Copyright question

Sorry if this has been asked before but I need answers. Regarding my boardgame. I need to know if Slenderman the character is copy written. Like does Victor Surge own his rights in a way. I understand the mythos is somewhat public domain but is the character? I'll be talking to a person on Monday about legal issues and such for publishing a kickstarter and such. Please let me know. Anywhere I've searched on google was just talking about the story.

Right here on his deviantArt account. right under "deviantID", that seems to be his stance on this kind of thing.

BananaBrains wrote:

Right here on his deviantArt account. right under "deviantID", that seems to be his stance on this kind of thing.

So am I good? Cause if this will be sold in stores or online I feel he should be getting some of the money due to the fact he is the original creator.

It says out in the open that if you intend to sell it you can't do it. No idea if that's a legal statement though.

Cougar Draven wrote:

It says out in the open that if you intend to sell it you can't do it. No idea if that's a legal statement though.

But, Marbel Hornets does sell their DVD's right? And they have Slenderman appearances numerous amounts of times in the entries.

Yeah, it looks to me like it says he doesn't give anyone permission to make any kind of profit off the idea, including movies. I don't know if it's really a legal statement either but it feels like it would be in poor taste to go ahead with it anyways.

They get around it quite deftly by never using the word "Slenderman" in their videos. Technically, their bad guy is "the Operator".

Again, I'm unsure how much legal weight Victor's statement even has. Hell, a good enough lawyer would point out that it actually says nothing, because it's syntactically incorrect.

Being completely technical, the only thing that you don't have permission to do is write stories for Slender Man. The character itself technically isn't covered by that statement, so you could argue that using the image for a boardgame, especially one that has basically no real story, is perfectly within your rights. Maybe.

BananaBrains wrote:

Right here on his deviantArt account. right under "deviantID", that seems to be his stance on this kind of thing.

Surge has a deviant art acount? I'll be right back I need to go be amazed at everything he makes and praise the ground he walks on.

As for OP, You could always try talking to him on deviant and asking him. You might be able to get away with changing slendys name and not using images from any slenderman media that you didn't make.

I wrote an ebook about Slender Man (a long short story, about 18,000 words) and put it up on Amazon and Smashwords.

I thought it was OK in terms of copyright because a) there are so many other Slender Man things already out there, 2) the Slender Man was developed collaboratively on a public forum, and iii) the overwhelming majority of the work in my ebook is my own creation - I'm pretty sure that the only thing that I've used that could be copyrighted is the name.

(You might argue that the description of the Slender Man is copyrighted as well, but the way I describe my Slender Man is just as "tall and thin", and I'm pretty sure you couldn't claim copyright on "a tall, thin being".)

I don't know enough about copyright to be sure, though, so I'd be interested if anyone can provide any guidance...

I would think some kind of acknowledgement to the creator would be appropriate if you want to Go There.

Cougar Draven wrote:

They get around it quite deftly by never using the word "Slenderman" in their videos. Technically, their bad guy is "the Operator".

HA, seriously? Like, is that the actual reason?

I thought people were being all "yeah, he totes goes by many names throughout history and shit?" for creative purposes. If it's just to stiff Victor Surge then I feel kinda bad but will still totally do it.

So in other words, Slendy's mostly open-source, but not if you're going to profit off him. So basically, he's share-alike?

First, I am not a lawyer and this isn't legal advice. Just some observations reading through a lawyers blog about copyright issues.

Fotzepolitic wrote:

I would think some kind of acknowledgement to the creator would be appropriate if you want to Go There.

Cougar Draven wrote:

They get around it quite deftly by never using the word "Slenderman" in their videos. Technically, their bad guy is "the Operator".

HA, seriously? Like, is that the actual reason?

I thought people were being all "yeah, he totes goes by many names throughout history and shit?" for creative purposes. If it's just to stiff Victor Surge then I feel kinda bad but will still totally do it.

First question in the thread, is Slenderman copyrighted. Of course he is. Unless he isn't. So when it comes to character copyright it gets really tricky, a character is the totality of character, appearance, actions, history, all of that. Name's are important but they aren't the only thing that a court would look at. And courts tend to be pretty forgiving in granting copyright but it tends to only be for 'creative' expression. One important thing that isn't copyrightable are 'common' charactertistics.
Okay, where does that leave us. If I remember right, Victor called his monster 'Slender Man' or 'Monster 2.0' I think is on some of the images. The monster was in a suit and was a little tall, there was the association with children disappearing. That was pretty much the character. Given the abundance of these characteristics in the general populace I think a court would be hard pressed to award protected status to all depictions of that character in a book or work.

