Advice on open species?

[spartanwerewolf.livejournal.com]

I've been wondering, if someone creates an open species and offers it up to whoever wants to create a character of that species, do they have the right to dictate who can create a fursuit/sculpture/plushie of the character you've created?

For example, if someone creates an open species, and I made a character of that species, does the species creator have the right to say “You can only have a suit/sculpture/plushie made by this certain maker”?

What if the maker they’ve selected is someone I don’t want to commission, for whatever reason? Can I then get another maker to create my suit/sculpture/plushie, or do I need permission of the person who created the species to begin with?

Basically, what are the "rules" of an open species? Does the creator retain any sort of control over the outcome of people using said species or do they just have to accept that people are going to do what they wish with their characters?

My understanding is that the species creator retains the copyright of the species itself, but when it comes to individual characters, they don’t have much say. The owner of the *character* is not obliged to adhere to the rules the species creator laid out, at least when it comes to commissioning physical items. If I’m spending the money on a commission, I don't want to spend it on a product I'll ultimately be unhappy with, simply because whomever created the species decided I had to use a certain maker.

Help me,A_B Wan Kenobi, you're my only hope!

Comments

[shukivengeance.livejournal.com]

They have absolutely no right to dictate how your character is depicted.

To the best of my knowledge there's not really any way to 'copyright' a species since the purpose of copyright law is not to protect ideas, but the expression of those ideas. So say they draw a picture of a fictional species they invented, they have the copyright of that image, but cannot claim ownership of fluffy ears, heart-shaped markings or tails of X length.

[roocodendron.livejournal.com]

This is what I thought as well

But I've seen some people who have an open species say that they can take your character any time they want and do whatever they want with it because it's "their species." Or if a roleplay ends up being made into a story/book/whatever and the people involved have a falling out, the species creator can just take their character, or something like that. That's not going to fly either, right?

[fatkraken.livejournal.com]

That certainly sounds like they're making claims that are not backed up by law.

[elmenora.livejournal.com]

Ideas and designs can't be copyrigted, only specific depictions of the design. Same goes for characters, actually. Unless you go through the hassle and expense of a trademark, your character is not considered your property at all.

So legally speaking you're free to do whatever you want with whatever species you want.... and with almost any character in the fandom too, since most people don't bother to trademark their 'sonas. That doesn't mean you SHOULD do something if the creator asks you not to. It may be legal but it's not very nice.

[elmenora.livejournal.com]

Ah, missed a few lines in the OP.

I'd say it's reasonable to commission art of a character you created, regardless of what the "owner" of the species says. That's your character. You designed it. You drew it (I assume). You ought to be able to do whatever you want to with it.

[thaily.livejournal.com]

I have to say, if they told a person "You can create a character of my species under the rules, k?" and that person "Ok!" and creates a character of that species, then they have an agreement. All law and copyright aside.

Safest way to avoid all this hubbub? Make your own damn species!
It's not that hard.

[ocelotish]

Just because a contract says something doesn't mean it will necessarily be able to be upheld. Rights of first sale would be a classic example (though not an issue here).

[fenris-lorsrai.livejournal.com]

I believe the species would be TRADEMARKED rather than copyright, which has an entirely different set of laws applied. and you actually have to file for trademark, which virtually none of the species created by furry fandom have.

[shukivengeance.livejournal.com]

You are correct, though I was under the impression that only specific characters could be trademarked, not a species.

[copper-curls.livejournal.com]

You are correct, though I was under the impression that only specific characters could be trademarked, not a species.

I'm not entirely sure about that; I believe Lucasfilms has trademarked Twi'leks, for example. However, a key aspect of trademark is that it's for commerce, because the purpose of trademark is to prevent confusion of brand identity in the marketplace. Lucasfilms trademarking Twi'leks makes sense, since they have merchandising deals for games, action figures, etc.; likewise for Disney to trademark Mickey, Donald, Goofy and so on. As I understand it - and this is very much a laywoman's understanding, so get knowledgeable advice - if there is no intent to do business, then there can't be any trademark.

[shukivengeance.livejournal.com]

I know how trademarking works. My point is they can't stop people making characters.

[copper-curls.livejournal.com]

I apologize; I didn't mean to lecture. I was trying to address your point about whether or not a species can be trademarked as opposed to a single character. And I did manage to completely miss making the point you made, about people being able to make characters, regardless.

I can, if you wish, edit out the lecture part?

