META: Let’s talk ownership

An interesting discussion has arisen in the context of the current Character Design contest, and I wanted to highlight it here for more thorough dissection. In a word, the subject is ownership.

First, let me say that I'm not an attorney, and that UGO will probably have a fit when and if they see this. So I don't intend this to be anything binding on anyone, it's just an exploration of various issues involved with being a creative person using a tool like HeroMachine. Furthermore, this is just my personal opinion.

My position on ownership as it intersects with HeroMachine is this:

You own your character concept. Period. Full stop.

If you create something with HeroMachine and publish it, then that idea is yours. If someone sees it, makes an exact copy in HeroMachine, and then tries to go publish a comic book using that character, then by all means sue the pants off of them, with my full support. Because that idea and design is yours.

However.

As that character design exists within the confines of HM, it's NOT yours. It's MY collection of art, which is simply being assembled in a certain way.

Put another way, I don't own your ideas even though you used my art to illustrate it, and you don't own my collection of items even if they happen to exactly match the illustration you made. So you can't later come and sue me, claiming that it's possible to use HeroMachine to create a facsimile of your character. If you want to go after someone because you feel like they're stealing your idea, then go after that person. Because you can't claim ownership over my art within my program, even if someone's using it in an infringing way.

On a more personal level, my goal with this software is to encourage creativity, to make it possible for imaginations to come to visual life. If every single person who ever used it to create an image of their character were able to stop anyone else from ever using it to make a similar image, pretty soon the software would be unusable.

On the other hand, I absolutely and vehemently reject the idea that I could use this as some kind of creative tar pit, sucking people in to give me their ideas, so that if someone hits it big with a character they designed here I could come along and sue them for everything they own, trying to say that somehow *I* own the concept just because you used my software to create it.

So that's the line I've always walked with this thing. The only way to protect the free exchange of creativity and ideas for everyone is to draw a line around the product and say "You don't own anything inside these walls." But at the same time, you completely own the ideas that you're bringing INTO it to illustrate. If you all want to fight about who owns what, do it outside of our safe harbor.

Now, that's the way *I* see it, but I want to know how *you* see it. So how would you feel if someone took a character you created and revamped it using HeroMachine, so long as they are not claiming credit for the concept?

24 Responses to META: Let’s talk ownership

  1. Now personally, I’ve never been paid to create art or characters. I don’t owe my livelyhood to the craft, it’s just something I do for fun. That said, if someone looked at a character that I created, and liked the character enough to create their own take on it, and paid close enough attention to what I did that they could see fresh possibilities, well, honestly I think I’d be flattered.

  2. So, you’re saying you own the pictures that we create in HeroMachine, so to speak, but you don’t own the characters themselves?

    In a way, that makes sense. It would be like the illustration of Kid Chaos you did for DiCicatriz. You own that picture, but the actual character of Kid Chaos is still DiCicatriz’s property.

  3. Actually, when I saw the Facebook post asking if it was okay with the Facebook people to do the “Revamp” contest, I considered uploading some of my old 2.5 pictures just to see if anyone would pick them to redo. 🙂 (I didn’t, but I still might after I’ve decided what I’m doing for the contest.) So, yeah, I agree with Mark: I think I’d be flattered more than anything else, just as long as they gave me credit and didn’t try to pass it off as their own.

    This question is also sort of why I mostly use HM for fun or to get rough ideas of what I want for a character. If I wanted to do art that’s “serious” or marketable as-is, I’d draw it myself.

  4. I’ve always had tons of respect for HeroMachine as a program (and thus Jeff as a creator). In fact, I was pretty much shocked when it was announced that the full version of HM2 was shifted from pay to free since it’s more than worth the cost. I always assumed that the agreement was that we owned the characters while Jeff owned the individual parts.

    For me the line between flattered and depressed/angry with someone else doing art with my characters would be whether someone did a concept of mine as fanart or if they attempted to claim it as their own. For years of inability to draw or afford an artist, HeroMachine is a godsend. It would be pretty crushing for someone to come along and just take one of my ideas away with no ability for me to to do anything about it. I know that’s the main thing that’s affected my output on the forums since while I expect most of the forum community to have integrity, I have no clue who else is browsing with ill intent.

  5. Before I throw myself into the debate, I’m awfully interested in what brought this on? Was there some debate in comments on the 2 to 3 contest?