If your character is 'Tall humanlike monster that takes children and loves tea and dances with moths and also was at the battle of Waterloo and makes swords on the weekend" it would be hard to make the case that this character infringes on Slender Man because it's more than just a suite wearing child-grabber. The only elements in common would be the suit (how many men wear suits), tall, thin, takes children. If you never call the character "Slender Man" you might see a resemblance but saying its the same character is quite a reach. A capricious court might say that the suit, being tall, and taking children is enough to grant copyright then those elements would be protected but the rest of the creativity would remain copyrighted to the newer author. Yep, a character can be partially copywritten, just look at Gaiman and Mcfarlane fighting over the Cogliostro character.

The more distinct a character is, the more likely it is that you can claim copyright. Who could probably make the best copyright claims in the slenderverse? Probably the Marble Hornets guys, Slender Man has a face (or changing features), the Operator doesn't, almost every version of "Slendy" is faceless. The operator symbol infests hundreds of vlogs and blogs, and hell I think its in Hylo or Entity.

DarkShadows wrote:

So in other words, Slendy's mostly open-source, but not if you're going to profit off him. So basically, he's share-alike?

Nope, he's copyrighted by hundreds of people, each unique addition could be argued as a new character and a mishmash of debate on whether a certain set of characteristics are unique enough to be copyrightable.

The Marble Hornets guys understood this and thats why they say the Operator isn't Slender Man, because he's not. There are now 'slenderman' media just like there are 'vampire' media, the slenderverse has become a 'setting' essentially. And slenderman is well on his way to being an archetype.

So is "Slender Man" copyrighted? Yes. Could you photoshop new pictures featuing "Slender Man", sure. And Sell it, Yes. And not get sued, sure if Victor is feeling nice, if not could you win in court? unlikely. Could you make a vlog about "The Operator" and have a faceless guy in a suit and win in court? Unlikely.
Could you write a book about a tall monster in a suit with no face and win in court? Probably, if it was never named "Slender Man".
Could you make a game taking the pictures from Victors images and win in court? Nope.
Could you make a game with a different name and original art that had a faceless guy in a suit? Probably so.
Realistically, would Victor be able to sue you. Sure, you can always sue.
Would a court grant him copyright on a character that was tall, in a suit, and a monster? Not very likely.
What if it was called "Slender Man"? Then it probably would.
Would a court grant copyright to different media (books, video games, audio recordings, ect)? Eh, it might but changing the media adds creative components. It's why the movie character Harry Potter isn't the same as the book character Harry Potter, different sets of rights depending on the totality of the character (name, description, appearance, shape (for 3d stuff), sound (movies and audio recordings), smell (uh, smellovision? would slenderman have a smell?)). It's also why crossover movies are so hard even if the underlying character is the same, like Marvel characters appearing in different studio's movies. Even the same Marvel characters together in the comics might never be in the same movie because different studio's own the movie versions.
Is it worth it to sue? Probably not, unless there's millions at stake and Victor or the Marble Hornets guys (or whoever) feels that they have a defensible copyrightable character.

Art is always inspired by previous art, and courts are staffed with people. Slenderman is becomming a genre, specifially a type of urban fantasy. Like vampires and werewolves it had become a feel for a certain kind of story. Is it ripping Victor off to profit from the genre? In my opinion it isn't if you are adding uniqueness and not just taking his images and calling them your own.
Should you give him props for starting it? Sure.
Is it a good idea legally? Debatable, I guess it would come down to how you worded it.

Oh and if Victor does want to lock down Slendy he needs to start sueing the bejesus of of Marble Hornets, Hylo, Entity and everyone else. The more media that use the basic 'Tall man in a suit' monster, the closer to 'common' it becomes. Not as bad as Trademarks though. It seems like he mainly wants to be able to have the name "Slender Man" reserved for his use in official media, but hey, I'm not in his head.

Actually, this issue just came up on UF, and the simple answer was this: Is the Slender Man copyrighted? Fuck no, because that would be a ludicrous concept. The original images are copyrighted, and the Marble Hornets videos are likewise copyrighted, since they are original material, and directly lifting from said original material is a major no-no. However, the Slender Man as a character cannot be copyrighted. However, there could be an issue of trademarking, and as far as I've been given to understand, there isn't any trademark involved, because it would have to be aggressively defended, which is something I assume Victor is unwilling to do.

tl;dr: Copyright no, trademark also no. As long as you're not making money you don't even have to ask permission.

Cougar Draven wrote:

Actually, this issue just came up on UF, and the simple answer was this: Is the Slender Man copyrighted? Fuck no, because that would be a ludicrous concept.

