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  1. #1
    Banned MkLXIV's Avatar
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    Closed Species? Please Read This

    While I'm not quite sure when the whole "closed species" trend started or who started it (even better question- "or why"), I did a little research on if it's actually possible to copyright a fictional species.

    The short annswer? No.

    But why? Keep reading.

    Though many people believe that copyright protects a creative work no matter what the form- this is not the case; if it was, there would be no patents or trademarks. In fact, there are several categories of creative works which copyright does not protect. One such category is ideas. Since a closed species does not take a specific form, it can not be copyrighted. These closed species are only a set of common attributes as ideas which make it identifiable- that means it could be covered under a trademark as it would identify the artist or their services, but not a copyright as it is only an idea and intangible on its own and members of the species have their own unique attributes (thus making a derivative work) which would technically differentiate them from the original definition of the species. Also, a copyright is only applicible to tangible works, making it even more impossible to gain a copyright over a fictional species as the fundamental components of the species are intangible and ideas- neither can be copyrighted.

    Please note I am not a lawyer and just a fur with some knowledge about this stuff, but I did choose reliable sources of information.

    Sources: LegalZoom and the United States Patent and Trademark Office

  2. #2
    Well, I suppose the best bet would be to respect the creator's wishes not to use their species, and to create your own. As an artist, I am fairly confident that I myself can make up a species of my own and feel more happy with that (as I can change what I want when I want), than taking someone else's design.

    Of course, this also calls into question the financial aspect. You, nor I, can take the creatures from James Cameron's Avatar and hope to make a profit off of them without facing legal problems. You can draw them or draw others in that species appearance, but you cannot legally write a story and sell it with those exact same designs.

    Closed species to me are the same as creature design. Obviously if you draw a mouse and put a star marking on its ear and say its a closed species, you can't, as the mouse isn't a made up species that someone owns. It's the design that is owned. This is probably why you don't see all the companies taking the Creature from 'Creature from the Black Lagoon' and making exact replicas for profit - only the original copyright holder can do that (in this case the company that owns the copyright, as the artist has sold it to them already).

    A copyright protects your execution of said idea: the drawing, writing, video, etc. So once you put that down on paper, you automatically own that image. Obviously getting an official copyright helps immensely, but that's how it is.


    Obviously, anything can be stolen, anyone can make a copycat version, and people can be downright assholes in observing the original artists wishes. So unless anyone plans on stealing, copycatting or making their own character of said closed species, I wouldn't worry about other people making a closed species.
    Last edited by insanejoker; 03-13-2014 at 10:31 PM. Reason: Minor clarification

  3. #3
    Banned MkLXIV's Avatar
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    While you bring up some good points, what I'm trying to get at is this: the actual design is slightly different for each of the species' mambers- unless you make a barebones version and copyright that, you can't own it by copyright becuase the mere design of a fictional species as it is intangible- copyright only protects tangible works. But trademarks, however, can apply to intangible things like company slogans, therefore possible to apply to a species' traits as a whole as long as they are not common.

  4. #4
    Senior athdaraxen's Avatar
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    Whenever I've seen a closed species most folks respect the creator enough to not copycat them. It may not be legally binding but most folks are ok with just following the rules on them. Usually.

  5. #5
    Quote Originally Posted by MkLXIV View Post
    While you bring up some good points, what I'm trying to get at is this: the actual design is slightly different for each of the species' mambers- unless you make a barebones version and copyright that, you can't own it by copyright becuase the mere design of a fictional species as it is intangible- copyright only protects tangible works. But trademarks, however, can apply to intangible things like company slogans, therefore possible to apply to a species' traits as a whole as long as they are not common.
    I suppose if you really want people to be horrible to artists, then you may tell other people it's ok legally to take another character artist's design. A closed species from what I've seen have specific visual characteristics for that species. Females might have large eyes or small eyes, small wings, longer limbs but short overall, and male might have large wings, three eyes, long limbs but bulkier. It's something that makes them stand out from another species. Variations of that same species is NOT another species. That makes no sense. While yes, you can use SIMILAR characteristics for your own characters (height, wings, etc), saying it's 'so and so's species design that I am using for a character I made up' without prior permission is sketchy at most, and that person will not ever own the species rights, so if they attempt to do anything like copyrighting etc. I can't imagine that going over well with the original artist. In short: Just /don't/ do it. It's going to cause headaches for everyone. Just because you might find a loophole to do something, I highly recommend against it.

