Copyright

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Copyright

Postby Tensor » Tue Sep 06, 2011 7:39 pm

Given the latest parade of "new" characters, I'm wondering if Rob has permission to use all these characters and likenesses from other shows, comics, cartoons, etc. It'd be a real stretch to say they are being used in parody, because a) they look and act nearly identical to their counterparts and b) are part of a dramatic plot-based storyline.

Is this kosher? Am I missing some obscure loophole in the concept of copyright?
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Re: Copyright

Postby drachefly » Tue Sep 06, 2011 9:54 pm

What? This is so far within fair use it's not even funny.
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Re: Copyright

Postby MarbitChow » Tue Sep 06, 2011 10:14 pm

I'm not a lawyer, and none of this post should be considered legal advice.

Images are copyrightable, certainly, but Rob & Xin aren't using others actual images - they created their own artwork. The character has to be easily recognizable by the public at large.

The weird sisters may not fall into that category - they're obscure enough that a jury may not recognize them. The clothes are similar to outfits the sisters have been depicted as wearing, but if the outfits are not iconic (if they're not always wearing them), then it could be argued that these just happen to be three similarly-hair-colored women who were dressing the part. If the Sisters' names are not used, the argument becomes more defensible. Note that the hair styles are not the same: they lack the distinctive part down the center. They're also drawn in the standard 'cutesy' Erfworld manner, with no pupils. So, the characters are evocative, but not replicas.

Interesting reading on character copyright regarding merchandising is here:
http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/wo_inf_108.pdf

This article goes into fan fiction at some depth:
http://www.tushnet.com/law/fanficarticle.html

More details here:
http://www.ivanhoffman.com/characters.html
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Re: Copyright

Postby fjolnir » Wed Sep 07, 2011 1:04 am

Another thing is that the wyrd sisters are well represented in fiction that has long since pushed into the public domain. While the characters might resemble ones that are from a specific interpretation, the characters themselves are not copyrighted.
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Re: Copyright

Postby Tensor » Wed Sep 07, 2011 8:58 am

drachefly wrote:What? This is so far within fair use it's not even funny.

Where do you draw this conclusion from?

fjolnir wrote:Another thing is that the wyrd sisters are well represented in fiction that has long since pushed into the public domain. While the characters might resemble ones that are from a specific interpretation, the characters themselves are not copyrighted.

I get that the concept of the "three sisters" are well-represented in literature, and even by name as well. While those may be in the public domain, I'm quite doubtful that Disney would be all that happy about the exact character representation including identical dress, colors and hairstyles that they produced/own being used to make a buck for anyone other than the Mouse House.

We're in a situation where these characters (and in many time, corporate logos), which Rob didn't create, are in a position to be integral to the story, and even moreso to the forums where people tend to work up a real lather with all the "who is that?" discussion. This story results in books, merchandising and (ironically) copyrighted materials which Rob markets for a profit - gross, net or otherwise.

Btw, interesting links Marbitchow.
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Re: Copyright

Postby MarbitChow » Wed Sep 07, 2011 10:04 am

The Weird Sisters are not something that the general public automatically associates with Disney. Stock characters don't enjoy the same protections as the iconic ones, and it can be argued that the Sisters are stock characters. Visually, the hairstyles of the Erfworld versions are different (the Disney sisters have a distinct part down the center), the faces don't match (the eyes don't even have pupils), and you can't just copyright hair color and attire, unless that attire is highly distinctive (like Spiderman's costume, I suspect).

Derivative works also receive protection, which is why artists can sample portions of other songs to create new works - they just have to be careful about how much they copy.

But ultimately, it boils down to whether the copyright holder enforces the copyright. Minor characters in a niche comic with a small run are probably not worth prosecuting over, and the fair use argument is plausible enough that it would be a waste of the company's time.

Note, for example, that Lucas did not sue Star Trek, even though R2-D2 appears distinctly as part of floating debris a certain scene, nor did Spielberg sue Lucas when the E.T.s appeared in Star Wars. Homages are, I suspect, a well-established fair-use case.
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Re: Copyright

Postby Tensor » Wed Sep 07, 2011 10:59 am

MarbitChow wrote:But ultimately, it boils down to whether the copyright holder enforces the copyright

It sure does.

