Little Heroes Book under IP dispute

  • Pro

    @evilrobot Oh damn, didn't know about canon baby hero characters! It certainly seems more of a problem now...

  • SVS Team SVS Instructor Pro SVS OG

    @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.

  • @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!

  • @davidhohn

    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...

    Cry into cash

    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!

  • @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.

  • @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.

  • @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).

  • @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.

  • @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
    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
    '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.

  • @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!

  • @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 😃

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

    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.

    I wonder how many people read that quote Lee posted and think:
    "Ah! So as long as I don't sell more than 6 figures worth of infringing products Disney won't bother with me!"

    Or even more dangerously:
    "Ah! So as long as I don't sell more than 6 figures worth of infringing products it's legal to sell my infringing fan art"

    I understand how this thinking happens. Unfortunately it is usually based on an ignorance of copyright law. And as we all know, ignorance is not an excuse. Especially among professionals.

    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?

    The answer to this is not cut and dry. It really depends.
    The best way to offer an opinion on the example you cite is to see the actual work.

    In my opinion and understanding of copyright law here's why:
    If the prints look significantly similar to any of the various editions of Harry Potter published by any of the various publishers around the world then yes, they are an infringement. The copyright to those depictions belong to the illustrators who created them.

    If the prints look significantly similar to the movie versions of Harry Potter created by Warner Bros, then yes they are an infringement. In that case Warner Bros has Trademarked their version of Harry Potter.

    Now, if the prints are uniquely different from all those multiple versions and only rely on the original text written by JK Rowling, then it is NOT a copyright infringement. This is because the copyright to a written description of a character and the copyright to a visual depiction of that same character are two completely separate pieces of intellectual property.

    The downside to Harry Potter is that it has been trademarked. The bar for infringing on a trademark is much lower than the bar for infringing on a copyright.

    But before that makes a whole bunch of people really pissed off -- the other side of trademarks is that they can be lost much more easily if the company does not actively use the trademark. This is as compared to copyright which is automatic and lasts for your life +70 no matter if you are actively using/enforcing your copyright or not.

    What does this mean for your average Harry Potter fan art? -- Because there are so many legally licensed versions saturating the popular culture right now it is highly likely to be deemed either an copyright infringement or a trademark infringement.

    So, if we start from a position that Harry Potter fan art is technically an infringement, then you need to determine if it falls under the Fair Use Defense.

    You mention "parody". A parody exists when an illustrator imitates a serious piece of work for a humorous or satirical effect. But for a successful Fair Use Defense numerous other factors are taken into consideraton.

    I did a quick search and came across this article. It goes into parody specifically, fair use in general and then does on in depth discussion of a rap song/remix that utilized parody as the crux of a fair use defense.

  • @davidhohn I don't think I was coming across as ignorant, I was merely repeating what was said in the reply to my previous post, not that I agree with it in any way and I can also see why people may be NAIVE (not ignorant) to think that that means they can go ahead and sell Disney fan art. I don't, and probably never will, get into fan art or sell it because I'm not that interested in it.

    Thank you for your detailed reply to the second part of my question though, I think the few illustrators I was talking about having used the books to inspire their pieces of art rather than using the film 🙂

  • @hannahmccaffery I am so sorry!
    I did not mean to insinuate you are ignorant! I would never purposely insult someone on public boards, and I try quite hard not to do it by accident.

    But despite my best intentions, it can still clearly happen sometimes.

    Your reply merely made me re-read Lee's original post from the point of view of someone who fundamentally believes that Fan Art is "legal". And I was mentally exploring how they might read that information.

    And I'm glad to know I did't put my foot in my mouth on the second part of my reply! But keep in mind, mine is just an opinion. I am not trained in intellectual property law. For information you should actually act on, please consult an attorney.

  • @davidhohn Haha it's okay, sometimes things come across different in text form don't they - plus I'm a sensitive sally and all this copyright stuff confuses me!
    Yes it can happen sometimes, I've definitely seen evidence of it myself from people I know or people on social media who blatantly just sell fan art without a second thought!
    Well you seem to be VERY clued up on the subject and you've definitely provided a lot of useful information, so you've been extremely helpful to us all by telling us everything you know 😃

  • SVS OG

    Hey @Lee-White , I think having a class on SVS for copyright and trademarks would be pretty awesome. Can you guys hire an attorney like you can another artist. At least so we all understand how to deal with our own IPs? I know that if you have serious issues or specific questions hiring your own attorney or using the place @davidhohn would be the best thing to do.

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