    That said, I think if someone tweaked my own image, which in fact has happened with the co-worker who introduced me to HM (showed me a rotation, color switch, etc), and published it, then said “Original concept by Barb Jackson,” I think I would be okay with it. If it were to make money, naturally I would expect royalties paid to me. Altogether, say, if someone were to take my contest entry of the Turmek Priestess (my most personal character) and make a sci-fi comic out of her, if my name were in the book credits and a percent of revenue of all issues sold were paid to me, I’d be a-okay, and of course buy each issue. Come to think of it, I’d probably be an advisory editor, want to decide what’s okay and what’s not for my character.

  6. Myro, that’s exactly how I see it, well said.

    Although actually, when I do a prize sketch for someone, I assign all the rights to them permanently as part of the prize. So DiCicatriz actually owns that picture. But the general idea is sound.

  7. Ah, Jeff, this is why we all love you. You create a tool with which to express our artistic and creative sides, and you do so w/out trickery or dishonest intentions. God bless you! ^_^

    And anyone who has a problem w/my using that blessing, well…GOD BLESSS YOU TOO!! Bwah ah ah ah ahahahahaha…!!!

  8. For those of us who need a ruler on both sides of the pencil to draw a straight line, HM has been a real treat. The way you presented the way you see it is how I assumed things were.

    I make most of my living from original works (I do audio and video production for a living as well as being a freelance writer) and am pretty protective of my copyrights and by extension the copyrights of others.

    I’ve made a lot of characters with HM including a giant collection of characters from my old Champions days that I still write stories for in my spare time. If I ever get to the point to publish comics, I’ll have a real artist do the drawings using my HM versions as guidelines. If I ever use the HM version for anything, I will fully credit the site with a link here so that people can make there own.

  9. My first thought was that putting together a character in HeroMachine is a bit like collage. I did a little poking around to see how the law affects collage, and could not find a clear answer. I did find that it seems most likely a creation made in HeroMachine would fall under the classification of derivative work, if someone were to go to court about it, and so there may be pertinent points here: http://en.wikipedia.org/wiki/Derivative_work

    As for my personal feeling, I learned the hard way long ago that if I care whether someone were to make something based on something I made, I shouldn’t put it on the Internet. 🙂

  10. (Also I would feel kind of like a jerk if I got upset over someone making a derivative work of my picture when my picture was a derivative work to begin with.)

  11. I totally agree with Jeff, I mean we´re using his personal creations to come out with our own personal creations; we never create anything we just modify and organize what Jeff gave us to express something whatsoever.

    I consider that we´re all artists in our own way and if some other artists that i might respect or even admire use my work as inspiration or reference I would flattered, I would even thank him or her.

  12. I’d take too much bandwidth to explain my exact position on ownership. Just that I use HM for fun not profit. Should someone profit from one of my characters, then I would want compensation.

    It probably doesn’t get any more obfuscating than that.

  13. Nicholas/GtaMythMaster43

    I understand full well what this means.
    But, I copyright all my characters and their respective designs under my “company” name. So could I still post them on DeviantArt or some such art site like this:
    Character/Design (C) Kick U Productions
    Art an illustration (C) Jeff Herbert of UGO’s Heromachine
    Could I do that?

  14. Nicholas/GtaMythMaster43

    Or a better example, GtaMythMaster43-Deviant-Art is the Copyright name assigned to my account.

  15. Me, Myself & I

    Really from my perspective it’s more like a team effort or partnership. None of the images I’ve made with Heromachine would have happened without Jeff. Likewise, none of the images would have happened without my efforts. Without either of us the image wouldn’t exist.

    As far as I’m concerned Jeff can use any of my images in any way he sees fit. The fact of the matter is that I’ve used the images the way I wanted to. as well. The caveat of course is that I’ve always been clear as the the origins of my images and never tried to make a profit on them. Should an opportunity arise to profit from them I would first contact Jeff to discuss a course of action first. Of course now that Heromachine is now under the UGO banner, UGO would also need to be included.

  16. spidercow2010

    Seriously doubt it will ever be pertinent to me. Nevertheless, nice to know.
    Just want to take exception to the phrase “Can’t draw a straight line” as an indicator of a lack of artistic talent. We all know that’s what’s meant, but hey, who can? I have no doubt most artists use a ruler when need be. And there are no straight lines in nature (except maybe crystalline structures).
    On the other hand, it’s said Da Vinci could draw a perfect circle freehand. Thank God for HM Insignias.

  17. spidercow2010

    I’d be interested in the UGO response…

  18. Wow, I didn’t mean to start all of this.

    Let me start my response by giving a little bit of a background on me. I’m an engineer by trade. I grew up with a love of math and science and I have next to nothing in terms of artistic ability. When I say that “I have problems drawing stick figures”, it’s almost close to the truth.

