Little Heroes Book under IP dispute
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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...
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@hannahmccaffery There is two sides to what you are asking (for the most part). THe first side is the legal side, and the answer to that is pretty simple. Fan art by it's nature is a violation of copyright law. The law says you can't sell and make money off of other peoples characters.
Then there is the other side which is can you get away with it? That is the route that most artists have taken and most won't get prosecuted or fined for it. But that doesn't make it any more legal. It's like saying "Is it ok to cheat on your taxes?". You know that is illegal, but a lot of people do it and don't get caught. But some do. Either way, it doesn't make it legal just because a lot of people do it.
Note: there are instances (parody, etc) where a character can be used, but I'm talking about the general use of fan art at comic conventions.
Another note: Do not think that you will be granted permission by asking. These companies make their income from controlling their product and they aren't giving it away for free. Here's a quote from an IP attorney I found:
You won't get a license if your proposal is to sell a few items on Etsy or at craft fairs. Disney won't say so openly, but they won't waste time with you unless you are likely to generate royalties in six figures or more to Disney per year---which means you will need to be selling a million dollars or more of products. Otherwise, it is not worth it to licensors such as Disney to deal with you. Further, you probably won't be able to get a flat fee license--you will be paying royalties of 15% to 30%---which means you will have to price your products at a premium over other such products to pay for use of the Disney/Marvel brands. I am involve in negotiating and implementing a quite similar deal now (not with Disney but it is comparable), and the legal fees alone for my client (as licensee) will exceed $150,000 to get the deal done. You want to play in the big leagues? Then be prepared to pay big league fees to lawyers to set this up for you, and big league royalty rates. Disney is the big leagues and you need to be realistic about economics when try to play at that level. Is this fair? Maybe not but it is reality.
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@hannahmccaffery Because the term fan art can be applied in an inconsistent way, I'll clarify your question somewhat by defining "Fan Art" as: Visual depictions (artwork) of characters that you didn't create AND that someone currently holds the copyright to.
By definition fan art is fundamentally a copyright infringement.
So technically all fan art on Etsy is a copyright infringement and is illegal.
But some infringements rise to the level of "actionable infringements" and others are (for lack of a better word) "tolerated infringements"To answer your question "is that worth contacting the companies to ask for permission?" -- you will have to decide for yourself what level of risk you are willing to take.
I tend to be conservative in this risk assessment and have decided for myself, and will recommend to others who ask, that "Yes", it is worth contacting the companies to ask for permission.
Other's feel that "No", it is not worth contacting the companies to ask for permission.
For some in that second group that calculated risk is based on a full understanding of copyright and the level of infringement the companies have tolerated in the past. Unfortunately for others that calculated risk comes from and ignorance of copyright and a baseless assumption that "I see other people doing it so it MUST be legal"
As an SVS instructor my hope (and goal) would be for SVS students to make that copyright infringement risk determination from a position of knowledge. Which is why I appreciate questions like yours!
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Disney is stopping NO ONE from benefiting from the vast number of works in the public domain.
Never claimed that. I don't think Disney deserves credit for following the law. My statement was, and still is, that Disney prevented their own works from entering the public domain. You say their products will be released, but that can't be proven today. History says otherwise. Some should be released soon, but they should have been released twice already and were extended both times! Disney deserves the criticism they receive for this IMO. If they get upset by it, well...
Funny that you mention Lewis Carrol's Alice's Adventures in Wonderland as an example. If current laws existed at the time Disney made their first version - it would not have been public domain!
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@evilrobot Well then... That's pretty on the nose. Never seen those characters before.
Regardless of what is allowed legally, many creators are successful while embracing their creative fans. Rick and Morty would be a good example of this. They regularly share fan art on their social media and have very reasonable guidelines on sites like RedBubble.
You can choose to create, embrace your fans, and make a living. They are not mutually exclusive.
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@SketchyArtish
I'm willing to bet that if someone kickstarted a product featuring Rick and Morty IP for 6 figures (I didn't see how much money Will got up to, but I think that's what he was hoping for?) Cartoon Network would interject. They may be more likely than Disney to agree to be payed for the rights, (there's a TON of random Rick and Morty merch) but I don't think they'd just let it slide.
