Discussion:
What is the name of your state? New York.
I'm a comic book artists who is known for his work on Batman, Wonder Woman, Spiderman and many other known characters. I have recently produced a sketchbook which includes my interpretation of some copyrighted characters and celebrities. It is a general artists sketchbook which I've been approached about for a publishing venture.
Being an artist's sketchbook, is this work protected from litigation by copyright and trademark holders of some of the characters in it?
Michael Netzer
Answer:
Being an artist's sketchbook, is this work protected from litigation by copyright and trademark holders of some of the characters in it? It depends. If you made sketches, or interpretations, of copyrighted and/or trademarked figures with permission from the copyright or trademark owner, then whether or not what you are doing would depend on the scope of the license given you by the copyright or trademark holder.
If your license does not allow for "republication" of the licensed sketches, or if you were working without a license (or permission), then you are not protected from infringement.
It all depends on your agreements with the trademark and copyright holders.
Answer:
It all depends on your agreements with the trademark and copyright holders. Well, there is no agreement or permission from the trademark characters' holders.
But I am an artist who is known for having drawn these characters. So now, I have produced my own drawings of them as an artist's interpretation.
This book is an artist's sketchbook. It includes some of these characters because I've drawin them in my career as a comic book artist and this identifies me as an artist.
I suppose the question is whether there is any legal basis for this being a book selling by it's merit as a sketchbook and not as a representation of some copyrighted and tademarked characters.
This is a common product in the comic book industry and I've heard that the publishers sometimes grant permission for such things and other times they don't. Most of the time they overlook such products professing that they want to allow their artist's some leeway in procuring additional notoriety and income.
I'm wondering whether it could be that such things are overlooked because the publishers have no legal basis to restrict such sketchbooks. They may be able to threaten and even litigate and thus intimdate artists from doing this but perhaps they have no solid legal ground to stand on.
Answer:
I'm wondering whether it could be that such things are overlooked because the publishers have no legal basis to restrict such sketchbooks. They may be able to threaten and even litigate and thus intimdate artists from doing this but perhaps they have no solid legal ground to stand on. If they own a copyright and/or trademark in the character, they do have a leg to stand on. If they have a copyright on the character design, they can pick and choose who they want to sue (if anyone) -- however, if the character is trademarked, they are obligated by law to defend their mark, or they could lose protection altogether, so I would be very suprised if a trademark holder "overlooked" infringing activity to help and artist, unless they have no interest in maintaining trademark protections.
So, if you have no agreements with the copyright and trademark holders, you are opening yourself up to infringement suits by publishing the book containing your "interpretations" of the copyrighted and/or trademarked characters.
But I am an artist who is known for having drawn these characters. So now, I have produced my own drawings of them as an artist's interpretation.
This book is an artist's sketchbook. It includes some of these characters because I've drawin them in my career as a comic book artist and this identifies me as an artist.
I suppose the question is whether there is any legal basis for this being a book selling by it's merit as a sketchbook and not as a representation of some copyrighted and tademarked characters. None of this is relevant to the question of infringement. You either need to obtain licenses from the copyright and trademark holders to publish your versions of their intellectual property, not publish your interpretations of their characters, or just go ahead and hope that you don't get sued.
But nothing you've provided here will protect you in the event that someone decides they want to protect their IP...
Answer:
None of this is relevant to the question of infringement. You either need to obtain licenses from the copyright and trademark holders to publish your versions of their intellectual property, not publish your interpretations of their characters, or just go ahead and hope that you don't get sued.
But nothing you've provided here will protect you in the event that someone decides they want to protect their IP... I understand and thank you for the informed answer.
I'd push this a little further and ask how it is that Mad Magazine can portray a parody of a movie like Spiderman, for example, using and "interpretation" of Marvels characters and not be open for infringement litigation?
Answer:
I'd push this a little further and ask how it is that Mad Magazine can portray a parody of a movie like Spiderman, for example, using and "interpretation" of Marvels characters and not be open for infringement litigation? Because a true parody is a "fair use" of a copyrighted or trademarked character, and is outside of the scope of copyright and trademark protection. A copyright or trademark owner's rights are not absolute -- there are always exceptions -- but the exceptions are just that, the exception, rather than the rule. Most use of a trademarked or copyrighted work without permission is infringing. A parody is one area where the courts and statutes have carved out an exception -- the right to create a parody under freedom of speech trumps the IP holder's rights to absolutely protect their work.
But a parody is a pretty narrow exception, and it really has to be a parody in order to be protected -- you can't just draw any old thing, call it a parody, and expect to be protected.
Answer:
But a parody is a pretty narrow exception, and it really has to be a parody in order to be protected -- you can't just draw any old thing, call it a parody, and expect to be protected. Would a drawing such as the one in the link below be within the accepted definition of parody, in your opinion?
The character is based on Marvel's patriotic superhero, Captain America.
Answer:
This may be of some help to you -- this is from Justice Kennedy's concurrence in Campbell v. Acuff-Rose Music, the leading case in this area:
" I agree that certain general principles are now discernable to define the fair use exception for parody. One of these rules, as the Court observes, is that parody may qualify as fair use regardless of whether it is published or performed for profit. Ante, at 22. Another is that parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition. Ante, at 10. It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well). See Rogers v. Koons, 960 F. 2d 301, 310 (CA2 1992) ("[T]hough the satire need not be only of the copied work and may . . . also be a parody of modern society, the copied work must be, at least inpart, an object of the parody"); Fisher v. Dees, 794 F. 2d 432, 436 (CA9 1986) ("[A] humorous or satiric work deserves protection under the fair use doctrine only if the copied work is at least partly the target of the work in question"). This prerequisite confines fair use protection to works whose very subject is the original composition and so necessitates some borrowing from it. See MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981) ("[i]f the copyrighted song is not at least in part an object of the parody, there is no need to conjure it up"); Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, pp. 23-29 (1987). It also protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism. See Fisher, supra, at 437 ("Self esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee"); Posner, When Is Parody Fair Use?, 21 J. Legal Studies 67, 73 (1992) ("There is an obstruction when the parodied work is a target of the parodist's criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work") (emphasis omitted)."
So basically, to use a copyrighted work in a parody, the parody must actually BE about the work being parodied, if that makes any sense.
Would a drawing such as the one in the link below be within the accepted definition of parody, in your opinion? That's a very tough call. It could be argued that what you are making fun of is the President, or the government, and that would NOT be sufficient to use the Marvel character without a license. But I guess an argument could also be made that it IS making fun of Captain America's features. There are no cut-and-dried answers in this area of the law, unfortunately.
I do know, however, that Marvel is a particularly litigious entity -- take that for what it is worth.
Answer:
That's a very tough call. It could be argued that what you are making fun of is the President, or the government, and that would NOT be sufficient to use the Marvel character without a license. But I guess an argument could also be made that it IS making fun of Captain America's features. There are no cut-and-dried answers in this area of the law, unfortunately.
I do know, however, that Marvel is a particularly litigious entity -- take that for what it is worth. I thank you for the very helpful information. I suppose that it could be also argued that this is a parody of what Captain America stands for. A patriotic concern for his country.
What this does explain is that the law and it's application is a continually evolving entity and that any judicial circumstance can contribute to how it becomes defined in the future. Thank you again.