@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.