Little Heroes Book under IP dispute

  • Looks like Disney is going after Will's Kickstarter. What a bummer. More fuel for the fire in the eternal fan art debate.

    Hope it's okay to post this here. Certainly not trying to call Will out or anything. I backed the project and just saw the notice. Thought it might open some interesting conversation.

    What do you folks think about making/selling fan art? Is it even worth the risk trying to sell it? This is a good example of the headaches that can be involved.

    (P.S. I realize the parties involved might have to stay quiet for legal reasons, but you have my support)

  • @SketchyArtish said in Little Heroes Book under IP dispute:

    Disney is going after Will's Kickstarter

    Oh dear... This really sucks.

    This is one of the dangers of starting to make money off of fanart 😞 Once you start making enough pie, the owner of the orchard who's fruit you're picking is going to want a slice. One or two pies, the farmer doesn't care. Starting a pie company on the other hand...

    I hope it's as simple as 'I guess I'll take out any characters having to do with marvel/disney, then'.

  • SVS Instructor Pro

    I think it's fine to post about this. Will did a FB live video this morning talking about this very issue. He has a characteristically calm and reasonable response to the change in the project status.

    As for your question about making/selling fan art: There is clearly a market for fan art out there. But it is important to understand what you are doing when you make fan art and even more importantly when you try to monetize it.

    Whether you are making money or not -- the mere act of creating fan art is a copyright infringement. The important bit is whether the fundamental infringement rises to the level of an "actionable" infringement.

    I was drawing comic characters from the age of 8 when I got my first X-men comic from a friend at school. While all those drawings were "technically" infringements they never rose to the level of "actionable infringements". Along the way I got more invested in the Marvel characters, I became a little "cooler" to my friends at school, and I learned how to draw.

    So yes -- I think that fan art can be a useful and productive thing.

    It's when you try to monetize fan art that you need to go in with eyes wide open. Understanding that the fan art you make is fundamentally an infringement. You are creating copies and derivatives of intellectual property created and owned by someone else. If you are going to use and generate income off fan art, without negotiating a license beforehand with the Intellectual Property (IP) owner, you need to have a full and complete understanding of the Fair Use Defense. And in the case of some characters, you need to understand Trademark Law.

    Which goes to the second half of your question -- is it worth the risk trying to sell it?
    I have made concerted effort to study copyright law and how it pertains to illustrators. In the absence of a license from the original IP holder I have landed on -- No -- it is not worth trying to sell it.

    It is, in my opinion, always better to negotiate a license with the IP holder if I want to sell fan art.

    And I want to clarify -- the term "negotiate" can vary in it's meaning. Most people think it means "pay" (and often it does) but it can also just mean "ask and get permission".

  • SVS OG

    Oh, no! What’s going to happen now? 😧

  • Yeah that’s rough. Bums me out a bit because disney has plenty of money to spare. (Also i secretly despise Disney’s practices when it comes to IP)

    Fanart is not only a key way for artists to get noticed or to get work, but also to a way to spread joy for those that love the IP in ways the owners of that IP either cant do or wont do.

    Essentially anything that stifles creativity is a 👎 for me.

  • SVS OG

    I watched an episode of “Adam ruins everything” and it spoke quite a bit about Disney. From what I remember, they are one of the ones that changed the public domain law and how it works. It was right at the time Mickey would have fallen into the public domain. What really stinks is who knows what percentage of “public domain” stories they have used throughout the years. It’s like tons! And that’s a technical term.

    I hope Will doesn’t have to change much of his book. It’s really amazing. Maybe Disney and marvel can share a piece of the pie, and market it as well. Maybe sharing the pie isn’t all bad if he then has the marketing machine they have for distribution and selling. When your work is that good, I’m hoping they see it as a money maker for themselves vs making him scrap his awesome work. Anyone been in a Disney store in Orlando? They are freaking enormous! And full of all kinds of “fan art” and variations of the characters. Hey Disney - “show @Will-Terry the money!!!”

