Parody of an artistic work is usually considered “fair use” under U.S. law; thus you get books like “Bored of the Rings” and such.
My question is this: if you were to do a visual parody (caricature, which is legal) of something like a character in a movie, can you state that it’s a “caricature of X”, X being the name of the character in the movie and the book?
In other words, are the identifying names of characters and movies also protected under copyright? Can you take a character from a novel, draw a picture of it (your own interpretation of what that would look like) and then sell it?
That actually depends entirely on whether the porperty is public domain or not. Any person can make a caricature of Hamlet, since no one owns the copyright on it. However, if you were to say, make a caricature of Jack Ryan from the Tom Clancy novels, you could run into trouble.
A good exaple is any MAD magazine. If you notice that the caaricatures always have one or two letters changed in the name, enough to make it so that they aren’t using the name, and the character’s are caricatures, so they loosely resemble a copyrighted character.
In evaluating fair use claims by parodists, the decisions lie upon two factors: the amount of the original appropriated by the parodist and the likelihood that the parody will fill part of the demand for the copyrighted work. Either an unreasonably extensive taking from the original or evidence that the parody is a substitute for the original will usually defeat a fair use claim.
The decisions refusing to enjoin parodies have generally been those in which it was fairly clear that the parody was a commentary on the trademark owner or its products.
But take the 1978 case of Walt Disney Productions v. Air Pirates 581 F.2d 751 (C.A.Cal.,1978). It centered around “a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture.” In other words, these Disney characters were doing bad bad things.
The Court of Appeals held that: (1) cartoon characters were copyrightable; (2) defense of fair use was not available where the copying had been more exact than was necessary for the parodists’ purposes; (3) First Amendment did not bar imposition of liability on parodists.
To sum up, yes, you have the right to parody. Yes, you have the right to fair use. But be warned that if it’s too close to the original or if it hampers the profitability of the original work, it might not be considered fair use. I have no clue if this answers your question or not, though.
Names are not protected by copyright. Rather, they are protected by trademark law. However, it seems like you are talking about the character as a whole and not merely the name. As such, certain characters can be protected by copyright as long as they are sufficiently developed. “The less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indisctinctly.” Nichols v. Universal Pictures Group
The test is as follows:
FYI: A court has ruled that Rocky Balboa, and all the characters in the movie (Apollo Creed, Adrian, Clubber Lang, and Paulie), were all protected under copyright because they “constituted the story being told.”
Whether something is a parody depends on 4 factors (section 107):
The purpose and character of the use, including whether such fair use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.
If you decide to make a characature of, say, Susan Calvin from Asimov’s robot stories, it’s a potential copyright violation because you’re creating a derivative work. The final result would depend on how much the author wanted to pursue it.
It’d be hard to claim fair use since what you’re describing is not a parody and you’re selling the result.
OTOH, science fiction convention art shows are filled with interpretations of characters from books, and many are copied without any permission granted. The art is for sale, but I’ve never heard of any author objecting.
As one can surmise from many of the responses, parody does not mean you have unlimited fair use. It is a common misnomer to take the badly written headline for the SNL parody victory and assume that it applies to all parodies. The SNL case was quite limited in scope (and had a lot to do with being a short sketch and not likely to be confused with the original).
The key test for parody is that the work must simultaneously convey the contradictory messages that it is the work that it is trying to evoke and it is not that work.
The responses are also mushing different types of media and representations together. Copying a character in a novel for whom there is no visual original is not at all the same thing as taking a cartoon or movie character, in which the visual representation is the original.
The courts have not been consistent in their treatments of visual derivatives, but the trend, as far as I can see, is to allow less leeway than they once allowed, unless the use is so “transformative” that it constitutes a new work.
The questions in the OP can’t be answered in the current climate without knowing exactly what the final product will be. And even then, bring a lawyer along.
Can you call the parody of a character by the original name of the character? Please assume for the purposes of this question that the parody fulfills the requirements of legitimate and “fair use”.
Those caricatures of are real, living people. They fall under a completely different set of laws in the U.S. than caricatures of fictional characters.
U.S. courts, especially those in California, have become much stricter on the commercial use of living celebrity likenesses.
From the Authors Guild Bulletin Legal Watch column:
I’ve given up trying to figure out what question you are actually asking, and just what it is that you are planning to do. You cannot ask vague questions and expect to get usable answers. So far you’ve referred to names and likenesses, novels and movies, living people and fictional characters. Each and every situation falls under different laws and have been treated differently by different courts in different venues.
Well, it’s not something I want to do myself. Specifics? Let me give you an example. Say you want to draw “Neo” from the Matrix, or “Gandalf” from Lord of the Rings (the faces of the actors) as a caricature - let’s assume that it’s “fair use” to make such an image for the sake of this discussion.
So this brings me to my question. Can you say it’s a caricature of “Neo” or “Gandalf” using their character names?
2nd example on a different question: Say you want to draw a picture (your interpretation, not from the movie) of Eowyn and the Nazgul from the book Lord of the Rings. Is this legal? I’ve seen lots of such drawing by commercial artists.
I merely included the link to caricatures for the benefit of those who don’t know what a caricature is. It’s a visual parody.
If I were doing this for real of course I’d consult a lawyer. I’m just asking out of curiosity because I’ve seen stuff like this and the idea of copyright fascinates me.
If you are doing an illustration of an actor in a role for an article or review, it would probably be considered fair use. If you were to sell it as a separate product for commercial sale, it might run afoul of trademark, copyright, or likeness laws. (Whether these would be enforced is always a totally separate issue.)
A completely invented illustration - not a takeoff on a cover drawing - of a character from print would likely to have more leeway.
Again, the final determination is up to the courts and it has become nearly impossible to determine how any given jurisdiction will rule.
I’m not making these qualifications and distinctions just to be picky. I’ve been following copyright law for years now and I have less understanding of what is legal at the moment than I did when I started. It has become that complicated.