Little Heroes Book under IP dispute
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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.
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@Braden-Hallett If it were an all Rick and Morty book I might agree. But this situation would be more like if Will included some Rick and Morty in with the other pop culture references. That seems like something they would let go (of course, that's purely hypothetical).
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@Lee-White said in Little Heroes Book under IP dispute:
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.
Based on my understanding of "parody" and the "fair use defense" your instinct is spot on.
Parody is one of the multiple factors considered when determining if something falls under the fair use defense. A factor that can weigh against a parody defense is if the infringing use is for monetary gain. As you can imagine this is not a binary question of "Did this use generate money -- yes or no?" but rather "How much did the goal of making money factor in the the creation of the parody?" -
@davidhohn Can we just set up a hotline- red phone and everything- to call you in case we ever run into copyright issues? Please and thank you.
SVS Instructor
https://www.annadaviscourt.com/ -
@AnnaDaviscourt Clearly I enjoy talking about this stuff. And posting on these forums seems to draw me out of my painting cave. But really the best place for questions like:
"Is this an infringement?"
""How liable will I be if I go ahead and infringe on this artist/company's IP?"
"Someone infringed on my work -- what do I do now?"should be directed to an IP attorney.
I am a huge fan of the Volunteer Lawyers for the Arts https://vlaa.org
I have a project that I'm working on that I know will require multiple infringements. I believe that it will fall under the Fair Use Defense -- but I don't KNOW that it will. So I'm going to talk to an Intellectual Property attorney here in Portland who is part of the VLA. -
@davidhohn
Haha!
'Requiring multiple infringements' sounds like you're a rogue artist- dodging the copyright cops by day, drawing adorable characters all night.
Do the VLA work Pro Bono? I haven't heard of them before.SVS Instructor
https://www.annadaviscourt.com/ -
@AnnaDaviscourt I know you are kidding but, no -- definitely not dodging copyright cops. The Fair Use Defense is outlined in Title 17 of the US Copyright code for a very real, and necessary reason.
The project I have in mind is something I hope will be valuable to a large swath of the illustration community. But to do it I will have to infringe on the copyright of others. I'm simply trying to extend the same courtesy to the copyrights of others that I would want shown to my work.
My experience with the VLA is that they have a sliding payment scale. The less income you make the less their legal services cost. At some income level it is free. You should definitely investigate them.
First time I used the VLA here in Portland was on my first book contract when I went in and got every clause of the contract explained to me. Most valuable hour of my life!
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Here is a couple of examples of what it will cost you as an artist if you make some $$$ for copyright infringement - READ ARTICLE Jeff Koons Is Found Guilty of Plagiarism in Paris and Ordered to Pay $168,000 to the Creator of an Ad He Appropriated
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@davidhohn @Lee-White Thanks for both of your replies! That's really interesting from the IP attorney quote that you found Lee, obviously Disney (or other companies) don't have time to run around after each and every person illustrating their characters unless they're selling a crazy amount of them, it's not worth their time like you say.
A few UK illustrators that I follow do seem to sell prints/merchandise of Harry Potter (and other tv, films etc), they're illustrated in their own style though and have put their own stamp on the location etc, so does that fall within the parody category? Or is that infringement too?I'm learning so much in this