MarbitChow wrote:Note, for example, that Lucas did not sue Star Trek, even though R2-D2 appears distinctly as part of floating debris a certain scene, nor did Spielberg sue Lucas when the E.T.s appeared in Star Wars. Homages are, I suspect, a well-established fair-use case.

Possibly, if it were an exception as opposed to the norm. Also, if that floating wreckage of R2-D2 came forth from the background clutter and suddenly engaged in the plot, I think the conversation with Lucas would have been a bit different.
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Re: Copyright

Postby BLANDCorporatio » Wed Sep 07, 2011 3:51 pm

I am not a lawyer, but some googling on 'homage+"fair use"' provided this story, which can be compared and contrasted to Erfworld's case.

Notice that yes, a fair use defense could be attempted in the linked-to case, but also that the usage, for a line of marketable goods, of a name similar in sound to a more famous brand is the issue. Erfworld's homages are much more transient, and unlikely to even draw attention.

Or, we could also look at Southpark, specifically, their Imaginationland episode. Not all characters in it where Southpark original or public domain (examples of other people's property: Jack Skelington, Freddie Kruger, Aslan, Storm Troopers, Popeye the Sailor, Strawberry Shortcake, some Tron guy, the Good Witch of the South the movie version ...). Either this was the most expensive episode in the history of SP, or their legal team decided that protection for parody*/free use is strong enough to make it unassailable.

*: yeah, Southpark's a parody BUT the Imaginationland episode(s) were not parodying Popeye. Rape by Christmas Critters does not as parody count. And how was Aslan parodied? Or Freddie Kruger?
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Re: Copyright

Postby MarbitChow » Wed Sep 07, 2011 6:09 pm

BLANDCorporatio wrote:Notice that yes, a fair use defense could be attempted in the linked-to case, but also that the usage, for a line of marketable goods, of a name similar in sound to a more famous brand is the issue. Erfworld's homages are much more transient, and unlikely to even draw attention.

Trademark is also MUCH less lenient than Copyright. If you appear to be infringing on a trademark, that's less defensible. In addition, corporations have to show that they are actively enforcing their trademark, whereas copyrights are ultimately intended to expire so that the work enters the public domain. Well, that was the original intent.

In addition, Mike (the Nike rip-off) had based their entire business on the 'homage' - so there was non-trivial profit deriving directly from the copy. None of the homage characters in Erfworld are, to the best of my knowledge, driving eyes to the site.
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Re: Copyright

Postby Tensor » Thu Sep 08, 2011 9:26 am

I guess I'm just a little confused. On page http://www.erfworld.com/book-1-archive/?px=%2F053.jpg we get a whole line about the Schlock character's image being the property of someone else, and is being used with permission. This particular character inclusion is nothing but a static background image, serving the plot in no way shape or form. Why is that character inclusion so special that it's the only one to get such a by-line, yet others, many of whom have a speaking line or even more, do not?
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Re: Copyright

Postby MarbitChow » Thu Sep 08, 2011 10:52 am

Representative characters receive more protection than 'stock' characters / secondary characters. In the case of your example, 'Schlock' is the titular character of the comic - much like Mickey Mouse would be for Disney. (I think one of the links I originally posted makes this distinction.) I also interpret the Shlock copyright notice as more of an advertisement than a legal protection - it's an attempt by the author to expose the reader to other material that may be of interest to them, especially since the Schlock likeness isn't exceedingly clear (since he's made out of mud).

If there is a strong association between a character and the corresponding property, the copyright is stronger. "Sherlock Holmes" has a strong copyright protection - "Mrs. Hudson" (his landlady) does not; you could easily create a landlady character name Mrs. Hudson, and probably even get away with her mentioning a Baker Street (carefully avoiding to mention which house), without issue, but as soon as you have her mention Mr. Holmes and Mr. Watson, or 221B you may have crossed the line.

