S'mon said:
I don't think you know too much about copyright law. I had The Incredible Hulk in my D&D game once. You think Stan Lee can sue me?
The harm is de minimis, so probably not. Your version of the character is clearly derived from the copyrighted original, though. Now, perhaps your use was a fair one:
It was non-commercial, and it had no negative effect on the use of the original. OTOH, you were (presumably) using the entire character, though probably not the entirety of any one story. Fair use is a matter for factual determinations, though, so without more information, ...
Now, if you were playing Marvel Super Heroes, I would assume a perpetual license for that use was implied by the nature of the sale of an RPG including the character.
S'mon said:
Edit: Also you ignore the implied license that is necessary for a D&D game to function.
There is certainly an implied license, for the GM to include the character in the story. There is also (I would argue) an explicit license for the player to use elements of the GM's world in the character creation. (This arises from the GM saying, "Create a character for {my world}".)
S'mon said:
If I create a PC for GM X's game, yes I probably retain the copyright in the copyrightable aspects of that PC ...
The character is clearly not a work for hire in the general sense (unless the player has a very interesting deal with the DM
. I suppose you could claim that the character is work by an independent contractor "specially ordered or commissioned for use as a contribution to a collective work", but it's still not a work for hire unless "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." In fewer words, I agree.
Now, the purely game-rule portions of the character, like game designs themselves, might well not be copyrightable, (I think they are not, FWIW), but those aren't the elements under discussion. I don't think anyone has a particular problem with creating a replacement character with the same stats and items. The problem is precisely those elements of the character that represent the creativity of the player; that is, "the copyrightable aspects of that PC".
S'mon said:
... (though note copyright has a fixation requirement, so those may be minimal, basically the character sheet).
Copyright also attaches to any derivative work, though, which means that more than just the actual character sheet and any direct copies is affected by the copyright. I assert that a performance derived from the copyrighted portions of the character is exactly such a derivative work and is thus covered by copyright. Not being a lawyer (as previously noted), I don't have cites to the case law of, say, screen plays based on an in-copyright book. I take the fact that Paramount writes checks to be a strong indicator of the existing law, though. They are not noted for their tremendous generosity in matters of IP.
S'mon said:
But when I play that PC in a GM's game I'm authorising them to use that PC. I don't see any reason to think that license is revokable unilaterally by the player, unless that's how the group normally operates.
I don't see any reason to think that the license is perpetual, unless there's some indication that that has been agreed to. Why do you think there is a preference for perpetual rather than limited-use implied licensure? Unlike the case of a character sold as a part of a game or supplement, I see this implied license as only lasting for the life of the association.
To the extent that there is an implicit contract, I would assume that the drawer of that contract would be assumed to be the GM (as creator of the game and organizer of the event in most cases), and thus any unclear clause would be construed in favor of the player as the non-drawing party.
S'mon said:
Edit 2: Yes I teach copyright law.
I'm not a
complete ignoramus as regards copyright.