Welcome to yet another Furry Friday here on Lawyers & Liquor, where the multicolored menagerie turns the Boozy Barrister into a mad mustelid for one day out of the month in order to discuss a legal issue related to the fandom full of giant critters.  So buckle up the harnesses, shine up the tags on your leashes, and sit down with a dog bowl full of coffee and stay as we dig into the  intellectual property particulars behind one of the finest traditions of furry art: the adoptable character.

And how, at the end of the day, unless certain precautions are being taken by both the artist and the purchaser, the end product is essentially nothing that most people would think it is.

I’m the Boozy Badger, and this is Lawyers & Liquor’s “Furry Friday – Adoptables, How The Fuck Do They Work?”

What’s An Adoptable?

The first question that may be asked, especially for those normal folks out there or lawyers that maybe have recently purchased their first set of cat ears and a tail to wear to the next hearing in hopes of becoming an internet celebrity of sorts, is “What the hell is an adoptable anyhow? I see that term tossed around between the constant bickering of these beautiful bovine bastards on the Twitters.com, but the phrase means nothing to me.  Is it when someone flies to China, undergoes an intensive interview process, and then flies home the legal owner of a fursona that was created and then abandoned there?”

“DID TRUMP JR.’S MEETING WITH THE RUSSIANS HAVE TO DO WITH UNWANTED FURSONAS?”

 The answer is…well…no. If you want to put adoptables into more human and real world terms, we’re not talking about kids that are created and then farmed out to loving homes because their parents can’t, or won’t, take care of them.  Because (1) those children are real and absolutely need loving and caring parents, and it’s a great thing that people out there are more than happy to bring them into their families and raise them; and (2) Adoptables are sort of like some black market human slavery ring if we’re going to go down that route.  See, the purpose of an adoptable, from what I gather, is to be sold.  Sold to the highest bidder from the date of inception, to live the rest of its limited life of ink and shame  being forced into whatever commissioned position the winner of the auction decides to place them in.

It’s a sad, sad life.  

Luckily, it’s also a fictional one.  The serious answer is easier:  Adoptables are characters that are created by artists, and then placed out there for sale.  Unlike a commission, where the artist is using someone else’s character in a piece at the request of the character creator, here the thing being purchased is the right to use the character.  So say someone makes Sammy the Slutty Salamander and draws a very attractive looking image of him.  That artist then advertises Sammy as an “adoptable” and looks to sell him off to the highest bidder.  Barring the furry version of Liam Neeson intercepting the auction, Sammy will then be sold and the purchaser will, likely, receive the posted art.  However, the purchaser will then also receive the right to use Sammy in future works, such as by handing Sammy over to meet Vicki the Voluptuous Vixen in a commissioned comic called something like Peg O My Fart.  I don’t know. You guys get into some kinky shit sometimes, who the hell am I to judge.

In short, an adoptable is a character created by Artist A, who after being purchased can be used by Buyer A in any work they want to get from Artist A or any other artist and could, in theory, consent to allow others to use as well.

This is where you talk law, right?

Yep, this is where I talk law.

As we’ve covered briefly in the past, the creator of a character and the first to place the character into a fixed, tangible form is, by default, the holder of the copyright to the character.  This is why the Disney Company spends large amounts of money rewriting our copyright law on a regular basis to keep that mouse on lockdown in their Orlando-based dungeon complex instead of letting him and his cohorts run free through the creative spaces of the world. I prefer to think of Mickey as a prisoner, not a jailer, in those situations, forced to dance for the evil whims of whoever the board forced to eat slivers of Walt’s preserved heart in an elaborate ritual on It’s a Small World. But I digress.

Only Momma Owns Sammy – The Default Mode of Copyright

So the default, when there is no agreement and speaking in generalities, is that the artist is the holder of the copyright over the character from the moment of creation forward.  The artists, therefore, has the right to demand others not use that specific character (with certain limited exceptions that we ain’t getting into here today) and, likewise, can actually demand that people stop using the character.  So, to steal from our above example, in this situation the default would be the Artist A creates Sammy the Slutty Salamander, and then Buyer A – instead of purchasing Sammy as an adoptable – instead just screenshots that shit and sends it off to Artist B to create the world’s first and greatest salamander/vulpine hot pegging action comic.  If Artist A becomes aware of this, Artist A has every right in the world to demand that the comic be taken down and that Artist B not display or use it in any manner (once again, subject to some general exceptions we ain’t discussing here).

But Sammy Can Be Sold – Physical Possession of Copyrighted Material and Implied Licenses.

Let’s say this isn’t an adoptable for a moment.  Let’s say that you instead of purchasing an adoptable are the owner of a proudly produced piece of furry art.  Maybe you bought it at a charity auction for a bid of $6,969.69 because you’re one of those assholes who can’t resist making the auctioneer sigh.  You have no clue who the characters in it are, or where they’re from, but you own it, and you want to proudly display it in the foyer of your house for others to see.  After you purchase it and frame it, though, the artist then demands that you never display it anywhere someone else can see it because, if others can see the work by coming to your home they may just stick a lawn chair in the living room and stare at it instead of  buying their own print of the same artwork.  Can the artist place such a condition on you after the sale of the piece, when there was no such condition as you purchased it?