I find software patents to be a ludicris concept but they still exist.

Quote :

tl;dr: Copyright no, trademark also no. As long as you're not making money you don't even have to ask permission.

I'd mostly agree, it'd be a stretch to consider a tall faceless man as a copyrightable character, throw in the name "Slender Man" and I think it gets a little closer to copyrightable but consider this :
"Some courts have adopted a “character delineation” test to help them decide whether fictional characters deserve copyright protection. This test analyzes whether a fictional character is developed specifically enough to warrant protection of the character as copyrightable expression or instead, does the character’s description only describe a character type that it is nothing but an idea and thus undeserving of copyright protection. As one commentator has stated, “[f]ully realized characters in literature are little different than fully defined personalities in daily life. … A literary character can be said to have a distinctive personality, and thus to be protectable, when it has been delineated to the point at which its behavior is relatively predictable so that when placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising.”"
And a little later :
"Other courts have adopted what is referred to as the “story being told” test. Some courts use this test by itself or sometimes in conjunction with the character delineation test when analyzing whether a fictional character deserves copyright protection. The story being told test was first used when a court determined that Dashiell Hammett’s character, Sam Spade, in the novel The Maltese Falcon was not entitled to copyright protection. The court stated that the character Sam Spade was merely a vehicle for telling the story, rather than an essential part of the story itself, and therefore Sam Spade as a fictional character could not be protected under the copyright law. (7) For those of us who have read The Maltese Falcon and intimately know Sam Spade, this result reveals how difficult it may be to develop a fictional character so that a court will not merely view the fictional character only as the vehicle for telling a story."
And the coup de grace:
"There is one exception to the substantial similarity analysis that is particularly relevant to fictional characters. This exception is known as the scènes à faire doctrine that prohibits a court from protecting material that is standard or common to a particular subject or topic. Thus a stereotyped fictional character, unless one copied the “exact” word portrait of that character, is not likely to be copyright protected. For example, it is unlikely that a court would find that an alleged infringer had infringed a mystery novel’s main character just because both smoked a cigar and spoke with a New York accent. In this instance the court would probably conclude that the fictional character’s characteristics of “smoking a cigar” and speaking with a “New York accent” were standard or common to the mystery genre."

This is all from a lawyers blog analyising character copyright : http://www.publaw.com/article/protection-of-fictional-characters/

So, if you have a tall, slender, suited, faceless man and can point to hundreds of blogs/vlogs that use that archetype as a storytelling vehicle, it would seem pretty hard to argue that someone that calls thier version "The Operator" and has a distinct history would be infringing on a character from a different medium (graphics) unless you ripped of the exact text and maybe said 'Yep its the same guy as Victor's suited guy Slender Man" And lets face it, slenderman in the vast majority of fiction in the 'slenderman mythos' is there to be the unstoppable bad guy that does or causes horrible things. He's sort of Urban Fanatasy personified, modern, fairly close to reality, more or less low key most of the time.

If the general idea of slenderman isn't copyrightable, never knowing for sure until a court rules of course, and since theres no trademark, the issue of permission is technically moot. From a legal standpoint, no copyright and no trademark means it doesn't matter what anyone thinks you should do, if you want to use it and make money, you can.

Slender Man is actually trademarked I found :
Word Mark SLENDER MAN
Goods and Services IC 025. US 022 039. G & S: one-piece costumes used for comedic, theatrical, performance, masquerade and similar dramatic purposes; fancy dress
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 85715555
Filing Date August 29, 2012
Current Basis 1B
Original Filing Basis 1B
Owner (APPLICANT) AFG Media Ltd. CORPORATION UNITED KINGDOM 8a Hall Crescent Gullane East Lothian UNITED KINGDOM EH312HA
Attorney of Record Kimberly Gambrel
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator LIVE

So yea, don't go making any one peice costumes and calling them Slender Man I guess.

An interesting bit to add to this thread:

At the beginning of the Marble Hornets Season 1 DVD, this appears:



I'm not sure what that says about copyrights on Slender Man. Thoughts?

Basically it says that they see their work as being covered by copyright (the work itself is of course) and that Slenderman is known to them. Technically that's what it means.

It would be pretty hard to defend copyright of the character anyhow, given that a lot of what makes slender man so great is that he was created as a sort of mish mash of unsettling elements taken from various pop culture monsters.

Well it seems other people covered the details of everything I was going to say. This issue pops up a lot, and the answer is always: Whatever Victor Surge may say, his legal basis for ownership of the Slender Man is pretty shaky, and unlikely to hold up in court.

