If I was to create a short film, and make it available in a format that needed to be paid for to access, e.g. as a bonus feature on a commercially available DVD, but one of the characters was archetypically similar to an established trademarked or copyrighted character, am I skirting too close to breaking the law?
For example, if I had an unnamed character who, though he was actually wearing a green and yellow costume, nevertheless had a prominent spider emblem on his back and climbed walls and swung on webs through the city streets…
Or if I had a man in a fedora and khakis looking for exotic antiquities in caves and ancient temples…
Or if I had a character dressed in a long black leather jacket and expensive sunglasses who could avoid bullets by leaning backwards in slow motion…
…would I be risking legal trouble?
What if these characters had different names to their famously known, but not exactly similar, archetype?
What if there’s an original storyline, that was not a comedy/parody (though I guess it depends how parody is defined)?
What if it’s a bonus extra feature that wasn’t the central part of the DVD, but nevertheless could only be seen after the DVD was bought? Or what if you had to pay a membership fee to a website to see it?
IANAL, but I think on the ManSpider one, you could have trouble, as it would be clearly derivative (or could be argued to be such), whereas on the Explorer one, you might not, because Indiana Jones is merely an specific expression of an archetype that already existed before he came along.
It depends on how much the trademark/copyright holder wants to push the issue. There’s really no clear dividing line, and a judge could eventually rule in your favor (though the legal costs would be more than you probably could afford over the issue).
As a guess, the spiderman (note that the trademarked name is “Spider-Man”) would probably have Marvel’s lawyers getting in touch with you. The guy with the fedora is probably too generic to be a conflict, and the faketrix character would be somewhere in between.
The names of the characters shouldn’t match the copyrighted/trademarked ones; if they do, it’s much more ammunition on the other side.
An original story line is not in your favor in this instance, but you can claim the character is a parody even if the story is different from the original. Will this help? Again, it’s up to the IP lawyers and the courts.
The bonus feature/membership fee is not relevant, other than it may keep it hidden from the lawyers longer.
Dunno about this one; they pretty much got away with having Jet Li do that in this movie - it even used the terminology of him being ‘the one’. But I think again, the Matrix may have borrowed some of this from prior art, so that would undermine any cause they might have for complaint.
The character I actually want to use is not one of my examples. In fact, it’s a female who wears guns on her hip, tight shorts, and a crop top, with her hair in a single long braid, as she finds treasures in exotic locales.
Well, folks in other countries writing non-parodic books about young wizards name Barry Botter and whatnot are being caused to desist, if that’s helpful.
So the answer seems to be: it’s not necessarily illegal, but it’s skirting the edge a bit closely, and it all comes down to if I get found out and whether they decide to litigate.
I can’t remember the case name, bt in the US there was a fight between Marvel Enterprises and Rob Liefeld over “Fighting American”. The judge ordered several aspects of the character altered so it would not be so obvious an infringement of Marvel’s “Captain America” (most prominently, the shield).
The test in Anglo-Australian jurisdicitons, more or less, is whether the “essence” has been taken". Its very subjective. So the fedora on your explorer might be fine, but the whip would probably cross the line: the idea of a man with spider-powers might be ok so long as the web-slinging and costume were sufficiently different.
The TV series Relic Hunter with Tia Carrera was an obvious rip-off of Lara Croft, Tomb Raider, and if you want to use a similar character it might be instructive to watch the series to see how the producers got away with it (assuming they did - I don’t know and it was a short-lived series).
It ran three seasons, and is being endlessly rerun in Canada – there was ample time for cease and desist orders. They probably had all their ducks in a row, legally.
