I don't think that would be covered under Fair Use. Since you're using the character to create an entire story.
Penny Arcade gets away with it because they only use 3 panels (more or less) and copyrighted characters aren't the focus of their work.
If your comics focuses on the character, then they could claim that fair use doesn't apply.Possibly, I'm not an expert on US Law, that just seems like the jist of it from what I've read.
The four things about Fair Use:
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aside from the nonprofit thing, fair use is really vague.
if you want to do something just do it with the assumption that the orginal creator can have it pulled anytime and there's nothing you can do about it.
Use Spider-man in a one shot three panel comic strip like Penny Arcade and you're probably alright, especially if done as parody of something.
Use Spider-man as a recurring character in an on-going web comic and you can expect to receive a cease & desist letter from Marvel's attorneys regardless of whether you're making money off the comic or not. And if you ignore them, Marvel is likely to take you to court since failure to defend their copyrights and trademarks can result in Marvel losing them.
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That raises another question, though. What if the character is significantly altered? If I made a Spider-Man comic but his name was John Doe instead of Peter Parker, essentially, is a different character besides for the costume and more or less the same powers. Does that still fall under infringement (assuming still that no money is made)?
Money being made or not doesn't automatically make it fair use. Take AOTS using Batman & Power Girl as a character every so often. They make money on that, but it is Fair Use. Like wise I can draw a picture of Superman and sell it. The first example is general fair use while the second you can find it allowable under the copyright agreement laid out in most comics.
Fair use is more along the lines of what is the purpose of using that character? Parody, Commentary, Critiquing are all considered fair use. Various studios have under various copyright agreements laid out in their products or simply stated in places pretty much added another "fair use" guideline which is vague at this moment but it is more or less fan-boy non-profit stuff is ok, but how far that goes is really questionable and I don't like ability to revoke that at any time for anything they don't like even if it is non-profit, like say Princess Peach Porn. I say if your going to let fan-boys make what they want you shouldn't really limit it with morality nonsense otherwise your going to really bog down the system.
There is a couple of good example of this. There was a fan made Zelda movie that was being made for like 10 years and everyone was like yay, and then when the people brought it out they got it in theaters and charged for tickets and such. It was instantly shut down. It wasn't until the profit making that Nintendo shut them down.
Then there is the 3d Chrono Trigger remake fans were working on that was near completion apparently that SE shut down due to some potential profit risk thing.
while on other hand fan made games like that SMB with Mario being replaceable is perfectly fine.
Batman created in CoH's char maker is a no-no but Batman on AOTS and How it Should Have ended is fine... as well as numerous references to Superman and Wolverine...
Theoretically if you see a tattoo of a copyrighted character a copyright holder could tell them to remove it, but will it ever happen? I doubt it.
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It absolutely is infringement.|
Originally Posted by Mr_Samoa
That raises another question, though. What if the character is significantly altered? If I made a Spider-Man comic but his name was John Doe instead of Peter Parker, essentially, is a different character besides for the costume and more or less the same powers. Does that still fall under infringement (assuming still that no money is made)?
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The *idea* of a boy bitten by a spider who gains spider powers isn't covered, but the *expression* of that idea -- the character's name, what he looks like, etc. -- is protected.
You can make a character who resembles Spider-Man to any reasonable person, as long as every single characteristic is different. Then you might skate under the parody provision. But even then you might run afoul of the lawyers. Decades ago Berkeley Breathed, creator of Bloom County, got sued by Disney for his Mickey Mouse parody in the follow-up comic strip Outland.
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Technically this is not correct. It fails points 1 and 3 of the list.|
Originally Posted by Durakken
I can draw a picture of Superman and sell it.
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However, it is unlikely DC/Warner will do anything about it unless you're doing it a LOT, and publicly.
This is because while companies under the current system DO have to aggressively go after violations they know about, they often tend to ignore fan work, as most of the time they can claim they "didn't know about it".
It all boils down the the requirements of trademark that the owner must make reasonable efforts to protect their work.
Currently, the courts find that a requirement for owners having to take legal actions on violations they didn't know about to be, well, unreasonable.
However, if you become too big a blip on their legal radar, they will launch the rabid lawyer dogs.
-np
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Unless it's Disney.
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Originally Posted by Durakken
Theoretically if you see a tattoo of a copyrighted character a copyright holder could tell them to remove it, but will it ever happen? I doubt it.
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No. |
Originally Posted by NinjaPirate
Technically this is not correct. It fails points 1 and 3 of the list.
However, it is unlikely DC/Warner will do anything about it unless you're doing it a LOT, and publicly. This is because while companies under the current system DO have to aggressively go after violations they know about, they often tend to ignore fan work, as most of the time they can claim they "didn't know about it". It all boils down the the requirements of trademark that the owner must make reasonable efforts to protect their work. Currently, the courts find that a requirement for owners having to take legal actions on violations they didn't know about to be, well, unreasonable. However, if you become too big a blip on their legal radar, they will launch the rabid lawyer dogs. -np |
As I said, this is because various companies have come out and said you're allowed to use their products in certain ways. This as well as their actions constitute a contract. Though that would be hard to argue with most companies I know of 1 company that has gone on records and said this. That's nintendo.