Even ignoring that, it's damn near impossible to get in touch with him anymore. I tried several months back, and have yet to receive a reply. As far as I can tell, he's no longer involved with the Mythos at all.

There has been a lot of Slenderverse media created, some of it commercial, and Victor Surge has made no effort from what I can see to defend his copyright, so it'd be very very hard for him to get a court to agree that it was still his intellectual property. With copyright law, the onus is on the copyright holder to aggressively defend their claim. tbh they're not even allowed to say that you can infringe on their copyright for private or non-profit use.

This is why all fanfiction is incredibly precarious territory, since no fanfiction writers have the money to last through a trial to establish real precedent.

Alder wrote:

There has been a lot of Slenderverse media created, some of it commercial, and Victor Surge has made no effort from what I can see to defend his copyright, so it'd be very very hard for him to get a court to agree that it was still his intellectual property. With copyright law, the onus is on the copyright holder to aggressively defend their claim. tbh they're not even allowed to say that you can infringe on their copyright for private or non-profit use.

Well, copyright isn't quite like trademark, you can techinically ignore violations of copyright without it diluting their copyright in any way and there are ways to let people exploit your copyrights in ways that would otherwise be violations, that's the entire point behind licensing agreements, you sign a contract that lets people use your copyrighted work and legally say you can't sue them for it. But it is correct to say you can't tell them its okay to infringe, you might say you probably won't procescute but its still a risk. Anyone that gets the copyright in the future might decide to sue.

The previous posts do make a good point, the copyright claim for the character would be pretty hard to defend given its genesis and nature unless you are ripping off Victor's work directly (copying the images in a visual format, takeing the paragraph of so that he wrote and using it verbatim).

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This is why all fanfiction is incredibly precarious territory, since no fanfiction writers have the money to last through a trial to establish real precedent.

Exactly. Anne Rice is pretty notorious for hating fan fiction and she's sic'ed the lawyers on people before. And really you don't even need to establish precedent for fanfiction, just look at the body of law for character copyright since that's what you'll be up against. Of course if you change the names and circumstances for the characters you end up with all the AU stuff, I'm looking at you Fifty Shades of Grey. And then you are just relying on people to make the connection themselves which tons of art does.

sethlapod555 wrote:

At the beginning of the Marble Hornets Season 1 DVD, this appears:



I'm not sure what that says about copyrights on Slender Man. Thoughts?

Well first of all, it made me giggle. All copyright messages should come with a warning that Tall and Faceless will end you if you copy them. Followed by corrupted footage and creepy video files from ToTheArk chiding you about copying the DVD ending up on your computer should you try anyway. You do have to admit, fear is a powerful motivator...

Second of all, it's probably just an anti-piracy message, actually, saying "Hey, please don't pirate our hard work and torrent it across the inter-tubes, because we worked hard on this and as amateur film-makers, we actually do need the money from the DVD sales. Plus if you really wanna see the series for free it's on Youtube anyway..."

Third of all, notice that although they call Slendy "the Operator" in-series, they call him "Slenderman" here. That seems to indicate that whatever agreement they had with Surge on not actually calling Slenderman that has either expired (making "the Operator" a legacy name kept for the sake of consistency in-universe) or that Surge just stopped returning their calls in regards to whether or not they could actually use that name for a profit, indicating that Surge has probably disconnected from the Mythos entirely, thus pretty much forfeiting his copyright on the character - not only have Mythos adaptations been made for profit before without Surge saying a word (as has been pointed out), but the character has evolved and changed so much from Surge's original idea that it can no longer be said to even be the same exact character that he created. Literally, all Surge gave his Slendy was the basic appearance, the creepy traits, and the child-kidnapping. Everything else was created pretty much in that SomethingAwful forum thread Slendy was born in, on the /x/ and Unfiction forums to which it spread, or by Mythos fans who wrote blogs and started vlogs.

I agree with what Shadow is saying, but have they ever actually called him the Operator in universe?

Not from what I know, Etreo, but I know the creators do call him that out-of-universe, like in interviews and discussion and stuff. Which is why it's so puzzling that they'd call him "Slenderman" on the anti-piracy warning.

Though I think it would have been funnier if they copied that one anti-piracy PSA:

DarkShadows' twisted head canon wrote:

"You wouldn't steal a video camera and walk around in the woods with it. You wouldn't steal a creepy mask, put it on, and stalk your friends. You wouldn't steal the Slenderman, although if you ever do, can you tell us how you managed to capture it in the first place? PIRACY. IS. STEALING. Paid for by Proxies Against Piracy (PAP) "