  • SVS Instructor Pro

    @Aleksey Not that I fundamentally disagree with anything you wrote, but as this topic is so fuzzy can you be more specific about your responses?

    Why do you reference the amount of money Disney has?
    What about Disney's IP practices do you not like?

    I do agree that fan art is a way (although I would disagree that is is a "key" way) for artists to get noticed and in some cases generate work that is not a fundamental copyright infringement (i.e. a project that is not fanart)

    I don't understand what you mean "spread joy for [...] owners of that IP either can't do or won't do" Can you cite an example?

    And finally what do you mean "anything that stifles creativity is 👎 for me"?
    As you can imagine I agree with you! But in the context of this thread I don't understand the relevance.
    If you are referring to the OP I find it difficult to argue that Will's creativity is being stifled. He's made the fan art. He has creatively expressed himself. Fan art is constantly being created.

  • SVS Instructor Pro

    @Whitney-Simms I watched that episode of Adam Ruins. I would recommend doing additional research. I usually like his shows, but that one is wildly misleading boardering on factually inaccurate.

    Disney is an easy scapegoat and target for things people don't like about copyright law, but they have had zero effect on public domain. Every public domain story Disney has used for one of it's movies you or I or anyone is able to use.

  • SVS OG

    @davidhohn ha, who knew! So, if they created from a public domain story, we can still create fan art. Like Alice In Wonderland? Is it the ones that they wrote we need to check with IP law? Like the Lion King? Those might not be super accurate with the specific ones that fall into each catergory.

    Darn you “Adam ruins everything.” Yeah, I guess everyone warps Information to sell a show or ouch their agenda. I suppose it is always good to do your own research when your job deals with it!

  • SVS OG

    Its a shame Will has been railroaded but he is using other peoples ideas to make money at the end of the day. I hope he gets the rights to use the characters though because they are great and a lot of the work has gone into it. And the cost of the rights will be interesting too.

  • Correct me if I'm wrong @davidhohn , but the copyright laws have been extended twice when Disney's works were coming up for release into the public domain. The recent release of works from the 20's were originally scheduled for release in the 70's, then again in the 90's. It's pretty well known that Disney paid lobbied politicians to extend the length of claims in those instances. They weren't the only one, but they played such a large part it's commonly referred to as "The Mickey Mouse Act."

    Yes, those stories can still be used. That's because Disney never owned them in the first place. Their interpretations of those characters are common targets of copyright strikes though. Disney's original stories like Steamboat Willie have been held from public release due to the previously mentioned extensions.

    IMO people have the right to complain when a company that founded itself on public domain works uses their financial success to prevent future artists from enjoying the same benefits. I can't blame them from a corporate standpoint, but the criticism seems fair.

    That said, this Marvel stuff is not included in that situation. I personally think Will's works are pretty clearly parody (unless Disney planned on making Episode -III, The Birth of Darth Maul sometime soon). Hope he doesn't give in, but I can understand that fighting Disney in court is probably not worth the effort.

  • SVS Instructor Pro

    @Whitney-Simms I think we need to clarify -- "Fan Art" is by definition a copyright infringement. So no, you cannot legally create "fan art" of Disney's movie character design of "Alice" from Alice in Wonderland.

    BUT you CAN create your own version of Alice from Lewis Carrol's "Alice in Wonderland" by referencing the original text and basing your character design on the text that is in the public domain.

    Fun fact: One of my very favorite illustrated versions of Alice in Wonderland by Arthur Rackham is now in the public domain. So you can base your design on his.
    You can also base your new design on John Tenniel's (but I'm not as big a fan of his design)

    Does that distinction make sense?

  • SVS Instructor Pro

    @SketchyArtish You are not wrong. But also not completely right. And like many things who is "responsible" or the "good guy" or "bad guy" depends on your point of view.

    I am going to state from the start that I view copyright protection as a GOOD thing.
    The fact that I am the sole owner of the copyrights to my work allows me to generate income from my creative efforts.
    If someone infringes on my copyright, thereby making it more difficult for me to earn my living, copyright protection allows me to legally stop those who are effectively stealing from me.