The short answer is “No.” 

It’s a weird little intersection of property and intellectual property, because while you own the physical copy of the work, you don’t own the rights to the work on the physical copy.  So in that way the implied license is a way to protect the end-purchaser’s rights to use their physical property, while also protecting the copyright holder’s interest in the intellectual property by limiting the buyer’s rights to only those that are normal and typical instances related to private ownership of the copy. When you purchase a physical copy of a copyrighted work, you are purchasing something called an implied license to use and display the work in a manner consistent with private and personal use.  That means that Disney can’t sue you for having ten friends over to watch Zootopia, even though those ten friends may themselves not buy a copy because they can see it at your house.  Display in a private residence for a small group of friends is so common that it is an expected part of personal usage of the property you’ve bought, and therefore falls within the implied license.

And the implied license is limited.  Very limited.  Ten friends at a viewing party held in your home? Probably fine.  But remove the viewing party from your messy living room and put it in a panel room at a convention, and you’ve now gone from private display of the work to friends, a normal and incidental part of private ownership of the physical copy, and moved into the territory of a public exhibition which is not a normal and incidental part of private ownership.  So, to bring it back to the artwork, you could display is in your home without the artist saying shit…but the artist could, conceivably, tell you that you aren’t allowed to scan in and then place that same artwork on your FurAffinity page as that is closer to public display!

“But Boozy, this commissioned piece I bought is on my FurAffinity page! Am I breaking the law?” is a question I’m sure someone will send, so let me address it here: probably not, but who the fuck knows? When determining the extent of the implied license that comes with purchasing a physical (or digital) copy of a copyrighted work,  as the author of this article points out, a court looks to the normal and natural manner in which the purchaser of a certain type of work could be expected to use it.  So, if such display is within the “normal and natural” expected uses of the work as an incident of private ownership of it, then yeah, that would be fine.  However, it’s worth noting that this is a court analysis and not a common sense analysis.  It doesn’t matter that you say “Everyone’s doing it!” if the court looks at the nature of the physical property and then says “What everyone is doing doesn’t fucking matter.”

But Adoptables Aren’t Physical Copies Of Works.

The main reason we even talked about that shit was to understand why it doesn’t necessarily apply to the purchase of an adoptable character.  As we stated above, the implied license comes into play definitively when we’re talking about physical copies of things that contain intellectual property: books, CD’s, DVDs, etc.  But an adoptable isn’t a physical copy of the intellectual property.  An adoptable is a right to use the character created by another person in any way that they want moving forward (unless the artist has created some restrictions).  Which means that there is not an implied license in relation to the adoptable that someone purchases…but there is a license there.

A license in this sense is, simply, the right to use something.  In this case, it’s the right to use the character, and that’s what someone is purchasing.  A license.  And it’s important to note that a license is not the same thing as ownership, because in a license situation the purchaser of the license is obtaining absolutely no ownership of the underlying licensed work.  They are merely purchasing the right to use the copyrighted work subject to limitations of the artist and the terms of the purchase.  So, for instance, if the artist says “You cannot use this character in NSFW commissions or art,” that’s a term of the license that you, as the buyer, cannot violate without running the risk of revocation – in essence, Sammy the Not-So-Slutty Salamander can be wrenched away from your bodily-fluid stained fingers and rehomed as you’ve violated the license.

“But I paid for it!”

And if you didn’t negotiate for an irrevocable license with clearly set out terms under which the artist could and could not revoke the license, you got what you bought – the right to use the adoptable character for so long as the artist was willing to allow you to do so.  Because the default license term, when there’s no writing to back it up, is a revocable-at-will, non-exclusive license to use the character.  While this default can be changed through negotiation and agreement and/or terms and conditions related to what you, the purchaser, are getting and what the artist is giving you in return, that is the basic default which remains unaltered.  And the only way to plead the case that the artist said Sammy getting rammed by a Feral Hardwere strap-on in comics is fine is to take this matter before the courts and argue a parol (oral) contract case related to the extent of the license agreement you made with the artist.  

Which is likely cost prohibitive for the majority of people who are spending their money on placing adoptable characters in those sorts of situations.

See how that works?

Also, I should point out…without terms defining the scope of the artist’s ability to revoke, a revocable-at-will license is exactly what it sounds like.  The artist can revoke the right to use the character whenever they fucking want unless they agree to certain limitations in the negotiation and purchase.  While this doesn’t necessarily have to be in writing, it’s a hell of a lot easier to prove when it is, though.  So, you know, join a group the artist doesn’t agree with and have no terms on the adoptable revocation of rights that limit it?  Feasibly the artist could send you an email terminating your license to use the same.

…Did you say “non-exclusive” up there?