The Weird Sisters are not 'main characters' in the Gargoyle series, and are explicitly based on the William Shakespeare characters, so they're almost certainly public domain.
I'm not sure Carson ever copyrighted or trademarked the Carnak character, so it's possible that only the recordings themselves are protected by copyright, not the likeness.
A groundhog with a guy in a top hat is a clear reference, but note that public figure likenesses are not copyrightable (a rule which allows the Paparazzi to make a living), although works created by using these likenesses can be (such as Warhol's iconic Monroe painting, or the Obama Hope poster).

You'll want to read this:

http://fairuse.stanford.edu/Copyright_a ... 9/9-b.html

The Transformative factor & the parody protection may be the deciding factor here. None of the characters in Erfworld *are* the original characters. That is clearly spelled out. All of the characters are casters in another dimension. They bear superficial similarities to Earth characters (both real and fictitious), but it's clear that none of the casters *are* the originals. They just superficially look like them - they are parodies of the characters.

But again, I'm not a lawyer, and I haven't really studied this stuff in much depth, so do not take any of my words here as legal advise. :D
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Re: Copyright

Postby drachefly » Thu Sep 08, 2011 11:19 am

Tensor wrote:
drachefly wrote:What? This is so far within fair use it's not even funny.

Where do you draw this conclusion from?


Before we get started seriously, let's set aside Punxutawney Phil, as he's a real-world celebrity. Totally fair game no matter what.

Let's see the rules on fair use, shall we?

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The purpose and character issue is concerned with two main things: whether the use is derivative or transformative; and whether the work is critical (i.e. whether it's about the copyrighted work, as satire or a review). I'll take it in two parts:
- On the question of transformation: "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. … Transformative uses may include … symbolism, aesthetic declarations, and innumerable other uses."
Erfworld is using them as symbols, not as the original characters. We already know what these people must be like, so we don't need to be told that they're predictamancers.
Note as a matter of scale that simply making thumbnail versions of large images is transformative because of the different purpose (providing convenient access). Meanwhile, creating a trivia book mostly composed of humorous elements from the copyrighted work it is about is not transformative (Castle Rock Entertainment, Inc. vs Carol Publishing group). Nothing substantially new was added in that case (only 2-4 wrong answers for each question), and the purpose of consuming the book would be to experience the original copyrighted work in a different way (this feeds into part 4).

- Erfworld is not critical, and is commercial, so it fails on those two issues. However, passing these is not at all required for a successful fair use claim.

2) the nature of the copyrighted work;
The characters that have been used are themselves tightly derived from archetype. This sets the context, that the referenced material does not own the creative space around it. This will come up in part 3.
However, fundamentally, the nature of the copyrighted work is fictional, so Erfworld does not gain the overall benefit of this aspect. Again, this is more of a special case where if this is 'passed' then fair use is greatly favored, while it doesn't do much against fair use.

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Clear win here - tiny portion of the original work used as a tiny portion of the using work.
Moreover, the use is not appropriating the characters, but merely the representation of the archetype. This applies to the Weird sisters and Carnac, at least; not sure about the others.

4) the effect of the use upon the potential market for or value of the copyrighted work.
This is "the single most important element of fair use" as stated by the courts, and it is an even clearer win! Erfworld could in no sense be used as a substitute for the originals. If there is any impact at all on the copyrighted works, it is positive.

Conclusion: The only things Erfworld has going against it is that the copyrighted works are fictional, Erfworld is not reviewing or satirizing them, and it's released for profit. Everything else from the kind and magnitude of the use to the expected impact is in its favor.

I'm not a lawyer, but it doesn't take a lawyer to see how far off the borderline this is.
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Re: Copyright

Postby Tensor » Thu Sep 08, 2011 11:51 am

drachefly wrote:Conclusion: The only things Erfworld has going against it is that the copyrighted works are fictional, Erfworld is not reviewing or satirizing them, and it's released for profit. Everything else from the kind and magnitude of the use to the expected impact is in its favor.

I'm not a lawyer, but it doesn't take a lawyer to see how far off the borderline this is.


