Can they do this? Painting copyrighted comicbook characters and selling on ebay

[Scarlett67]

*Originally posted by SkipMagic *
But the person is selling it, period. Therein lies the problem; once he/she attempts to make a profit off of it, the whole shebang becomes illegal.

This is a common myth (see #2) about copyright infringement. Profit has nothing to do with it. Once you have reproduced someone else’s copyrighted material, you have violated the law.

[middleman]

KaltThe concept of Mickey is NEVER in danger. TMs can be extended in perpetuity. So, Mickey Mouse is NEVER in danger of falling into the public domain like say Sherlock Holmes.

What you are talking about is the copyright on existing works. The best example is, if the copyright extensions were not granted, Steamboat Willie (the first MM cartoon with sound) would be in the public domain.

This would mean that Fox, Warner Bros, and Kalt Industries could reproduce STEAMBOAT WILLIE as it was presented. They could NOT, however, produce ORIGINAL works featuring the Mouse. They could only RE-produce works that had fallen into the public domain. So while, they could reproduce S.Willie, they dare not try to sell a copy of the Lion King. Its copyright protection is FAR from expired.

So the argument that Disney is trying to keep their characters from the public domain has NOTHING to do with copyright extensions and the Bono Act. Characters are protected by TMs. Content is protected by copyrights.

So, if that drawing on eBay was of a PARTICULAR work of Ed McGuiness (like say it was a DIRECT swipe from Action Comics #700), then there COULD be both a TM issue (certainly there is) AND a copyright issue (as they are reproducing an existing work)

Now I am not certain on the second one. IP is not my field. Does the fact that it is a NEW artist interpretation change the fact.

I seem to remember a case in Art law (hot chicks from the college of art audited it, so I took it!) suggesting that if you go and paint the same mountain from the EXACT same position as a famous artist that it was NOT a copyright issue, but if you use the actual painting as a reference model, then it is (I would also imagine there are TM issues in that case if applicable).

But I am not sure on this. I invite correction.

[Little_Nemo]

I’m just amazed someone paid $420 for a painting of Batman and Superman.

[SkipMagic]

*Originally posted by Scarlett67 *
**This is a common myth (see #2) about copyright infringement. Profit has nothing to do with it. Once you have reproduced someone else’s copyrighted material, you have violated the law. **

Actually, Scarlett67, I use to visit that site quite a bit a few years back. (Back when it was still just 10 rules, and no references were made to the DCMA.) But working in my part-time job as copying center employee, I’ve gotten so stuck on the only bastardized line that the majority of our customers tend to accept, that I repeated it here without considering that I was being a little skimpy with the details. In other words: mea culpa.

Of course, with the Fair Use section of the U.S. Copyright law, simply reproducing another’s work doesn’t necessarily violate the law every single time. For those of you who want to go to an excellent, government-funded/run source, I’d suggest that you visit here.

I think what a lot of people get confused about are Section 107, #1, and Section 108 which read:

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

And…

108. Limitations on exclusive rights: Reproduction by libraries and archives

(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and ©, or to distribute such copy or phonorecord, under the conditions specified by this section, if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;…

I think people tend to see “nonprofit” and “…without any purpose of direct or indirect commercial advantage…” and immediately jump on those as basis for their copyright violations. They ignore what else the other sections and subsections say, but, you know, whatever fits their needs, so to speak.

[Exapno_Mapcase]

watsonwil keeps providing good solid information in this thread. You should come over to GQ to help settle the million times this question comes up over there.

even sven, my language was imprecise. I meant that in this case the artist has no cause to challenge, because the violation is clear. The artist can challenge, and then after a fair trail will deserve whatever civil penalties are administered.

Lawyers do sometimes get heavy-handed about cease and desist letters, but very few ethical ones send them out when there is no cause. And there is enough cause to keep batteries of lawyers busy without needing to generate extra work for themselves. The reality is that trademark violations are legion because, as this thread shows, most people just don’t understand trademark law. Or copyright law for that matter.

[Skywatcher]

I was going to post this earlier but, you know…

*Originally posted by JThunder *
**No, you can’t use Mickey and the Disney characters due to trademark laws, not copyright laws.

Tangible forms of expression, such as movies, stories and pieces of artwork, can be copyrighted. The suitably distinctive characters, logos, and identifying names, however, are trademarked. There’s a difference. See this article for more info. **

I would but you have a bad link there.

