Also known as 'the closed species journal'
This Update(1-15): Added some more to the introduction, clarified points after further looking into it, removed things that don't fit. This isn't a dead journal - I constantly update it, so don't be afraid to comment with questions, corrections or feedback.
Hello and thanks for reading my journal about closed species. I spent two years studying and observing the community to write this; it's an article about what this weird system is about. I only know what I've watched as I've never tried it before, but I was interested in writing about the topic because I noticed a running theme with this kind of art: artists are bullied over ideas they conceive because other artists believe they control their characters in ridiculous ways. This was written to help artists to understand their rights when creating species, putting them online, and exchanging money for them.
Firstly, what's a closed species?
A 'closed species' is a creature that an artist, usually a deviant, creates as an original character of theirs. They're usually animals with objects or food on them, or inspired by Pokemon or other mythical creatures. They're 'closed' because artists who create them falsely believe that they have the right to control who can draw their idea, and will often charge real money in exchange for a credit or a ticket - in other words, if you want to draw a given artist's closed species, you have to wait til they're selling these tickets, buy one, then you have permission to create your own character based off their idea.
Unfortunately, this isn't necessary to draw someone else's concept - artists who do this tend to be entitled highschoolers looking for a quick way to make money without doing much work. It sounds brilliant, right? Draw a cat, copy it ten times, draw different fish parts on each copy and sell them. People on DA actually pay for this type of thing (and it's probably a kick in the face to actual starving artists around here) when it's merely an exchange of money for nothing - except maybe a drawing of something the buyer doesn't own.
Why buy something you don't own in the end? Why not do what you did when you wanted to make a character to fit in the universe of your favorite canon, be it a cartoon series, video game or even a book? Why not make a fan-character?
Well, believe it or not, that's what your character is, regardless of whether you paid an artist for permission to conceive it. It's a fan-character, the original concept of which still belonging to the creator.Let's talk about something, guys. Let's talk about intellectual property and the difference between what you own about it and what you can't own. While most of this can't be taken too seriously (Technically, none of our characters exist legally unless we go through the trouble of trademarking them, so we can only settle our problems involving these kinds of situations on the online communities in which they take place, where character ownership and other copyrights are often honored with enough proof.), it flies in most art communities and can be a way to better understand the way ownership works.
First let's go with what Intellectual Property is, since I know it's a big phrase that seems lost on our artistic youth.
Intellectual property is a short way of saying 'When I come up with an original (read: ORIGINAL, meaning that you created it, meaning it ORIGINATES from you regardless of its 'uniqueness') idea, it automatically belongs to me'. When something is copyrighted or trademarked, for example a painting, not only is the image itself protected by law, but so is the concept behind the image. It goes the same way with music - the concept behind the song is part of the copyright.
This basically means that if Usher writes a song, Justin Timberlake can't just take his song and perform it unless Usher says it's okay (and other various legal proceedings take place like contracts that determine royalty etc etc).
Likewise, if I drew a picture, my friend cannabiscuit can't go posting it around on her art galleries unless I said she could. If she decided to print it onto some trading cards and sell it, that's when I can take her to court and get all the money she earned off of my artwork (with proper evidence).
Most of the time, though, the average deviantART doodler's ideas aren't actually worth taking people to court over, unless the person who used your artwork mass produced a successful line of backpacks with it or something. We're only really covering things known in the community lately as 'closed species' here, though, so if you're interested in larger scale copyright or trademark laws and need to know how to do something about real time IP violation on dA, deviantART has a great reference right on site for reporting DMCA violations. That page also has some Q and A I might not have been clear about. Check the bottom of the journal for other links.
I'm gonna get deeper into how IP is violated (and not violated) with the following problems, which I tried to make as easy to understand as possible. If you think I was inaccurate in anything, or need me to be clearer, feel free to note or comment with your personal edit and I'll revise it as I see fit, because I want this to be a decent reference.
This is not a subjective exercise; I tried to be as objective as possible. I hardly know the workings of the closed species community - I'm simply out to debunk the notion. It's laughable and easy to disprove. Stop being afraid to draw.