But we're talking Superman, and other Comic book characters here. Well, Almost all comics I know of have their copyright and what your allowed to do with their trademarked characters in every comic. Part of that is the allowance of independent drawings containing their characters to be sold.
I forget the exact language used but it's in there.
You can also paint a picture of say Superman and it'd still be considered fair use due to it could be construed as commentary.
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They did however get sued and forced to take down their American McGee's Strawberry Shortcake parody thing however many years back that was. I seem to recall it was because it negatively impacted the image of the brand or some other such silliness.
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Originally Posted by Zikar
Penny Arcade gets away with it because they only use 3 panels (more or less) and copyrighted characters aren't the focus of their work.
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You are partly correct and I apologise - some companies may ALLOW fan use. They usually cover themselves with an open contract posted to their website or the like.|
Originally Posted by Durakken
No.
As I said, this is because various companies have come out and said you're allowed to use their products in certain ways. This as well as their actions constitute a contract. Though that would be hard to argue with most companies I know of 1 company that has gone on records and said this. That's nintendo. But we're talking Superman, and other Comic book characters here. Well, Almost all comics I know of have their copyright and what your allowed to do with their trademarked characters in every comic. Part of that is the allowance of independent drawings containing their characters to be sold. I forget the exact language used but it's in there. You can also paint a picture of say Superman and it'd still be considered fair use due to it could be construed as commentary. |
This is not Fair Use. This is a contract. The two are not the same.
Fair Use, specifically DOES NOT NEED PERMISSION from the owner.
Fair Use is limited to, really: A) commenting on the work, such as a movie review, B) transforming the work, such that it can be said that the new result stands on it's own even without the previous work, and C) works of parody.
If your picture of Superman was done as part of a work discussing the character, it's A. If the picture was using the Superman character to address some political, social or other issue, it's B. If it was just making fun of Superman, it's C.
If you picture of Superman was just straight up him standing there, not being ironic or funny or anything, then unless covered by any "fan contracts" DC might allow, it's flat out just a violation as soon as you transfer it to anyone.
Otherwise it'd be legal for me to draw Superman, slap the drawing on a shirt, and sell them nationwide.
-k
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Alright, I think I've got a stronger hold on this now. Thanks everyone!
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Not quite correct, they were just sent a "cease & desist", they weren't actually sued.|
Originally Posted by Oliin
They did however get sued and forced to take down their American McGee's Strawberry Shortcake parody thing however many years back that was. I seem to recall it was because it negatively impacted the image of the brand or some other such silliness.
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They were going to fight it but decided not too. No legal action was ever taken by either side at any point, nor was PA "forced" to take the image down per se.
The image has since been published in their latest anniversary book. They have considerably more money and clout these days to fight, should something like that ever happen again.
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No. This is definitely not true.|
Originally Posted by Mr_Samoa
Would someone mind clarifying for me exactly how Fair Use works? In particular, how it works in regard to webcomics? It's my understanding that, say, Penny Arcade could introduce Superman or Wolverine or any other copyrighted character as recurring characters if they wanted to, as long as they made no money off of their likenesses or names. So if I wanted to, I could make a whole comic about Spider-Man and put it online as long as I made absolutely no money off of him. Is this true?
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The Fair Use doctrine falls under the very limited partial usage of a copyrighted work for purposes of "commentary, criticism, news reporting, research, teaching or scholarship."
Comics like Penny Arcade and cartoons like South Park can generally make claims of parody and of commentary (i.e. they are making a general commentary on an issue and using a copyrighted work as an example).
When this isn't the case, there's enough difference in their "likenesses" of those characters and the situations are severely limited in what they do with those likenesses. When South Park featured a ticked off Mickey Mouse kicking the tar out of one of the Jonas Brothers, he was always referred to as "Mr. Mouse" or "The Big Cheese" and never as "Mickey Mouse," nor did he look exactly like Mickey Mouse.
So, basically, all of those fan fiction stories you can find out on the internet? Yeah, those are violations of copyright, and some copyright owners have pursued cases against them when they're found (George Lucas is notable for this).
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Brian Clevinger of 8-Bit Theater fame had a very good essay on the topic on the old website, but it (and other great essays, and all of the cool side materials) were eliminated in the redesign.
EDIT: Courtesy of Mister Peabody.
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It works however the corporations with their phalanxes of lawyers on salary say it does, as most normal people lack the resources to defend their rights.
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Originally Posted by Mr_Samoa
Would someone mind clarifying for me exactly how Fair Use works?
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FWIW ...
One generally shouldn't pose complicated legal questions on the Intertubes to a group of random individuals. Eventually, someone will give you the answer you want, which isn't always the correct answer.
Hillarity often ensues.
Also, when it comes to intellectual property, many 'net denizens have have very, very big axes to grind so that many responses skew towards, frequently non-sensical, extremes.
Would someone mind clarifying for me exactly how Fair Use works? In particular, how it works in regard to webcomics? It's my understanding that, say, Penny Arcade could introduce Superman or Wolverine or any other copyrighted character as recurring characters if they wanted to, as long as they made no money off of their likenesses or names. So if I wanted to, I could make a whole comic about Spider-Man and put it online as long as I made absolutely no money off of him. Is this true?