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almightyk
2009-08-18, 08:52 AM
hey i was wanting to work on a game in flash using the characters from OotS by using stances and what not from the comic panels

i was just wondering if this is allowed or if it breaks copyright?

Assassin89
2009-08-18, 09:00 AM
If you use the actual characters, I think it would violate copyright.

Eloel
2009-08-18, 09:00 AM
For anyone who knows the protocol and wants to answer this, here's a tip.
OotS is not copyrighted, it's a trademark.
Make what you will out of it.

Optimystik
2009-08-18, 09:28 AM
I know this much: if you keep the game to yourself, you can do whatever you want.

Jimor
2009-08-18, 10:12 AM
For anyone who knows the protocol and wants to answer this, here's a tip.
OotS is not copyrighted, it's a trademark.
Make what you will out of it.

It's both.

The copyright exists for the specific story, for all the text within the story, and for all art created for the comic strip and merchandise. Using any of this without permission is against the law in any country that's a signee of the Berne Convention on copyright. There are limited exception for fair use as it applies to academic or review purposes, or as satire (so for example if Penny Arcade had Roy appear as a walk-on for the joke in that strip, it's ok). Fair Use does NOT cover non-commercial use for fun or "just sharing".

The trademark covers the overall concept of The Order of the Stick, the characters (even if redrawn), and many of the specific features of the comic strip, like say Azure City as it's described in the comic (other authors can freely use the name Azure City as long as the characteristics of that creation are their own).

I can't find the reference, so hopefully somebody else can post a link or a correction, but I believe the ONLY permission Rich has given is for people to draw fan art of OOTS characters FOR THIS FORUM.

For practical purposes, Optimystik has it right, creating a flash doohicky of the OOTS characters that you keep to yourself and your hard drive is fine. Posting it in public anywhere is illegal without permission, and more importantly, most uncool.

(Not a lawyer, but a member of a professional writers organization where these issues are talked about on a regular basis)

Forbiddenwar
2009-08-18, 11:04 AM
It's both.

The copyright exists for the specific story, for all the text within the story, and for all art created for the comic strip and merchandise. Using any of this without permission is against the law in any country that's a signee of the Berne Convention on copyright.
good so far.

There are limited exception for fair use as it applies to academic or review purposes, or as satire (so for example if Penny Arcade had Roy appear as a walk-on for the joke in that strip, it's ok). Fair Use does NOT cover non-commercial use for fun or "just sharing".


This is not true. Fair use is far more expansive than that. Fair use uses four factors weighed in unison in order to determine if use is fair or not. Purpose of the use, Nature of the work, Extent used, and market effect on original work. Fair USe is not just for academic, review or satire purposes! Stating that so is wrong. Purpose is only one factor. Consider Goodnight Bush, a paraody of Goodnight moon. Very profitable. Consider Obama campaign posters taken from a AP photograph, very profitable as well, all done without permission of the copyright owner and all legal.

There I've put you to sleep. I'll PM the OP an in depth message about fair use, if he wants.
This use maybe fair and legal, even if the OP sells millions of copies of it, considering all the factors together.

Jimor
2009-08-18, 11:41 AM
This is not true. Fair use is far more expansive than that. Fair use uses four factors weighed in unison in order to determine if use is fair or not. Purpose of the use, Nature of the work, Extent used, and market effect on original work. Fair USe is not just for academic, review or satire purposes! Stating that so is wrong. Purpose is only one factor. Consider Goodnight Bush, a paraody of Goodnight moon. Very profitable. Consider Obama campaign posters taken from a AP photograph, very profitable as well, all done without permission of the copyright owner and all legal.

There I've put you to sleep. I'll PM the OP an in depth message about fair use, if he wants.
This use maybe fair and legal, even if the OP sells millions of copies of it, considering all the factors together.

Political subjects are always weird when it comes to fair use, from both sides of the issue (having your stuff being used, or using it yourself), and the first case is parody as you admit yourself.

From
http://www.copyright.gov/fls/fl102.html

It outlines the 4 factors you mention, and then:


The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

Aside from the news and government uses noted above, I don't see any exceptions from what I stated above, and I left those out because most people aren't going to be affected by them in everyday life. Fair use is squishy enough of a concept that just about anything might be justified through it, but that's not the way to bet from any common legal precedent.

What I also forgot to state in my first post, and which is the most important factor, is that copyright is what controls derivative and subsidiary works. Sequels, prequels, side stories all go to Rich via his creation of the original OOTS strips. Likewise the creation of board games, video games, animations, movies, live action adaptations, radio plays, whatever, it's all a function of copyright ownership.