[ashleyvsdestiny.livejournal.com]

It doesn't necessarily have to be filed however, when you see 'TM' it means trademark, but only (R) indicates a registered trademark. You can claim trademark without registering it, of course you'll still be expected to back it up with proof that you do TRADE by that MARK should you take someone to court. If your only claim to a trademark is some art or roleplay for yourself on FA, the court likely wouldn't even bother to hear the case and dismiss it outright.

[kaputotter.livejournal.com]

Oh how I wish, how I wish I wish I wish that education about copyright vs. trademark were more well known.

Not quite, but . . .

[greenreaper.livejournal.com]

Yeah, that's not gonna stand up in court on copyright grounds. Even a trademark would only protect the brand; so you could create a blue-skinned alien, you just couldn't call it a Smurf. (You'd run a risk creating a specific character, such as Applejack, although that hasn't stopped people before.)

Now, it might be possible to create a design patent (https://en.wikipedia.org/wiki/Design_patent) to cover the ornamental aspects of a particular style of fursuit, if it contained novel features. They don't cost too much ($250 or maybe $125 in certain circumstances, plus any legal fees), but there are interesting unresolved questions with costumes as to whether the ornaments can be separated from its function as clothing.

I have not heard of anyone doing this yet in the fandom. It might make more sense for someone like Bad Dragon.

[korsetkoat.livejournal.com]

My fursona is someone else's open species, and I'm lucky enough that they're not giving me any problems with that sort of thing (rather, encouraging it even!)

But on the off chance you get someone like you described...echoing what's been said. Might be some hurt feelings on their side, but not much they can do about it.

[korsetkoat.livejournal.com]

Makes me think, though. Is there really any such thing as a "closed" species if they don't have a trademark or patent or whatever to protect and just say "these are mine don't make one"? Is there really anything stopping someone from making one aside from pissing a few people off?

[crimson-flygon.livejournal.com]

The whole "mine don't steal" thing regarding any character/species design is complete BS in regards to US law. The artwork is of course under their copyright and cannot be used by anyone else, but someone who invented a species can't stop someone from creating their own beyond their words. If they trademarked it, it would be a bit different... but another person could still make something of the same concept with a different name and it would be fine.

Which is why the angry claims over characters and copying are so redundant.

[korsetkoat.livejournal.com]

I thought as much.

[dilario.livejournal.com]

it seems to me that the rules depend completely on the creator of the species. If they only want people to get suits from them or a certain other, there's not much wriggle room there. I doubt any kind of legal action would be taken, though, since species are only so original (I created an open species some time ago and there's at least 3 other extremely similar concepts around that I know of).

[fatkraken.livejournal.com]

There's not much wriggle room if you are respecting their wishes, but you are not legally obliged to do so. Generally it's better to be polite, but if they had a list of permissible artists and you chose to go outside that there'd be very little they could do.

[dilario.livejournal.com]

I do agree. If you don't feel like playing by the rules there's really nothing anybody could do about it in this case.

[spartanwerewolf.livejournal.com]

My whole thing is, if I'm spending a few grand on a fursuit, I want it to be made by a maker I've chosen, based on my own reasons. I don't want to be shoehorned into giving that much cash to a maker that I haven't chosen, only to wind up with a product I know I will not be satisfied with. IMO, the politeness needs to go both ways, you know?

[excessdenied0.livejournal.com]

I have an open species, and all I've asked for is that people credit/link back to me when they use the concept, and that they not make any profit off of the original images. I can't stop anyone from selling commissions of characters based on that concept, so I can't say that it is only for non-profit use, since the artist selling the commission is profiting from my idea in a sense. Though I do ask that people talk to me before using the concept in books/media intended for public sale or display, but it's an open species. That is just a request.

The thing is, while the species/concept is my creative property, the characters/derivatives definitely are not. The rules surrounding them are all up to whoever created the character itself.
I say rules, not laws, because I don't think there are a whole lot of actual laws surrounding work that isn't legally copy-written or trademarked.

Correct me if I'm wrong, but I think the only thing the species creator has any real right to, is that no one else claim credit for the original design/concept/species.

This all seems pretty specific though, is it a general question, or are you speaking about a particular case with a specific artist?

[copper-curls.livejournal.com]

Correct me if I'm wrong, but I think the only thing the species creator has any real right to, is that no one else claim credit for the original design/concept/species.