I also think you’ve forgotten something. Comic books and comic strips are considered to be pieces of artwork and are copyrighted as such. The copyright violation comes in when someone runs off copies from a comic strip or comic book panel. You know all those “Peeing Calvin” stickers? Those fall under copyright protection, not trademark. The same applies to comic strip & comic book forms of cartoon characters such as Mickey Mouse and Batman.

This post brought to you by your friendly neighborhood Patent & Trademark Office employee.

[Spiny_Norman]

Anecdote for the copyright lawyers ahead:

There’s a Swedish comic strip called (in its Danish translation) “Arne And”, incidentally featuring a duck that looks very much like a certain “Anders And”, the local name for “Donald Duck”.

Arne, however, is not a good role model for the kiddies. He’s unemployed, pretends to be a poet/writer (especially around women), swears like a Russian sailor, reads porn, drinks way too much and has - well, tries very hard to have - sex. (All crude content aside: As comic strips go, this is acually pretty sophisticated and very, very grim satire. Arne is a highly political duck. He is also responsible for bon mots like “Thinking before you talk is like wiping before you crap.”)

Obviously, Disney’s lawyers moved in with guns ablazing. The artist had to change the looks of Arne, and he did so by redesigning his beak - and having Arne complain bitterly in the strip. The lawyers withdrew. And in the next week’s strip, Arne entered a novelty store and bought a tie-on Donald Duck beak (keeping the invoice for tax purposes). As the strip said: “Whenever Disney’s lawyers showed up, he could just lift his false beak and see them scatter.”

So Arne still looks pretty much like Donald Duck, except that every frame shows clearly that his beak is attached with a knotted rubber band. The drawings, in other words, depict a duck that looks completely unlike Donald except for a pathetic disguise.

Apparently, the Disney lawyers have a feeling that most Scandinavian judges will see the humorous side of that evasive maneuver, because Arne is still freely printed.

[Rusalka]

oh that is hilarious, Spiny!

So let me get this straight, I can draw a comic strip which includes Batman and Superman, with an original story and my own artwork, and then sell it without violating any laws? Does that mean I can make a Superman movie without paying anyone any royalties as long as the story is my own?

Does Copyright protect the characters or idea of Superman and Batman or just prevent you from copying already published work?

I always thought a Trademark was to protect a symbol of a corporate entity, not a product.

I feel like my original question isn’t answered yet definitively. If it’s legal why aren’t the stores inundated with knock-off comic books?

[Exapno_Mapcase]

Because it is absolutely not legal. Characters can be trademarked.

The courts have been clear that characters can be protected, although they have been somewhat imprecise over whether this protection stems from copyright or trademark or both.

Superman – Trademark and Unfair Competition gives a history of post-WWII character protection and its transition from mostly relying on copyright to mostly relying on trademark. It concludes that:

Superman is an ideal trademarked character under current law.

Why is Superman ideal? As Protection of Graphic Characters, by Lloyd Rich states, there’s more to trademark than a mere character image:

Trademark law will not permit a graphic character to be trademarked solely for its own protection, however, it does permit the character’s name and likeness to be trademarked when the function of that trademark is to indicate the source of the products and services bearing that mark.

Superman and Batman and Spiderman and all the other famous ones are brand names that function as lines of goods. A villain that shows up for a single issue may not deserve trademark protection, although it may come under copyright.

Because the law changes constantly and copyright is making a comeback:

During the past twenty years character owners have been successful in extending protection for their increasingly valuable properties. Starting with a series of cases in the previously restrictive Ninth Circuit (which includes California) there commenced a new willingness by the courts that are influential in character protection to protect graphic characters. These courts broadened the scope of copyright protection by adopting the total “look and feel” approach from trademark and unfair competition doctrines and adapted it to copyright infringement analysis. In addition, the popularity of the character, at least implicitly, began to be factored into the substantial similarity copyright infringement analysis with the result that the “feel” of the character reduced the level of similarity needed to prove copyright infringement. In Walt Disney Productions v. Air Pirates the court appeared to commingle copyright and trademark law infringement criteria by stating that the Disney characters used by the defendants had “achieved a high degree of ‘recognition’ and ‘identification’” and that these elements helped make the characters protectable under copyright law. In addition, the court seemed to rely upon subjective criteria, that was more similar to the secondary meaning analysis frequently required in trademark infringement cases, rather than a more exacting review of the similarity of the characters.

If you want to see what a cease and desist letter looks like in its scary reality, one is posted here