Yesterday, the Montreal Gazette had an editorial cartoon showing very Donald looking duck with his bill wide open ranting “Make white America great again”. Is this too close to copyright infringement?
As always, the answer to “could X sue?” is yes – the real question is, could they win?
Would a reasonable person be confused by this representation to believe the Disney endorsed the message?
No. The standard for copyright infringement is “substantial similarity.” While the image may be substantially similar, in the case of a literary and artistic work such as Donald Duck the narrative must be similar too.
Disney threaten to sue the University of Oregon for their duck mascot … yeah, it was an exact copy … don’t know the arrangement that was agreed upon but the imagery is still in use … I’m guessing money was exchanged and a licensing document in place.
If it helps - here is a link
There are two issues at work here: copyright and trademark.
One way to use copyrighted works is fair use. Quoting small amounts of works here at the Dope is considered fair use, because that serves an educational, informative purpose. So even using Donald’s image may be allowed in certain contexts. Here, Donald Duck’s image was not used; it was parodied. Parody is almost universally considered a protected form of fair use.
Trademark has a somewhat different set of allowed uses. The use of “Disney” as a term indicating its products and “Donald Duck” as one of those products are no doubt themselves trademarked but everyone is allowed to make reference to such terms. We are not using the terms to sell goods in a way that may confuse buyers to the identity of the seller. Using the actual image in a commercial product has no such protection. Consumers might legitimately assume that The Walt Disney Company had issued or authorized the product. Even variations or parodies on a trademarked image can fall under this rule. An editorial cartoon might be termed a commercial use because the newspaper uses it to sell newspapers.
Of course, I’m spouting U.S. law and the cartoon comes from Canada, so I may be talking through my hat. Muffled as my words might be I’m guessing that neither copyright infringement nor trademark infringement could be a successful basis for a suit against an editorial cartoon. Though Canada doesn’t have a First Amendment I assume that it has broad freedom of political comments that would be comparable to ours in this situation.
Disney would have to disavow their WWII hate campaign cartoons against the Germans and the Japanese.
Actually, the duck’s hat says, “Make white people great again.”
Without a sailor suit on, the duck doesn’t even look much like Donald Duck. It’s only once I remembered that both ducks share a first name that the parallel became clearer. But a mere suggestion is hardly infringement.
Besides, if anybody is going to sue, I would think it would be the non-avian duck, if only from force of habit.
Pretty sure editorialists are allowed to use likenesses.
Parody is considered fair use under copyright law:
http://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf
Recall that when National Lampoon published their “Encyclopedia of Humor”(?) in the late 1970’s(?), they included a parody ad - Volkswagen about that time published a series of ads one of which featured a VW Beetle floating. NL copied the layout of the ad exactly, including the appearance of the typeface and the headline; but the headline said “If Ted Kennedy had driven a Volkswagen he’s be president today”. (Politicians getting into trouble because of women - who’da thunk it?).
Apparently neither Kennedy nor Volkswagen thought this was funny, but VW was the one that threatened to sue. And perhaps legitimately - they apparently got complaints from people who thought it was a real ad.
It’s possible the retraction was simpler than fighting in court and possibly losing.
Well, Donald has shown support for evil ideas in the past.
I’m operating from memory here, but I believe there was a bit of a kerfuffle between Disney and Marvel Comics over the latter’s Howard the Duck character. Disney threatened legal action because Howard was allegedly too similar to Howard (which may well have been so, since Howard was conceived as sort of a parody character anyway). As I recall, they ultimately came to terms, part of which is the reason that Howard now always wears pants.