    Now some history:
    The United States is a country that historically has been the slowest to provide protection for intellectual property. Europe has been much more proactive in providing copyright protection for creatives. And I mean all creatives, from big companies to individual artists and writers. This protection was codified in the Berne Convention of 1886. In 1965 the members of the Berne Convention established copyright protection to last the life of the artist plus 70 years.

    The Unites States by contrast didn't even sign onto the Berne Convention until 1989, and even then didn't offer the same protection of life plus 70 years to individual artists until 1998. Which is the date you reference in your post.

    So yes, Disney, other large companies along with tens of thousands of individual artists, writers, photographers, filmmakers, songwriters, dancers, etc lobbied/petitioned/wrote to and called Congress to provide United States based creatives with the same copyright protections already provided to their European counterparts.

    This means that works protected by copyright in England or Japan are also protected by copyright in the US and visa versa. It ALSO means that works in the public domain in England or Japan are also in the public domain in the US, and visa versa. The 1998 extension effectively simplified intellectual property the world over.

    You can decide for yourself if the copyright protection you and I and yes, Disney enjoy is the "right" amount of protection. But there is no question it is an equal amount of protection.

    I have to disagree with you when you write " ...when a company that founded itself on public domain works uses their financial success to prevent future artists from enjoying the same benefits".

    Disney is stopping NO ONE from benefiting from the vast number of works in the public domain. I can do my version of Alice in Wonderland, Peter Pan, Aladdin etc. I just can not base it on the new creative decisions Disney made. This means story changes original to the Disney movie versions as well as character design depiction choices that are unique to Disney. I, just like Disney before me, must base my interpretation on the original version in the public domain.

  • @davidhohn i shall try I’m not the best at articulating and using words.

    To the money thing, Disney is a very wealthy company that owns a lot of properties, and keep buying up other properties. So they will keep making lots of money even just by sitting on their hands. So Fan Art work, even ones that are going to be sold and distributed, like what Will Terry has made and publically funded (correct me if im wrong pls) didn’t actually take any money from Disney. If anything I find fan art to be free advertising to big IPs.

    Disney IP practices that i am referring to: they are pretty much the ones that are running the show when it comes to IP laws. (Again correct me if I’m wrong) They lobby a lot to extend the time it takes for an IP to enter into the public domain. Especially when it comes to their own IP. And they have the resources to do so, this prevents anyone from creating fun amazing work with those IPs. It bothers me because a lot of the money they made were from work that is in the Public Domain already (cinderella, hunchback of notre dame etc) yet they dont let their own IP enter the public domain. And dont get me started on the whole Mary Poppins and LP Travers fiasco.

    Spread the joy thing I mentioned: one example is Will Terry’s own work, the adorable baby versions of superheroes that Disney isnt doing.

    My stifle creativity thing I think had more to do with my general feelings on Disneys practices on IP i mentioned before. And while im sure Will Terry had a lot of fun doing this, he might have to second guess each time he works on a piece of fan art that he plans to distribute in any capacity because of this.

    Whew ok these are all my personal feelings on the matter.

    And perhaps i am wrong, maybe fan art isn't a key way to get noticed but I won’t deny it’s helped me a bit when I did some.

    Sorry for long post, hope it helps clarify what I meant, I think it’s relevant.

    I like the work disney makes a lot of the time I just dislike some of their business practices.

    Like I agree a creator of an IP should own the IP for their entire life, but Disney is not a creator, it is a corporation. That is the fundamental difference.

  • @davidhohn said in Little Heroes Book under IP dispute:

    Disney is stopping NO ONE from benefiting from the vast number of works in the public domain.

    Correct, and I didn't claim they were. Hope that was clear. They have assisted in preventing newer works (including their own) from entering the public domain. Literally nothing entered the public domain from 1998 until about 2 months ago. For a company that got popular by using public domain works to prevent their own things from entering the public domain seems a bit dirty. That's all.

