OOTS Animated Flash Avatars Question

[۞Christian۞]

Are custom Flash avatars of OOTS characters allowed, and how might I go about requesting permission?

I play a MMO called Whirled where users create much of the content of the game, and as I've been a long-time OOTS reader, I made avatars for four of the OOTS characters (Xykon, Belkar, Haley, and the Monster in the Darkness). I drew images based on the original art, animated them, and imported them into Whirled under the ostensibly mistaken belief that Rich wouldn't mind a little "fan art" of his copyrighted material. The characters look as they do in the series, walk around, fight, dance, loot, and offer a few quips from canon. Everything was clearly named for what it was, with credits given Rich as creator / copyright holder.

Since then, someone's sent me an excerpt of Rich's policy regarding reproduction and distribution of his artwork, which was rather draconian compared to my earlier assumption - perfectly understandable given he makes an income from his work, and it's his, so he can do whatever he wants with it anyway. I apologize for my earlier failure to request permission. The avatars have been removed from the site.

This does leave wasted some nice animated flash avatars. Items are distributed via the game "shop," which requires sellers to charge either a real currency equivalent or a Monopoly money equivalent (I opted Monopoly, of course), though profits in most cases remain negligible for the real currency chargers. In the event that I don't receive permission for reposting, I'd still be glad to send Rich the files so that they don't go to waste, but that brings up the question of communication, and that's why I'm posting here.

[The Recreator]

Nope. The problem isn't even the use of OotS characters - it's the use of Flash animations as an avatar or signature (http://www.giantitp.com/forums/announcement.php?f=22&a=1) (scroll down to "Avatar & Signature Rules").

Wait - upon further review of the question, it sounds like what you're talking about is the use of OotS characters on other sites. For that, I refer you to the Fan Comic Guidelines (http://www.giantitp.com/forums/showthread.php?t=103774), which detail under what conditions you can and cannot use the OotS characters. Generally, their use is protected under Fair Use (http://en.wikipedia.org/wiki/Fair_use), but that's a tricky subject.

[Xesirin]

What you're asking is a tricky question. I am using wikipedia (http://en.wikipedia.org/wiki/Fair_Use) to supplement my understanding of Fair Use, so here's what I suspect is the case.

There's four parts to Fair Use. Purpose, Nature, Amount, and Effect. Purpose is what you're doing with the work, Nature is what sort of work is being copied, Amount is whether you're using a few characters or the entire universe, or any median in between, and Effect is whether the use of the work can be anticipated to affect the market value of the work.

So, the breakdown. I'll be rating how each catagory is in favor of you or not.

Purpose: Somewhat Not in favor.
What they (and by 'they' I mean the courts) tend to look for are two things here. Either you might be parodying Rich's work for the sake of comedy, (which Fair Use permits) or you might be trying to educate regarding an issue that is very prevalent in OotS. Parody is loosely defined, and you might qualify under that issue, but a good lawyer could argue the other way around.

Nature: Not in favor.
Rich's universe is a work of fiction that, through careful use of Fair Use himself, is emulated in a D&D universe. If his work were more factual in nature, (eg, documentaries and works of that nature) then you would be more in favor here. Fiction works in general tend to weigh against this catagory.

Amount: In Favor
You're using a few characters and some stereotyped attributes of them. I don't know what quotes you used, but I suspect that orphaned catchphrases are not likely to portray much of the story of OotS. For the most part, you've pulled a small part of his work, and likely are more on the legal side of things in this regard.

Effect: In Favor Not in favor.
While its certainly arguable that anything anyone does with a work can affect how well it sells, this probably doesn't. It's just a use in a video game, and would very unlikely affect how well it sells. This is obviously not a substitution for the original work on this website, as there's no way anyone could gleam the story by looking at these avatars instead of going to this website. You're also not trying to sell these images, which could potentially impact Rich were you to do so. People aren't going to look at your images and think "Gee, now I never need to go to Rich's Website ever again!"

EDIT: As pointed out, since profit can be made using this system, this weighs very heavily against Free Use. Wikipedia mentioned that it's not impossible to win a case for Free Use even if commercial use is involved, but it does hamper your chances substantially.

Overall Analysis: Maybe
My own analysis says that you're treading the line between what's acceptable and what's not. Effect seems to be one of the more important factors in determining Fair Use, and for good reason: If it doesn't affect the profitability of the website, then there isn't much reason for the website's creator (Here: Rich) to even care.

EDIT: As mentioned, the additional information seems to weigh against my original analysis. I'm going to have to say--> Probably Not

I will say, however, after doing some archive backlogging, that Rich has said no to what seemed to be 'acceptable' requests. Alot of this has to do with him having witnessed some fairly nasty cases of Copyright law and what happens when the Creator doesn't properly protect their works. I understand he's had to fight a few court cases over publishing companies trying to usurp him. He's won all of them, IIRC, and his successes have provided some momentum to protect him from future problems, but Copyright Law is rarely clear-cut.

So just a few more things: I am NOT a Lawyer, nor a Law Professor, nor a Law Student, nor an underpaid High School Teacher. (My use of wikipedia to answer your question should have hinted at that) I may not be completely or even partially correct on what I've posted here. I know Rich DOES have a working knowledge of Fair Use, and can explain the issue himself if he feels compelled to do so.