Now trademark certainly travels across all these properties, and in some cases, defending on trademark grounds makes more sense than defending via copyright, but the base ownership of the material derives from copyright.

Forbiddenwar
2009-08-18, 01:03 PM
Fair Use is squishy becasue A) only a court of law can determine fair use. and B) each case is taken in a vacuum, with its unique characteristics to consider. However, we can assess pretty accurately how a court will rule on those factors

Great help is this tool:
http://librarycopyright.net/fairuse/

Purpose:
Favoring Fair Use
Use is for "criticism, comment, news reporting, teaching, (including multiple print copies for classroom use), scholarship or research"
Use is transformative, i.e. it uses the existing work in a new way (creates an index to the work) or for a new purpose (parody, pastiche, instructional materials, etc.) Transformative works are favored because the purpose of U.S. Copyright Law is to encourage the development and dissemination of new knowledge to benefit the public and thereby advance learning.
Use is socially beneficial (promotes the creation of new knowledge, learning, etc.)
Use is not-for-profit
Use is clearly defined and is restricted in scope (limited duration, not iterative, restricted access, etc.)
Use is one-time, or is only occasional or spontaneous

Opposing Fair Use
Use is NOT for “criticism, comment, news reporting, teaching, scholarship or research”
Use is for-profit, or by a commercial entity Original work is simply duplicated, or reused toward its original intention, rather than being used to create a new work with a new purpose
Scope of the use is not well defined or is systematic, iterative, or ongoing
Use creates a derivative work of the original (full translation, adaptation, abridged version, etc.)

Nature:
Favoring Fair Use
Work to be used has been previously PUBLISHED
Work to be used contains limited new knowledge, content, or creative expression (in relation to previously copyrighted works)
Work to be used is primarily of a factual nature (non-fiction, collection of facts, etc.)
Original work was not created and/or has not been marketed for the stated purpose of the proposed use

Opposing Fair Use
Work to be used is UNPUBLISHED (not simply “out of print,” but never actually published)
Work contains a significant amount of new knowledge, information, or creative expression
Work is of a category of works considered highly creative (fine art, musical works, drama, artistic photography or film, etc.)
Work being used was created for and/or is being marketed for the stated purpose of the proposed use
Work is a “consumable” (workbooks or other such educational or other materials that are typically used only once)

Amount:
Favoring Fair Use
Only limited and reasonable portions will be used
The portion used is not the “heart” of the work (the portion considered most central to the work as a whole)
Only the amount required to achieve the stated, socially-beneficial purpose or objective will be used (be that educational, artistic, scholarly, journalistic, etc.)
If the entire work is to be used (which would NOT favor the use being fair), it is clear that no less than the entire work will achieve the stated purpose of the use (e.g. use of a photograph, a short poem, an article, etc.)
The amount used falls within widely recognized fair use guidelines* vetted by key stakeholder groups [reference guidelines]

Opposing Fair Use
The entire work, or the “heart” of the work, is used (the “heart” is the portion considered most central to the work as a whole)
portion of the work greater than what is needed to achieve the stated purpose or objective is used
The amount used clearly exceeds established fair use guidelines [name guidelines]
An excessive, or unreasonable amount of the work is used

Effect:
Favoring Fair Use
The work is NOT currently under commercial exploitation (out of print, no licensing available, etc.)
A market for the work as it will be used is absent or is negligible & use of the work will have little or no negative impact on its value or potential value
The copyright holder cannot be identified or cannot be found after a reasonable search, or, once found does not respond (one way or another) to requests for permission to use the work
Use of the work minimizes the potential for unauthorized use that could impact its value (i.e. steps are taken to ensure the content is not used outside of the stated purpose or audience)
Use of the work has the potential to create or improve the market for the work
The copy of the work to be used is a legal copy
Proper attribution will be given with the intended use

Opposing Fair Use
The work is currently under commercial exploitation (in-print, clear licensing available, etc.) and the use substitutes for purchasing or licensing a copy The work already has an established market, or the clear potential for a future market as it is being used
The copyright holder denies a request for permission to use the work
The work is used in a way that would allow for unauthorized use that could negatively impact on its value
The copy of the work to be used may not be a legal copy
Use of the work has the potential to damage the market for the work or its potential value (reduce profits, damage or put market at jeopardy, etc.) Proper attribution will NOT be given with the intended use

These factors are weighed together. Just because the effect is deemed unfair, doesn't mean the use is unfair, if other factors may be fair.

The intent of copyright law is to balance the rights of the owner with the rights of the users. To promote the growth of new arts and sciences.
After 2 1/2 years studying copyright as part of my Masters, I like to think I know something about Fair Use.