    I do have a bit of geektitude about me and like many other kids growing up watching X-men or Spiderman, I created many characters in my mind but lacked the artistic talent to put them down on paper. It was by chance that I found Heromachine back in 2005, and it was like being a kid in a candy store. In a way, I feel that I am part of Heromachine’s target demographic – people who have no artistic ability, yet have many creative ideas running through their heads.

    This being said, I will only be an intermediate HM3 user at best. I know a couple tricks of the trade, but I will never be at the level of those who constantly win the Character Contests, for a few reasons. One, the awesome creations that make the finalist lists all seem to be created by those who have more knowledge of artistic concepts and rules. I would never in a lifetime have been able to come up with some of the ideas that the “power users” have used in their creations. Secondly, I realize that HM3, like any other tool, becomes easier to use with a lot of practice and experimentation. Sadly, I do not have the time to further develop my HM3 skills, due to real life priorities.

    Basically, the short version of what I just wrote is I’m a geek who can’t draw but is very thankful that Heromachine exists. Otherwise, I would not have been able to create the limited amount of characters I have today.

    Now, getting back to the discussion at hand, I failed to realize the entirety of Jeff’s argument when I posted my coments yesterday. I do agree that Jeff owns the individual pieces of art and I am merely shuffling them around to suit my needs. I also agree that there are bound to be similarities between creations from different users, due to the increasingly large number of people who use the program. This all happens by coincidence.

    To me, HM3 is a medium. And because I cannot create my characters through any other artistic means, I feel strong connections to my creations. Because through Heromachine, they are the closest, if not the best, representations that my creations will ever become.

    When I made my post yesterday, I think I was commenting more about manners than trying to argue about ownership. However, I do not see everyone’s HM creations as being public property, and I believe it would be dishonest for someone to give a take on someone else’s character without their consent. I’m not talking about different characters from different users who look the same, as this is just coincidence as I’ve said before. I’m talking about someone who takes someone’s character and changes it themselves.

    In terms of the contest and the comments made yesterday, Jeff had made a statement that if people had problems coming up with ideas, that they can peruse the Hero Archives. And I made a comment that they should probably ask the creator for permission first. I’m all for people giving different takes on characters as this furthers discussion and promotes creative development. However, I just felt that it would be courteous to ask permission or give a “heads up” to the user whose creation was going to be edited in the contest.

    I feel like I’m rambling a bit now, and I’m not entirely sure my points have come across. So, if any of the above is confusing, please ask and I’ll try my best to explain further. I wasn’t trying to step on Jeff’s or anyone else’s toes with my comments yesterday. So yeah, I think that’s all I have to say.

    San Dimas High School Football Rules!

  19. Z. Daniel Phoenix

    *Shudder*

    I remember in the old Yahoo group about problems with Marvel when CoH was also having problems with them.

    Jeez, how many years ago was THAT.

  20. Nicholas/GtaMythMaster43

    Oh God, that was forever ago….

  21. the way I see it HM is a tool for those of us who might lack the talent to put on paper our Idea,and though it is a fun and usefull tool I can’t really get upset with someone for “stealing” my work on HM anymore then I can sue a guy for useing my pencil to draw something.

    I dont really care if someone “steals” on of my desighn’s if a person likes my desighn and wants to try and mimick it go ahead, I am not getting paid for useing someone else program to creat a character by connecting someone else’s work.

    All I ask is that if someone happens to strick it big useing one of the characters I created at least #1 give me some credit it (maybe a thank you page or something) and #2 Give the owner and creator of HM the props for helping you to utilize the program.

  22. So if someone can’t draw, and they use the machine to concept what they want a character for a comic book to look like, UGO owns the actual look of the character because they own the program used to create it?

  23. Frau10125: No, that’s the exact opposite of what it means. UGO claims no rights over your character concept in any way except as it exists solely within the HeroMachine. You own your character everywhere except inside the program. Any use of even that particular image outside of the program in a way that violates your copyright would be actionable by you.

    So while you can’t prevent anyone else from making the same character inside HeroMachine, you can prevent them from using it in a way that infringes on your copyright. Neither I nor UGO claim (or want) any sort of copyright over anything you create with the program, except to the extent required to make sure that you can’t keep anyone else from using any part of the program, either. You don’t own my program and the images inside it (in aggregate or in pieces), and I don’t own any ideas that you bring into it or take out of it.

  24. Jeff, thank you so much for clearing that up.