    How to Train Your Dragon: Lots of dragon designs. Each one, both in that concept stage and final design, are /all/ copyrighted and or trademarked. You can draw fan art of them, but that's the extent. You can't profit on a corporate level or production level. The species is Dragon. Lots of variations. All belonging to Dreamworks.

    I'm not sure if you're trying to warn artists (if you are, surely you have tips to further protect someone's creation after looking through all of that information) or if you're trying to tell people you can do what you want with someone else's creation (I doubt this was your intent). For artists, I would contact a copyright attorney / lawyer for clarification on what someone can do and asking about protecting your designs and creations more thoroughly. Professionals recommend staying away from making something based off another person's design, however, so other artists should keep that in mind.

    In all honesty, if you're an artist, act like one and show your creativity. Don't be a jerk and steal / copy someone else's idea or design.

  6. #6
    Banned MkLXIV's Avatar
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    Sheesh. I'm just trying to make a warning here that if you sue someone over taking a closed species, you might not have that much ground to stand on (if any). While I don't agree with (nor support) the concept of a closed species, I at least respect the artists' decisions to the extent of not making one myself or encouraging othes to do so.

    If you came here to start a fight, I'm going to have to ask you to leave this thread. I'm just trying to provide a bit of information I've found as a warning to help others.

  7. #7
    Quote Originally Posted by insanejoker View Post
    How to Train Your Dragon: Lots of dragon designs. Each one, both in that concept stage and final design, are /all/ copyrighted and or trademarked. You can draw fan art of them, but that's the extent. You can't profit on a corporate level or production level. The species is Dragon. Lots of variations. All belonging to Dreamworks.
    This, I've been thinking for awhile about how many artists are making fan art of their favourite shows and selling it as buttons, prints, on t-shirts,etc. Isn't that stealing? I mean the fan art work / is your work / , but the content isn't. If I draw my little pony, pokemon or some other famous characters out there, aren't I stealing their profit? Do I have legal permission to sell anything with these characters?

  8. #8
    IP law in general is a very fuzzy thing to begin with and that you are not a lawyer of any sort means you really shouldn't be dispensing legal advice as fact or at least you shouldn't be surprised when people try to have a conversation or debate with you over it.

    That said, my understanding of IP law is that If it has a defining characteristic and has been used in art/stories/music/poetry/whatever it probably has some form of copyright protection, whether it is directly or indirectly. So a species can be closed, and a legal battle over it being copied and profited off of can potentially be won (or lost depending on the judge really), so long as that species likeness is used in some form of media.

    Now whether that protection is afforded by copyright, or some other part of IP law I don't know. If I was a lawyer IP law is probably not something I would want to be involved in because whether you can win or lose a case is basically a crap shoot dependent on the judge and their interpretation more than other sorts of law.
    Fish heads! Fish heads! Rolly polly fish heads! Fish heads! Fish heads! Eat them up! Yum!

  9. #9
    Banned MkLXIV's Avatar
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    Ok. I'm done trying to help wth this. No one seems to get the idea- am I supposed to give direct links now? Anyways, I am locking this thread in any way I can- trying to give information about a subject with so many flaws and misconceptions doesn't seem to work becuase it looks like other furs either don't want to change or at least be informed... :T

  10. #10
    Premium User QT Melon's Avatar


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    If you have a tangible work behind it yes you can copyright a species. It has to be constantly established however to help your case.

    The legal action you can take however varies in the US especially between registered and non registered copyright.

    I can certainly provide you with examples that was done with lawyers that actually work in copyright law.

 

 

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