Xesirin Out.

[NerfTW]

It's not a tricky question at all. You are using "monopoly money" but then state that this money can be redeemed for cash. Therefore, you are selling Rich's product, which is a clear violation, no matter how the internet lawyers here want to massage the facts.

You're actually risking a lawsuit, not just a take down notice.


I know Rich DOES have a working knowledge of Fair Use, and can explain the issue himself if he feels compelled to do so.


He retains an actual lawyer. This isn't some kid in a dorm room, this is an actual company.

[Xesirin]

It's not a tricky question at all. You are using "monopoly money" but then state that this money can be redeemed for cash. Therefore, you are selling Rich's product, which is a clear violation, no matter how the internet lawyers here want to massage the facts.

You're actually risking a lawsuit, not just a take down notice.

I suppose it would be good to clarify how exactly that system works, since I am not familiar with it, having never played the game in question.

[NerfTW]

From the FAQ that I just looked up (no experience with it either)




* You can only sell things that you have uploaded and made yourself. Once you have made something, look at it's details in your Stuff and click the List Item link. There are different pricing strategies you can use, and you can choose to be paid a percentage of each sale in either in Coins or Bling which can be traded for Bars or real money.
emphasis mine.

Very clearly making a profit off his work.

[Xesirin]

Good point. I edited my post to reflect.

[۞Christian۞]

Fortunately, you misunderstand the currency system the game uses.

There are two individual, unique currencies that enjoy a relationship whereby real currency may purchase fake currency, but fake currency may not purchase real currency. As I posted the characters for fake currency, I had no way whatsoever to redeem "profits" for real currency, or even spend this fake currency on real currency items, though the potential exists for the game makers themselves to make some profit this way (which's why they have a strict removal policy at copyright owner's request), although maximum potential profit to date for even the company amounts to roughly $2.15. As I said, the real currency for any individual player or creation is pretty laughable, and the avatars, though well made, were never very popular outside of the small overlap of OOTS fans / Whirled players. In my case, there's zero real currency potential.

Regardless, the question isn't whether or not I have some sort of legal standing for posting these items - even if I could argue one, I wouldn't; I appreciate Rich's work and respect his wishes for it, even to the extent of clear legal use, such as parody. The question, since my potential profit is zero, and the game creator's potential profit will never exceed $5~, is does Rich "mind?" Personal policy or wishes regarding the material in question. How does one ask him?

[Xesirin]

Fortunately, you misunderstand the currency system the game uses.

There are two individual, unique currencies that enjoy a relationship whereby real currency may purchase fake currency, but fake currency may not purchase real currency. As I posted the characters for fake currency, I had no way whatsoever to redeem "profits" for real currency, or even spend this fake currency on real currency items, though the potential exists for the game makers themselves to make some profit this way (which's why they have a strict removal policy at copyright owner's request), although maximum potential profit to date for even the company amounts to roughly $2.15. As I said, the real currency for any individual player or creation is pretty laughable, and the avatars, though well made, were never very popular outside of the small overlap of OOTS fans / Whirled players. In my case, there's zero real currency potential.

Regardless, the question isn't whether or not I have some sort of legal standing for posting these items - even if I could argue one, I wouldn't; I appreciate Rich's work and respect his wishes for it, even to the extent of clear legal use, such as parody. The question, since my potential profit is zero, and the game creator's potential profit will never exceed $5~, is does Rich "mind?" Personal policy or wishes regarding the material in question. How does one ask him?

Doesn't really eliminate the problem, but it does reduce your liability.

If you want to ask Rich yourself, you could try E-mailing him or sending him a PM, but I can't make any promises as to whether he'll recieve them or not. (I don't know how trafficked his E-mail and PM boxes are)

[NerfTW]

I had no way whatsoever to redeem "profits" for real currency, or even spend this fake currency on real currency items, though the potential exists for the game makers themselves to make some profit this way (which's why they have a strict removal policy at copyright owner's request), although maximum potential profit to date for even the company amounts to roughly $2.15. As I said, the real currency for any individual player or creation is pretty laughable, and the avatars, though well made, were never very popular outside of the small overlap of OOTS fans / Whirled players. In my case, there's zero real currency potential.

That's not what the FAQ I quoted says, and still, laughable amount or not, it's still profiting off his work.

[۞Christian۞]

I appreciate the thought in responding, but it's clear that none of you are qualified to answer this question. Thanks for trying. 8\

[BatRobin]

I appreciate the thought in responding, but it's clear that none of you are qualified to answer this question. Thanks for trying. 8\

We told you the facts (ok, more them than me...all them really), and it's that it's bascially copyright with no permission or something.

[The Recreator]

I appreciate the thought in responding, but it's clear that none of you are qualified to answer this question. Thanks for trying. 8\

The only person qualified to answer, then, is Rich Burlew. Go email him.

[NerfTW]

I appreciate the thought in responding, but it's clear that none of you are qualified to answer this question. Thanks for trying. 8\

Translation- "I didn't get the answer I wanted, so I'm just going to say you don't know what you're talking about."