Discussion:
What is the name of your state? Illinois
Ok, posting skins of characters owned by any company such as Marvel Inc. with out their express permission is out of the question. However if some one is offering their services as an artist, custom making skins for the client (for their private use only, not to be distributed to anyone else) to their specifications and the client requests a skin based on a comic character, or a movie/TV character or a character from a book..... can the artist legally provide the service? Is this different than some one hiring an artist to paint them a portrait of ... say Batman... and would that be legal if the artist isn't the owner of Batman?
Answer:
Ok, posting skins of characters owned by any company such as Marvel Inc. with out their express permission is out of the question. Well, it's not out of the question, its just not lawful, and you'll probably get sued!
However if some one is offering their services as an artist, custom making skins for the client (for their private use only, not to be distributed to anyone else) to their specifications and the client requests a skin based on a comic character, or a movie/TV character or a character from a book..... can the artist legally provide the service? Legally? Probably not. While the posting of skins is clearly an infringement of copyright (both the reproduction and distribution rights are infringed), there is no reason why an artist creating their own "version" of the copyrighted or trademarked work would also not be infringing the copyrights.
If you take a very technical legal view of things, ANY copying of a copyrighted work without permission is copyright infringement. If you are using just a part of a copyrighted work, you may have a "fair use" defense, but if you are copying the whole work -- like the entire picture of Spiderman, or whatever -- you probably won't have a legitimate fair use defense. The law, as written, for the most part doesn't care about the facts surrounding the copying -- even a kid drawing Spiderman on his notebook at school is technically infringing on Marvel's copyright.
Now, the kid drawing on a notebook isn't going to get sued, for a coupl eof reasons. First, how is the copyright holder ever going to find out? Second, the courts are not going to enforce a copyright when the damages to the copyright holder are de minimums -- basically, the courts aren't going to waste their time on such a trivial issue of a kid copying something on his own time for his own enjoyment.
However, if that "kid" starts making his drawings avaialble online -- where he can be found by the copyright holder -- and starts making some money doing it (or doesn't make any money doing it, but impacts a current or potantial market of Marvel's) -- then all of a sudden it's not a de minimus issue, and the case stands a good chance of ending up in court if it doesn't settle first.
I guess the point is this -- if you are doing stuff on your own, even if it is technically copyright infringement, from a practical standpoint, no one is going to know, and nobody would bother suing even if they did know. But take your passion for Spiderman online, and start a business around it, and all of a sudden you are making yourself a target for litigation.
Is this different than some one hiring an artist to paint them a portrait of ... say Batman... and would that be legal if the artist isn't the owner of Batman? This technically wouldn't be legal either -- but unless advertising was done or something, it is unlikely that the copyright holder would ever find out, so it is technically not legal, but unlikley to result in an infringement action.