(Note: I don't like to say art can be stolen. A painting at a museum can be stolen. On the internet, art can be 'borrowed' without your permission, but since you still have your original copy of that digital image, it can't be stolen, now can it? When something is stolen from you, you just plain don't have it anymore. So, as a personal preference I'll refer to what many artists call theft or stealing as 'borrowing'. )
Basic Copyright Ownership
Vin draws a picture of a green dog which he calls his character, Dog. What does he own?
Answer: He owns the entire image. He owns the raw drawing, the green dog character, and any copies made of it. This means that legally, Vin reserves the rights others are allowed when using the image of his green dog character and can give rights at his discretion.
What does he NOT own about his character?
Answer: He doesn't own the species of 'dog', the color of the character, or the name Dog.
So if you're following me, he owns his character Dog. He does NOT own dogs as a whole, or the color green. In general, many species artists create are heavily based on animals, fictional or non fictional, and every species can be tied to some kind of inspiration, whether it be minute or obvious. There is no original creature, just millions of ways to use different creatures to create new ones.
Vin finds somebody else has uploaded his image of his green dog on deviantART. What can he do?
Answer: The image is his property, and the character is his intellectual property, and with proper evidence that he created the image, it can be removed. There's no need for further action once the image has been removed. This is also known as 'plagiarism', which is when a person takes another person's artwork, writing, or other IP and uses it as their own without credit or making any changes.
Vin finds that somebody on deviantART has drawn a green dog that looks a lot like his and even is the same shade of green, but the only difference is this person's character is named Bob (and maybe it has different eyes idk). Vin feels strongly that it's a spitting image of his character, Dog. What can he do?
(Bottom image is flipped but pretend it's a brand new completely different drawing shh)
Answer: Vin can't legally do anything to stop this artist from owning a character like his. The concept of a green dog is simply too common for him to truly claim that the artist he found is using his idea. There is no way to prove that the artist directly took his concept.
Vin creates a new character: this time it's a dog with wings. He decides it's his original species and calls them 'dogwings'. He later finds, to his shock, that there are 593485620349 other dogs with wings on deviantart. He insists they all ripped his dogwings off. Did they really?
Answer: No. They are not dogwings, they are just other artists' winged dogs. Vin can do absolutely nothing about this.
Selling Images of IP
Vin creates 5 dogwings in different colors to sell to others. What is he selling and what isn't he selling?
Answer: Vin is selling the ARTWORK of the dogwings. Unless he states otherwise in a list of terms regarding the usage of his art, the person who buys the image has the rights to the image itself only. (In other cases, not Vin's, artists do clarify the terms and specify what can be done with the character image. For simplicity, Vin has no terms. He's selling the image.)
Even though Vin exchanged money with the buyer of his image, he retains the rights to his intellectual property. That means he can draw a thousand more dogwings and keep selling them. The buyer actually has no ownership of the character or its concept - just the image that now has a logged transaction.
Vin chooses to write rules regarding how artists who buy his dogwing designs are allowed to use them. He specifies that new owners must redraw the image to claim ownership. A new owner, Rhy, draws his purchased dogwing as he was told. What does Rhy own?
Answer: Rhy owns the entire image that he drew as well as the one he paid for. He also owns the character he will soon develop with the artwork, but still doesn't own Vin's dogwing concept.
Deriving Characters From Existing IP
Rhy decides he likes the dogwing concept so much that he goes and draws his own brand new character. It's an exaggeration of Vin's dogwing concept. He doesn't call it a dogwing, but it's exactly what Vin has coined as a dogwing. What did Rhy draw?
Answer: Rhy drew a dog with wings. Vin can't do anything about this, but Vin can still claim ownership of his own dogwings. Rhy, however, owns his own character regardless of its similarity to Vin's, and can use it as his own.
