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Derivative works and their laws

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N

notonion

Guest
To be as concise as I can be, I'll try to describe all the details possible without revealing names. I need assistance in how this should be considered.

A very talented artist, whose art has graced BBSes and the internet for well over a decade, currently, among other things, has an online comic strip. This strip has many mature themes and discussions, but does not go so far as to openly show sex or full nudity. The implications are there, but just as part of the story when needed.

The artist has made it very clear and very public that he does allow fan art to be done, so long as they don't harm the characters themselves, or are outright sexually explicit in any format. He's been very supportive of his fandom, but has said he'd appreciate people listening to this request of his on his own characters, especially since one of the characters is well under 12.

However, a bunch of his fans have decided that they like the characters too much, and have created an online and physical "trading route", where they trade sexually explicit images of his characters, even after he's asked them to stop.

As far as everyone is aware, all entities who are part of this on both sides live in the USA. The artist is an Ohio resident, and has always owned his works in this state. The rest of the parties are trying to remain as anonymous as possible to continue trafficking in sexually explicit art based on his creations, but continue to argue that he has no rights to stop them.

Now I come to the very meat of this argument. Someone saying that he is well versed in Copyright and Trademark law, and someone else who has a friend he talks to regarding matters like this who is a lawyer fully knowledged in intellectual property law, both state that derivative works of any kind, so long as they're new art, even based on someone else's creative works, are fair use and perfectly legal. They also state these new works gain new copyright owned by the new creators, and the original creator of the characters and story has no claims to them, nor can he ask them to stop distributing them.

These two, among other parties trafficking in the new artwork, claim that this is perfectly legal and are advocating people continue doing so because there's nothing the creator can do, and to continue doing it to spite him after he's asked repeatedly for them to stop.

Now to my questions:

How accurate are these "law" people in their interpretation of the laws at hand?

Does the original creator have say to stop sexually explicit derivative works of his creation?

Is anything new based on others' copyrights and creations automatically fair use, and is it then copyrightable to the new creators?

What legal recourse should the creator take in order to regain any and all rights he still has?
 


ALawyer

Senior Member
If you did a "derivative work" of Mickey Mouse or Snoopy, you'd be hauled to court in a heartbeat.

The answer is that the owner of the work needs his or her own counsel to advise him or her on the rights s/he enjoys and options open given all the facts, including the prior permissions granted, the time that has elapsed, etc.
 

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