Jimor
2009-08-18, 01:58 PM
Ah, I understand the problem, now. Going by your bolded text, you're thinking that this is transformational, which generally applies as is stated in the second half of that statement, to informational and educational material for learning purposes. With fiction and art, what we're talking about is in just about all cases is derivation, which falls on the "not fair use" side in that list.

The right to control derivative works is one of the most important commercial components of copyright, and since it so directly impacts current and potential revenue sources, is the kind of thing that could, all by itself, trump the categories that would presumably favor fair use.

Because, like you say, the case is taken as a whole in a vacuum, and unless some compelling arguments on whether to deny Rich his commercial and artistic rights are made, I'm pretty sure which direction this case would go.

Forbiddenwar
2009-08-18, 03:02 PM
Yss, reading over the post, if this is a derivitive work, it would probably be not allowed under copywrite law without permission. If he was creating an OOTS flash game. If he was creating a different flash game not based on OOTS, used a few images (not whole strips but just a character pose or two) created by Rich Burlew, Credited Rich. It would probably be fair use.

Transformative is not just for educational purposes. The recent law case involving Obama Campaign images shows us that. In that case, an artist took an Associate Press Photograph and painted it emphasizing some colors over others. It appears very alike the photo. However, the court ruled that is use, through a derivative work, was transformative as the work, and its audience and purpose, changed. This is the famous campaign image sold on millions of T-shirts, buttons, posters and bumper stickers. It has raised millions of dollars. And the AP, who owns the photograph the painter used, is not entitled to a cent.

Ancalagon
2009-08-19, 04:20 AM
hey i was wanting to work on a game in flash using the characters from OotS by using stances and what not from the comic panels

i was just wondering if this is allowed or if it breaks copyright?

The discussion above is a bit lenthy, the point is:

A) You can create such a game for yourself.
B) If you want to share it or even put it "out into the open" (upload it somewhere), you WILL need Rich's permission. Which you, based on the statements I saw so far from him, will not get.

The OotS is his work and the way he makes his living. If you were him, would you want anyone to use your stuff for free and for "questionable projects".
With the high standards of quality he has, he probably won't give the permission to use his stuff to "anyone who just asks" (which means "you").

But here comes the big bottom line: Even if it WAS allowed by law (which it is not) it would *still* be a very fair and morally necessary move to ask the author (and respect his answer, no matter what it might be).

Tijne
2009-08-19, 04:44 AM
Seeing as OotS is a comic about -stickfigures-, I'm sure you can alter the appearance of your models enough for them to not be recognizable. Use different names, give them different looks, and just simply make them different people altogether.


There's no law that I know of saying you can't be 'inspired' by something, just that you can't outright copy it. And I'm pretty sure Rich hasn't completely trademarked/copyrighted stick-figure art. ..... (Yet.)

Dallas-Dakota
2009-08-19, 05:38 AM
As far as I know, the ''OOTS'' style, also called ''Burlewan'' is neither trade-marked nor copyrighted.

However anything else such as characters, places are both copyrighted and trademarked.
About fair use: I suggest you read the discussion above, or just google it.

Jimor
2009-08-19, 05:47 AM
Rich has made it pretty clear that "OOTS Style" figures and artwork are perfectly OK to use on and off the site. While there is legal precedent for a "look and feel" trademark (V.C. Andrews book covers being one such case), he isn't pursuing anything like that.

It's the specific characters of his creation that are limited in use.

Personally, I'd ask some of the fan webcomic artists if you can use their characters instead. You get the same style to use, which is great for flash projects, and they're very likely to help you with templates, plotting, and other aspects of the project. :smallsmile:

Serpentine
2009-08-19, 06:00 AM
You might consider making the game, or a representative slice of it, and showing it to Rich to get a ye or nay straight from him.

Mystic Muse
2009-08-19, 06:03 AM
I highly doubt Rich will give his permission on this matter but it's possible.

Ancalagon
2009-08-19, 06:11 AM
Copyright: Simply because he is the author, simply because he created it, he has the copyright. You don't have to actively do something to get the copyright of your drawing and writings. Copyright usually (depends on the country) for 50 to 100 years after the authors death (which hopefully won't happen in decades in this case).
Copyright is indicated by the small, encircled "c". In this case, you see it on the bottom left of so far 672 comics.

Trademark: You can trademark names, logos, characters, outlines, etc... in case of unregistered trademarks (the "tm" on the giant in the playground in the top left corner indicates we have unregistered ones here) "first use" usually applies (and I doubt anyone could argue to have used the stuff here first).

But this distinction is a bit moot here: If someone uses Rich's stuff, it's a copyright violation, which is "rude" at least (if you do not ask), can be "very bad" (for example, you create "utter crap" and people associate it with the brand "order of the stick", which is bad, as Rich makes his living from it and has to rely on the good repuation) and "criminal" at worst (if even you try to make money from it).