Vin has now trademarked his intellectual property: He's chosen a basic design to be his 'main dogwing' and applied for a legal trademark, paid all the fees involved, and now has the legal right to add a 'TM' to his dogwing character. Hell, he decided the name Dogwing was so unique, he trademarked that too. Can he do anything about Rhy's character now?
Answer: The only way Vin has any legal right to stop Rhy is if Vin can prove in court that the following is true:
+ Rhy's character resembles Vin's trademarked character completely, or in an overly obvious way.
+ Rhy calls his character a dogwing, something Vin has now trademarked legally.
+ Rhy attempts to produce something he intends to sell with dogwing art on it.
+ Rhy generally does anything with his 'fan dogwing' that involves profitting off the character.
Problem H1: What if Rhy does everything above, but never once calls the character a dogwing?
Answer: Oops. The ball's in Vin's court now, and Vin has a trademark. He can prove, if he so desires, that Rhy is using his idea because he has evidence (read: He has EVIDENCE, dated evidence in various stages of production) that he trademarked and conceptualized the character first. He can sue Rhy's ass and his balls.
Problem H2: What if Rhy trademarked his character too?
Answer: Vin's trademark was first, and it will be checked that Rhy's character isn't too similar to anything else in the trademark database. Rhy is unlikely to have the chance to trademark something that Vin already claimed is his.
Re-using of IP
Problem I: Vin wants to write a book about his dogwings now, and use some of his recolored images, many of which he already sold to internet users, in the book. Can he do this?
Answer: Yes. As long as Vin is using the images he drew himself, it is still his IP. When he sold the dogwings, he wasn't actually selling anything but a digital copy of an image of his IP. Even if the buyer has designed and established a character based on the image, Vin can still use his original image and make money off of it.
Problem I1: Can a buyer of a dogwing do anything about this?
Answer: No. It doesn't matter what kinds of rules the seller makes up. The buyer has essentially paid to make a fanart or fan character of Vin's visibly copyrighted character. It could be Vin genuinely not knowing what he's doing isn't fair, or knowing full well and manipulating people, but he definitely fooled those buyers good.
Transferring IP Ownership
Problem J: Vin wants to transfer the rights to his entire Dogwing species to Rhy after some behind-the-scenes negotiations because Rhy wants to write books about them as well. What needs to happen for this to be legitimate?
Answer: Vin can choose to do this two ways:
1. He can license the Dogwings to Rhy, meaning, Rhy can use them as long as he promises to share his profit with the IP owner. Vin still retains full control of his original IP but has now given Rhy the ability to use his characters while still getting his deserved profit for conceptualizing the IP. (A good example of this is Sonic the Hedgehog.)
2. He can completely sell his trademark to Rhy. Rhy can now fully own Vin's IP, preventing Vin from having any say in what happens in the future to his IP. (Example: Spyro the Dragon.)
The above is usually done with contracts. Never forget contracts as they are the difference between proving ownership of your IP and having it stolen right out of your paws.
We went into trademarks at the end of the last section, but it was hypothetical to give more answers. Vin doesn't really have a trademark; it's expensive and his artwork has to have an obvious purpose first (or a purpose for the future). More information about Trademarks can be found here.
Now, back to no trademarks: Why is it okay for Rhy to draw his own winged dog based directly off of Vin's? Again, Vin only owns his own concept of a winged dog. He doesn't own all dogs with wings - only the ones he creates with his own hands. Vin's art is his property, and the character is his intellectual property.
When he copyrights his art, he's basically saying 'You're not allowed to use THIS SPECIFIC IMAGE unless it's in the way I tell you', but it doesn't stop Rhy from enjoying his idea and coming up with his own, or even to draw a fan art of a dogwing. There is no stopping Rhy except for Vin being a jerk who doesn't know better about what happens when he shares his artwork on the internet.
Why do some people seem to get away with blatant ripoffs of copyrighted, well known characters? It's called Fair Use. This is another clause in the copyright law that allows someone to use someone else's idea without their consent. The only way they can do this, however, is for education, parody, criticism, or in any way that still shows that they don't claim to own the intellectual property they're using.