Oh, yes, I sure as hell did.  See, much like the default license condition is “revocable at will,” the default license for who the artist can sell to after you is “non-exclusive.”  That means an artist has the absolute right to take the adoptable you just bought and then turn around and sell it to someone else, granting both of you the license to use the character in any way they want (subject to any other terms and restrictions there may have been in the agreement).  So, while you may think you’re getting the rights to have a brand new, one of a kind character, what you may be buying is the online furry equivalent of that clone army from the Star Wars prequels.  

An entire army of horny salamanders.

…This is either a nightmare or a dream come true, depending on where you stand.

Writings are key in Copyright.

The only way to prevent this is to do one of two things: purchase not a license but rather the actual copyright to the adoptable character, or purchase an exclusive license to the character from the artist (one that prevents the artist from reselling the license to another person ).  And both of these must be in writing pursuant to 17 U.S.C. 201(d), which restricts the transfer of the ownership of a copyright itself or the granting of an exclusive license in the copyrighted material to only cases where there is a written agreement for such a transfer or exclusive license.  In other words, no written document, no transfer or exclusivity.

  But even then, there are benefits and pitfalls for both sides on that.

First, transfer of a copyright deprives the artist of any control over a character that they created and that their names will be tied to into perpetuity.  Say the artist sells the adoptable as a copyright transfer, which someone then incorporates into their presence such that the character becomes synonymous with the buyer.  Then that buyer is convicted of…oh…let’s say raping animals.  Now the artist is forever linked to the action of the buyer because the artist created the character, but has no rights to revoke the transfer or limit the use because the artist completely transferred their ownership.

Likewise, an exclusive license does not address the fact that, in theory, the artist could revoke the license at any point if that is not addressed in the written agreement, even if the reason given is “I don’t like what you said about the President.”  So, without a carefully negotiated writing, it may prevent the reselling of clone characters, but not the issue of when your license can be terminated. 

So What Are You REALLY Buying?

If you buy an adoptable, then, with the exception of a written agreement, what you are actually buying is, at the most, a non-exclusive, revocable license to use a character whose copyright is owned by another in other media.  You are not buying the character, just the right to use the character, and you’re not even buying that into perpetuity and to the exclusion of all others.  You are buying, in essence, a right to use the character not the right to use the character.

The character you are purchasing, outside of a written agreement with the creator, can be resold to others.  The right to use it, outside of a negotiated (and provable) irrevocability term, can by default be retracted at any time.  And your recourse would be…well…approximately zero, because you got what you paid for: and indeterminate, non-exclusive, revocable license to use a character for so long as the creator decided you could use it.

Please, artists, put down the pitchforks though.  Because I’m not even going to suggest people start demanding 20 page contracts for every adoptable – though, wearing my lawyer hat, let me say that is the only way to sufficiently and certainly protect your interests in the character that you’re buying.  Instead, let’s just recognize, now that the legal talking is all about done, the basic truth:

It just doesn’t make sense to pay for these writings in most cases.

The majority of adoptable characters out there are selling for small amounts of money (relatively), and the cost of drafting carefully negotiated writings that spell out the benefits and burdens, the questions of exclusivity, and the questions of revocability of the license are simply, in proportion to the benefit paid, onerous.  It makes no fiscal sense for the majority of artists and buyers to insist upon a written contract for a $50.00 adoptable purchase, especially when the cost of such an agreement can easily run into the hundreds of dollars if not thousands depending on the attorney.  And that hearkens back to another matter entirely, which is our current intellectual property law and the ability to transfer rights is not written with small creators in mind.  It is written with profitable properties in mind and the ability to sell it off to others for a substantial price.  To rework the current system of adoptables to match that would be cost prohibitive and increase the market cost of the end product to an unreasonable degree.

Maybe…maybe…for a large creator that does this work regularly it may make sense to dictate certain terms to an attorney and have a form agreement drawn up and sent to people who are purchasing adoptable characters, but maybe it wouldn’t as well.  It all depends.

Wrapping It Up.

That’s what so much of the law comes down to, really.  “It all depends.”  Do you trust the artist not to revoke your license?  Do you trust the artist not to resell the character to someone else and respect the expectation of exclusivity?  Do artists trust their buyers not to abuse the creations?  The way it currently operates is a system built on trust, and that’s not necessarily a bad thing.  And I know, maybe people will get pissed at this and insist I’m trying to kill their business but….I mean…Suck it up, Buttercup.  I’m not here to make you money, I’m here to drop a little legal knowledge about general subjects and I believe it’s important people know exactly what they’re buying when they buy things.

And that artists know exactly what they’re giving up when they give up things.

But, at the same time, like I said, the important aspect of this is trust.  Because if you get a reputation for selling adoptables and then reselling or revoking them for no reason, while you may be within your legal rights to do so, ain’t nobody gonna buy from you again.

So I guess this is one case where a community may actually be better than the law at producing the desired result.  Huh.

And that will wrap up the Furry Friday for this month!  Now, get thee back to thy kennels, as I have work to do.  Until next time, I remain:

-BB(adger)