I believe you're correct. As I understand copyright law, an idea cannot be copyrighted; only the expression of that idea in a tangible or perceptible form. So you as the creator of the species couldn't make use of the law to protect your ownership of the idea; the good news is that no-one else could usurp your claim, either. Probably the best protection is if your species is popular, it's actually in your best interest to let as many other people as want to use it, requesting them to acknowledge you as the species creator; that way, if someone down the road did try to say "Oh hey, I created this species", there would be a number of people who could back up your "Excuse me? I don't think so." However, as dilario noted above, someone might independently come up with quite a similar species concept. Probability theory may say a coincidence is unlikely, but by the same token, they do happen sometimes. :-)

[spartanwerewolf.livejournal.com]

I'm familiar with your species (ohai Zeek) c: Asking that people credit and providing linkbacks for digital commission is something wholly different than shoehorning someone into using a maker they don't want for a physical item, especially an expensive one, like a fursuit, or large sculpture or something..

You've caught me out, Excess. It's sort of generally specific, in that I've seen a couple of species creators say "You can only get something (physical) made by these specific makers", usually a friend of theirs. Something about that sits wrong with me, so I thought I'd ask a_b for advice.

[excessdenied0.livejournal.com]

I don't think that anyone has any right to tell you where to spend your money. I can understand suggesting artists that are capable of representing the species accurately and attractively, but stating that people are limited to those artists? That's inappropriate, and has the feel of a power trip. I would just discreetly do it anyway, try not to cause any drama, and if they approach you about it politely explain that you have the right to commission works of your character from the artist of your choosing regardless of what species it is. If things get nasty, be firm but polite, and explain that while you didn't mean to offend they can't legally enforce their request. You'll be in the right so I doubt the argument would last long, and all that would really come of it is that you may have lost favor with that particular artist.

[candychic125.livejournal.com]

I think the best you can do is have a creative commons license for your species. http://creativecommons.org/licenses/

I would make a concept art sheet with main characteristics and explanations, then select one of the more restrictive licenses that say you allow derivative works, as long as they carry the same license. One of the CC licenses says you will allow derivatives of the work as long as its non commercial, which would allow for you to say not commission someone else for a representation of the species you drew, even if they had different colors.

You could request that derivative works appear a certain way, but if you only want that species portrayed by certain artists, you'd have to individually license each artist to use that representation of the species. Unless someone expressly enters into a contract with you about using your species, there's not much stopping them from doing something outside the scope of your license.

If you make an open species, I think it would be under public domain, in which case you don't have much say over how it gets represented.

Even with the creative commons license, any copyright would be hard to hold up simply due to the location of the offenders and the scope of the damages. Meaning, if someone in Portugal commissioned a fursuit of your species against your will, how/where are you going to bring them to court and how much would you collect? Is it worth it?

And since most animals and combinations thereof are in the public domain simply because only the creator of the universe can claim to have made them first, nothing's to stop someone else who just happened to think of something similar to your species from doing what they want with it. Like someone else said, as long as they don't call it the same thing, it can't really be concluded that they got the idea from you.

(frozen)

[shadowconner.livejournal.com]

I had someone bitch, moan, and decline a commission because i took the ears of a Crux

(frozen)

[shukivengeance.livejournal.com]

While A_B is a place to discuss situations and to an extent air grievances, your tone is a tad too hostile to be considered appropriate so I am freezing this. Additionally, most artists have a ToS that states they can decline a commission for any reason.

[claviarm.livejournal.com]

As many have said, legally you're in the clear to do pretty much anything. But I do hope that you would consider more than just what one can get away with in court.

You appreciate this person's creation enough to want to use it yourself. Doesn't this warrant a bit of respect for their wishes? Or does your own desire, or opinion that their wishes are unreasonable, entitle you to disregard them? Those are the questions you need to answer.

(And those questions could spawn a gigantic argument, I'm sure. For my own part, at least, I leave it for the OP to decide and won't be arguing the issue further.)

[keaalu.livejournal.com]

Along with this, I suppose the other thing would be, what about the person who will be making the suit? As you're putting them in a potentially difficult situation, too, particularly if the designer of the species is prone to drama. (Although I guess they could refuse to take the job if they were concerned.) An in, if they agree to go ahead with the commission, either they have to agree with you to go against the artist's wishes, or else you don't tell them and just hope that they're okay with it if they find out later on.

[radiocatastrophe (from livejournal.com)]

I've always wondered why people think they're "original" species is actually theres. I'm positive that it's been thought up before and used before they even considered the idea. It pains me to see when someone says you're not allowed to have a character of the species unless you ask for permission first, and even if they list "I usually say yes" it's still give me a head ache knowing they're in this sort of mindset.

Though on a more on-topic standpoint you don't have to abide by the rules the "creator" has set when it's your character you're commissioning from others, even if they tell you only to commission from certain people they have nothing to back them up if you don't.

Like others have said it's more of being polite than law binding, you don't have to let them know nor do you have to listen to them.