There are plenty of examples of this. Most of you know of the Disney princesses. Artists draw them all the time, but violate Disney's copyright once they try to sell the image. Even though they own the artwork, Disney owns the intellectual property and the artist can't legally profit from their own artwork without Disney's permission. However, Disney can't make a teacher stop using a Disney princess as a graphic in their powerpoint presentation any more than they can stop someone from creating a character that clearly resembles a Disney princess but has different clothes, different hair, a different story and a different name.
Everyone knows Pikachu, right? It's my fav pokemon. Anyway, Pikachu belongs to Nintendo, and is the subject of plenty of Fair Use instances. I'm allowed to use any artwork of Pikachu that I want to post below because I am not claiming ownership to the image and I'm using it in an 'educational' article. I'm also allowed to use the artwork to make graphics for my website, just as an example, without owing Nintendo any money.
(I made a mistake in saying Lambtron and the other thing are 'Fair Use' instances. They are not; They are parodies, which is practically Fair Use but different. Parodies are intentional ripoffs used for comedy, while Fair Use simply allows the usage of images created by someone else. Sorry for the confusion.)
If the idea of people being inspired by your art and drawing your characters REALLY scares you, this is how you can control it to the best of your own ability:
- Set up a 'terms and conditions' page somewhere outlining what others are allowed to do with your art or species. This way, they don't have to ask every time, and if someone violates your terms, you can usually have the artwork removed from a gallery website like deviantART or one of its cargo cults. Having some kind of reference for users to be able to check is your right as a copyright holder, but there are obviously some things you can't prevent. Generally, terms will allow or deny copying or reposting of images without permission or at all. (Copying, of course, means reproducing the original image in any form. That means you can't trace it either. *finger shake*)
- Watermark, sign and date your art - No need to get crazy, but the more proof that you created the image is available, the better for you. If you use an application to draw, save the layers separately in a PSD, SAI or RIF file (whatever you use).
- Keep in mind that a 'copyright' notice is literally just that - a copy right. Adding a (c) sign to your art does not legally protect it - you are simply telling a given viewer of that image that you own the rights to the original 'copy' of your image. Get it? Copyright.
Keep in mind that even if things like this are done, fanart and fancharacters are not illegal. They will never be. The only thing you control with your trademark is the distribution and monetization of the IP, not who is allowed to draw it.
Let me make one thing clear: I'm not encouraging you to rip off people's ideas. I'm discouraging you from feeling like your idea was stolen when somebody else has an idea like yours. Intentional or not, you still own your intellectual property no matter how many people draw your idea. It's your choice what you end up doing with it, but it isn't always your choice what the people you share it with will do. Imitation is flattery, not malice.
Now, this isn't the most comprehensive journal on the topic but I hope my watchers at least understand that when you put your ideas out there, there is a chance that either someone already did it first, or will do something similar without your influence or permission. You can't put copyrights on colors or the look of your character. You can't stop someone else from drawing your concept even if you think you did it first.
You CAN bully them into thinking that you're the only person allowed to use that concept, but that doesn't make you right. There are real world consequences to putting your ideas freely on the internet and by doing so, you accept those consequences.
If the rules apply to Disney, Nintendo, Sega and all the other companies where fandoms and, subsequently, fan characters emerge in masses, it applies to your concept just the same. You own YOUR concept and control nothing anyone does with that concept unless they directly take your image and try to profit from it. They have the right to be inspired by your idea for free and spin it off whether you, Nintendo, Sega or Disney like it or not.
And as always, thanks for reading!
- The 'sergal' by Japanese furry artist Trancymick is part shark, part wolf I think.
- Tailmouths by artist Capribebe
- Every Neopet
- Every Pokemon
- Every Digimon
- Na'vi from Avatar
- Those annoying troll things from homestuck
- Citras by Zaush (as much as I don't want to include him, furries loved citras for a while)
- Griffins, dragons, and any mythical creature ever was created by someone at some point, and I sure don't see them getting on DA and calling them closed species.
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