it to a point, but this tolerance is no guarantee that you won’t be sued for infringement. But at the same it is an insane level of free promotion received by copyright owners and is a hotbed for talent scouting.

The bottom line is that creating fanwork of copyrighted material contains risk but any legal responsibilities for policing the copyright are the responsibility of the copyright owner not the government.

Joey