Zen_Heart
2009-08-19, 01:26 PM
Stupid complicated copyright laws... A couple clearer boundaries would be nice...

While we are on the topic, I'm going to throw this question out as well--at what point does inspiration become copyright infringement? For example, if one made a story with a character inspired from, say, Elan or a story inspired from the plot line of OOTS or Harry Potter or what have you, when does it stop being okay and start being illegal? Then again, the boundaries aren't clear from what I've already found out...

Forbiddenwar
2009-08-19, 02:23 PM
Stupid complicated copyright laws... A couple clearer boundaries would be nice...

While we are on the topic, I'm going to throw out this question out as well--at what point does inspiration become copyright infringement? For example, if one made a story with a character inspired from, say, Elan or a story inspired from the plot line of OOTS or Harry Potter or what have you, when does it stop being okay and start being illegal? Then again, the boundaries aren't clear from what I've already found out...

When you are copying whole paragraphs, passages, scenes, chapters etc. Until then it is fair game, since no one can copyright an idea. (otherwise the Matrix would owe a lot of people, like tron and lawnmower man, money) Note than Fan Fiction does not violate copyright, until they start copying dierectly from other scripts.
Feel free to write a character named Elan who is a bard and acts silly (don't most bards?) it's an idea

Jimor
2009-08-19, 03:18 PM
When you are copying whole paragraphs, passages, scenes, chapters etc. Until then it is fair game, since no one can copyright an idea. (otherwise the Matrix would owe a lot of people, like tron and lawnmower man, money) Note than Fan Fiction does not violate copyright, until they start copying dierectly from other scripts.
Feel free to write a character named Elan who is a bard and acts silly (don't most bards?) it's an idea

Fan fiction is completely a violation of copyright. It's just one that usually flies under the radar as not worth the time and bother to pursue. An Elan the Bard that isn't obviously the Elan from OOTS is ok, just as you say, but as soon as it becomes clear that it's the OOTS world that's being used, it becomes a DERIVATIVE WORK.

I don't know what your professors are teaching you, but this is just outright false and damaging to the creative rights of authors. The ONLY reason fan fiction is able to stay under the radar is because people don't try to make money off of it, if it were legal, then any publisher would be able to make an offer for regular publication and put it in the corner bookstore.

As it stands now, a standard DMCA notice is all that is required to have ANY fanfiction pulled from U.S. servers. There's a lot of nonsense going around that these are "transformative" works instead of derivative (there's even an organization built around this concept), which is a movement created specifically to attack and subvert the rights of original authors. If this movement gains traction, the only way for authors and publishers to re-assert their rights would be to be very aggressive regarding fanfiction and have it removed whenever its found, and nobody really wants that kind of open warfare.

Do not mistake the generosity of authors in turning a blind eye to violations of their copyright as blanket permission to compete commercially with their creations.

veti
2009-08-19, 04:20 PM
When you are copying whole paragraphs, passages, scenes, chapters etc. Until then it is fair game, since no one can copyright an idea. (otherwise the Matrix would owe a lot of people, like tron and lawnmower man, money) Note than Fan Fiction does not violate copyright, until they start copying dierectly from other scripts.
Feel free to write a character named Elan who is a bard and acts silly (don't most bards?) it's an idea

Not true, I'm afraid. Good ol' Disney established, back in the '70s, that individual characters within a fictional work amount to "works" in their own right, and can't be copied. Hence you're not allowed to draw Mickey Mouse without their permission (which you won't ever get), even if you put him in a wholly original pose and setting.

The only wiggle room is about what constitutes a "character". If you directly copy Elan, give him the name "Elan" and make him a bard, that's pretty clear. But even if you (for instance) give him dark hair, make him a rogue and call him "Tim", he might still be considered a copy of Elan, depending on other characteristics. That's the sort of question that makes lawyers rich.

Basically you have two options. You can create your fan-work and never let it out of your sight (that includes not ever letting anyone else have a copy of it - if you want them to see it, they'll have to come and sit at your computer, while you watch to make sure they don't smuggle out a copy somehow). Or - and this is by far the best option - you can ask for Rich's permission. You never know, he might say "yes" subject to certain conditions.

almightyk
2009-08-19, 08:34 PM
so how can i get in contact with him?
and does he post on these forums?

Watcher
2009-08-19, 08:42 PM
Look at the very first stickied post. "The Giant" is Rich.

[TS] Shadow
2009-08-19, 10:03 PM
As long as you're not getting paid for it, you'll most likely be fine.