@DLArmantrout Really interesting! I am always amazed by how specialized each industry can be. Not that I should be surprised -- illustration is full of all kinds of niches.

My knowledge on copyrights is due to a personal/professional interest in it. No formal training, just a lot of late night reading of IP law blogs. With that in mind I always want to be careful to note that mine are only opinions.

As for the Boldly Go case -- from what I gathered CBS/Star Trek have deemed this a tolerated infringement. They haven't issued a takedown notice for the book.

I do wonder about defending mash-ups under the Fair Use Defense though. The judge felt in this case that it was "sufficiently" creative. But that is arguably a personal judgment call. Would that same judge always think mashups of two IP's are creative enough to warrant protection under the Fair Use Defense?

Congratulations on the new course!
It has been a pleasure to watch your career grow over the years. I'm a huge fan of your work!

@DLArmantrout Check out this blog post about the "Boldly Go" case.
Interesting reading! A nice play by play of the factors considered in a Fair Use Defense.

https://fanfilmfactor.com/2019/03/12/take-that-dr-seuss-trek-mash-up-is-legally-fair-use/#more-13934

That said, I read this with my customary sense of caution.

Did the judge just declare open season on independent artists who will now have their work ripped off because a staff designer at a large corporation "transformed" them? (Target is one company I've research that blatantly does this)

Or will thousands of less creative artists (than David Gerrold and Ty Tempelton author and illustrator of "Boldly Go") read this ruling and confidently start pushing out their infringements because "Hey, I changed it!"?

I'm always reminded that business works both ways. It's finding that balance that's the trick.

Edit: I checked your profile and see that you are an IP attorney. Can I ask what area you specialize in?

@DLArmantrout Great reference! Now, for fun check out this Fair Use Defense via Parody case that went against the infringer:

https://www.ipwatchdog.com/2017/04/16/cat-not-in-the-hat-dr-seuss-o-j-simpson-murder-trial/id=81868/

Condensed Version:
The district court found that the Dr. Juice book infringed Seuss copyrights. On appeal, the creators of Dr. Juice claimed fair use based on parody. The Ninth circuit disagreed ruling that the Dr. Juice book was merely a retelling of the OJ murder trial:

"Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. ... [The creators of Dr. Juice] merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat!) "to get attention" or maybe even "to avoid the drudgery in working up something fresh."

I take this to mean that it is not merely up to an artist to change something -- but to change something for a very good and specific reason that actively comments on the original work.

@sigross Interesting case. I read your post thinking it was a recent case but this is from 2003 (emphasis for those just tuning in)
Because decisions like this are not universal and are decided on a case by case basis, I also wanted to see the image. Which I've included below:

And to provide a counter point, I came across this article as I was googling the image:

https://via.library.depaul.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1100&context=jslcp

This paper argues that the court's logic in this case was flawed as it pertained to Rick Rush's First Amendment defense.

Lot of reading but I'm intrigued by the judgement against Wood's trademark infringement claim. Basically Woods was claiming that the print make it look like he endorsed the image -- which is essentially what trademark protection provides.

But the court determined that although Woods had trademarked "TIGER WOODS" that applied only to the words and not to his face.

So that's super interesting!

As for the first amendment and the message Rush claims to communicate through this piece -- I would have to read more and dig into the details, but I tend to disagree with the article. I would say there is an argument for creativity in the Tiger Woods print.

BUT what I do take away from this is that if you are going to create and sell artwork of celebrities or intellectual property that you don't have license/permission to -- you'd better have a REALLY solid handle on the argument why you are doing so.

@AnnaDaviscourt No worries! A Seattle/Portland conference happens every year in early May. Last year it was in Portland (technically Wilsonville), this year in Seattle, next year Portland again.

I plan on going. The Washington conference is always a good one!

@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.

@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.

https://corporate.findlaw.com/intellectual-property/parody-fair-use-or-copyright-infringement.html