Little Heroes Book under IP dispute
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I've seen a number of people mention they feel this work qualifies as "parody" under the Fair Use Defense. While I don't disagree I also don't see it as quite the obvious case the others seem to.
I'd love for someone to articulate clearly why they feel this is true. It would be an excellent learning experience for all involved, and no doubt it would be helpful to Will as this issue moves forward.
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@Lee-White wow i had no idea about quotes
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@davidhohn turning adults into a baby and putting them into baby situations is a comical act that pokes fun at the original character. Recently as an example, I was covering a political protest event in London for the newspapers. They turned Donald Trump into a giant baby balloon. It was allowed to go ahead because it was classed as parody by the Mayor of London.
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@sigross perhaps this is because Trump’s face does not have a copyright? Correct me if I’m wrong.
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@sigross yeah but would that argument stand up against them when they come after you? I thought what Will was doing was awesome. But it does show how dangerous it can be to do fanart for profit.
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@sigross I totally understand your feelings here, but I'd like to clarify a few things that may help people understand some nuance with this topic. When you say Disney put a new spin on The Hidden Forest, that is totally legal. You are also free to write a new spin on story concepts found in The Hidden Forest as I am. The big thing to remember here is that IDEAS are not protected under copyright. But actual subject matter IS protected. It's a weird concept and I'll give an example of how it might work:
I CAN write a book about a boy who discovers he is a wizard and gets sent to wizarding school. I CANNOT write a book about a boy wizard named Harry Potter who goes to Hogwarts. And even with this example, I'd need to take the story in it's own direction in terms of details, even if the over arching story is similar. If you just mirrored a story and used different names you would get busted because it's too derivative.
Using existing stories for narrative arc has happened time and time again in books, movies, and TV. If you look at Ferngully and Avatar, they are VERY similar in what happens. But Avatar is totally legal because there is no copyright violation there. I can also write a story based on the story arc of Ferngully, but I can't use those characters, words, details, etc.
Disney, as well as a TON of other companies and even individuals have mined existing stories throughout history and put their new take on it with totally new characters, places, and details. But you are not free to use the characters someone else came up with.
Hope that helps clarify that issue.
Regarding the trump balloon, Trump is not a character under copyright protection. He is a public figure and thus, is free game to do really whatever you want with his likeness. It doesn't even have to be under parody for that to be totally legal.
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One other thing that should at least be brought up here is that many times characters are so iconic of a company that they may be registered as Trademarks. Trademarks are defined as:
U.S. Patent and Trademark Office (USPTO) indicates that a trademark protects “words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.”
A good example of this would be Mickey Mouse. He goes far beyond being just a character that disney has. He is part of their brand. Trademarks are more restrictive than copyright because they deal with the whole identity of a company. It's brand is affected by what people do with it's trademark.
Now, are the characters from Marvel Trademarked? I have no idea about that. But it wouldn't surprise me if they were. At least maybe some icons from the characters such as batmans logo, etc. might be trademarked.
There is a lot of grey area here and it's a fantastic discussion to have!
SVS Faculty Instructor
www.leewhiteillustration.com -
@Lee-White ok question on the likeness of a person thing. When the game Minority Report was coming out, the game company wanted to use Tom Cruise’s likeness on the character. Tom Cruise said no so they decided not to, but would they have gotten any kind of legal trouble had they still used his likeness?
instagram and twitter: @artofaleksey
alekseyillustration.com -
@Aleksey That's a great question and I think is probably a very nuanced answer. I could see Tom Cruise's lawyers arguing that HE is a brand, and thus, they have infringed on that brand. The fact that they would be making money on his likeness would probably be critical to the case. If someone is making money off of something someone else made, then it gets a lot more serious.
For example, I can make a balloon for political reasons using trumps likeness. But if I start selling balloon's with Trumps likeness, that may be a whole different level and maybe I'd get into trouble. Again, I'm not totally sure of the nuance there.
SVS Faculty Instructor
www.leewhiteillustration.com -
@Lee-White I can see you have a good insight into this! So I was wondering George Lucas used the 2 main characters from the Kurosawa film. C3PO and R2D2. He put them in robot suits but the characters were essentially the same. Was he just lucky to get away with that or did he change them enough for them to be seen as new characters?
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@Jason-Bowen It's a tough one. As it depends how deep Will's pockets are. Going to court for copyright cases is expensive. I've been through several copyright court cases and I always hand over my copyright to my agents lawyers so they do a block legal attack. Then they hand me the copyright back after the case. I wouldn't be able to afford it otherwise.
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@Aleksey This depends if the celebrity has branded themselves and trade marked their image. I was selling prints of press photos I took of Taylor Swift and her lawyers came after me with a cease and desist order even though I had taken the photos and owned the copyright. I just took them down as I didn't want to go to court. Wasn't worth the effort or legal fees involved. Taylor Swift is trade marked owns her likeness and has a team that scrapes the internet for signs of her name.
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I think Will may be in a pickle here. I see everyone saying it's clearly a parody....Um...nope...I don't think so Marvel has their own baby characters already and they make money off of them. I think Will was fine before the book became too successful....Now Disney has taken notice.
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This thread is really moving!! Which I love!
Anything that gets illustrators to dig in and understand copyright -- and in this case the Fair Use Defense -- is a win in my book.
I want to reset the discussion about Trump and Tom Cruise just a bit.
Please research "Right of Publicity". You, me and celebrities have a right to control how our likeness is used.When it comes to the Fair Use Defense there is no single factor that makes it "legal". It is the considerations of multiple factors that lead to the final decision.
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@sigross regarding C3PO and R2D2: It's totally legal to base a character off of another character. BUT, the character can't look the same, say the same things, or do the exact same things. If the characters in Kurosawa's film aren't robots, and they don't say any of the exact same lines, and they don't help the main characters destroy the Death Star, then George Lucas is totally in the clear.
SVS Faculty Instructor
www.leewhiteillustration.com -
@Lee-White Probably safe then as they're speaking Japanese in feudal Japan!
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While were on the subject of copyright. Does anyone have any thoughts or insights on Article 13 of the new EU copyright Law that wants to build AI copyright filters into the internet? The law hasn't been passed yet. But is on its way.
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Text on Article 13 if anyone wants to read it Art_13_unofficial.pdf
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What about selling fan art on Etsy? Obviously you can't earn a crazy amount of money on Etsy, not to the extend Will would with his book, but is that worth contacting the companies to ask for permission? Only because i've always seen soooo much fan art on Etsy and I can't imagine all those people asking for permission!
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@evilrobot Oh damn, didn't know about canon baby hero characters! It certainly seems more of a problem now...