    I fully agree that creators should be provided with protection when they choose to be (I sometimes release under Creative Commons or MIT for code). I also agree that copyright protection is a good thing - when it's not abused.

  • SVS OG

    @davidhohn know any thing about quotes and copyright? For lettering and calligraphy purposes? Since we are already on that topic. I’ve always wanted to do a happy little book with sayings, but I get overwhelmed with figuring out the wording and what I’m allowed to use.

    About Will’s book... will the paradoy thing be part of the debate? And if it’s changed 10%. I vaguely remember that rule. Or something about it.

  • SVS Team SVS Instructor Pro SVS OG

    @Whitney-Simms That 10% rule idea has gotten so many people in trouble! It's not true at all. I'm not sure where that came from.

    Regarding quotes, I take this from Emily McDowell's website:

    According to US copyright law, the legal rights to a quote belong by default to its author (or speaker). Quotes are considered intellectual property, which is protected under the law. This means that if you're not a quote's original author and you want to SELL something with the quote on it, one of two things must be true:

    1. You have the author's written permission to use their words on your work. If you can't get the author's permission for any reason: they won't give it to you, the quote's owner is a movie studio (yes, this rule also applies to movie and TV show quotes, and song lyrics), they don't answer your email, they're dead, they're super famous, they're in hiding, etc., then Condition 2 must be met in order to legally use the quote.

    2. The quote is no longer "owned" by the author and it has passed into what's known as the public domain, meaning it can be freely used by anyone for any purpose. When a quote passes into the public domain, it's almost always because it's old enough that its copyright has expired. (It doesn't have anything to do with whether the author is dead or alive.) This is where it gets tricky. The following chart is from the University of North Carolina's website and illustrates how complicated it can be to determine whether something is in the public domain or not: Screen Shot 2019-03-13 at 7.29.49 PM.png

  • SVS OG

    @Lee-White oh no! I can’t remember where I heard about the 10% rule. Good to know it’s not real.

    I need a diagram or a picture in order to read that chart. Holy cow! But it does help! Thanks for the info! I need to bookmark all that chart!

  • SVS Instructor Pro

    @SketchyArtish Wrote:
    "Correct, and I didn't claim they were. Hope that was clear. "

    No, that was not clear.
    I now see that what you meant were the works that WOULD have fallen into the public domain IF the 1998 extension that brought the US in line with the rest of the world HADN'T passed.

    "They have assisted in preventing newer works (including their own) from entering the public domain."

    Yes, some works were TEMPORARILY prevented from entering the public domain. But it was a byproduct of granting ALL ARTISTS copyright protection of life +70. It would have been a non-issue if the United States had the consideration to grant its authors the same protections the rest of the world already enjoyed when the United States signed on to the Berne Convention in 1989.

    "Literally nothing entered the public domain from 1998 until about 2 months ago."

    That is true. But again, only because artists and authors in the United States FINALLY got copyright protection consistent with the rest of the world.

    "For a company that got popular by using public domain works to prevent their own things from entering the public domain seems a bit dirty. That's all."

    Make no mistake copyright does NOT last forever. As you noted, one simply has to look at all the works that have entered the public domain this year. Disney's works WILL enter the public domain. They will do so on the same schedule as the rest of the countries who participate in the Berne Convention.

    Maybe it is not as fast as some people would like. But it is just as fair.

  • @Jason-Bowen You could defo say the same about Disney too, making money off other people's ideas. Star Wars that Disney owns now, came from Akira Kurosawa's The Hidden Fortress. - George Lucas copied the story from Kurosawa and put his own spin on it - C3PO and R2D2 wouldn't have existed in the same way, if Kurosawa hadn't created 2 brilliant comedy characters from The Hidden Fortress. @Will-Terry had the idea to turn characters from popular culture into babies and their lifestyles. Everyone feeds off each other for that Eureka moment. It's part of what makes things popular.

Log in to reply