I don't think it's a far from the borderline as you think it is, but in any event, what you say and what I say is merely speculation. What really matters is if one of the corporate heavyweights come down on Erfworld for using their stuff. That would suck.
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Re: Copyright

Postby Unclever title » Thu Sep 08, 2011 1:03 pm

Tensor wrote:I don't think it's a far from the borderline as you think it is, but in any event, what you say and what I say is merely speculation. What really matters is if one of the corporate heavyweights come down on Erfworld for using their stuff. That would suck.


It would definitely suck, but it's not likely to happen.
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Re: Copyright

Postby Housellama » Thu Sep 08, 2011 5:53 pm

drachefly wrote:
Tensor wrote:
drachefly wrote:What? This is so far within fair use it's not even funny.

Where do you draw this conclusion from?


Before we get started seriously, let's set aside Punxutawney Phil, as he's a real-world celebrity. Totally fair game no matter what.

Let's see the rules on fair use, shall we?

(Lots of legal supposition (which I agree with) clipped)

I'm not a lawyer, but it doesn't take a lawyer to see how far off the borderline this is.


This is a borderline case. Having said that, IF the big D did bring a suit, they would probably win. Why? Because they have money. They could afford to chase the case further than Rob and Xin.

HOWEVER, Disney won't do anything about it. Why? Because there's no money in it. Even assuming they wanted to make an example, they wouldn't choose Erfworld to do it. If they had need to make an example, it wouldn't be because of the usage demonstrated in this comic. If they wanted to sue someone, they'd pick a much better target. There's nothing that can be gained for anyone by taking down Erfworld for the usage by Rob and Xin.
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Re: Copyright

Postby sleepymancer » Fri Sep 09, 2011 9:06 am

There came three maidens, monstrous to look at, Giant daughters of Jotunheim


That's P. Terry's translation of a line from the Voluspa, one of the poems in the Elder Edda, which is the poem of where the world came from in Norse mythology. They are the Norns, the name of the first being 'Wyrd' (in English), Wyrd in itself being an Old English term used to mean 'fate, fortune, chance' [Bosworth Toller Anglo-Saxon Dictionary]. Saying that the use of 'wyrd' would be copyright infringement, would be like saying 'fate' or 'thor' or 'almighty god' would be.

Yeah, the ladies have been around the block a bit, been collated with the Greek Fates (completely different, but similar enough to lump together in neopaganism and fantasy literature :p ) and various other pieces. I don't know about the other characters, but there aren't any ethical grounds that a stance can be made for copyright against the use of goddesses, giantesses (and later, witches). On legal grounds I have no idea; but there are people out there who still worship them so it might be sticky ground to go into court on....
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Re: Copyright

Postby balder » Sat Oct 01, 2011 1:14 pm

Okay, first off, it would be a trademark issue, not a copyright issue. Copyright means "right to copy." If we used an actual image owned by Disney, drawn by a Disney artist, then that would be a copyright issue and you'd be unable to deny that a copy (use) of a copyrighted image had occurred. You'd have to argue that it was a fair use.

When you're writing a story about a universe which has comically oddball congruences to Earth, then having characters who resemble characters from popular culture is necessary to create this new (if arguably derivative) work. Disney could still possibly argue copyright infringement, but they would be more likely to argue trademark infringement or dilution.

Either argument would be tossed out, as Erfworld is a significantly transformative new work which is making a comment on these figures, even if it's only in the broadest sense of subverting "magic in popular fantasy" as a trope. Nobody confuses Erfworld for a Disney cartoon based on the roughly fairy-godmother-looking caster in the Magic Kingdom. Disney would have to argue that they lost business because of the "trade" Erfworld did with their "mark." No case.

If you need a real-life example to get your head around this, just think of all the celebrities and places and trademarked names represented on South Park. South Park is a new work with its own cultural merit, and the fact that they, for instance, made an entire episode into an extended hand jobs joke about Shake Weight® may even dilute the brand value of Shake Weight.

But it's not possible for the makers of Shake Weight to successfully sue under copyright OR trademark, because parodying that product is a protected free speech right under US law.
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