View Full Version : Illustrating Copyrighted Characters: Questions

04-12-2008, 10:31 AM
A friend and I have been having a chat regarding the legality of depicting copyrighted characters in art, and I am looking for those wiser than I to provide some help. Below is a fictional situation I have provided to help with some answers. I know the answers to some of the questions, but have provided them anyway to demonstrate the escalation of the problem in different situations. Also, I know that the safest way to avoid any legal trouble is to not depict protected characters at all, but for the purposes of this thread, please indulge me.

I have created an illustration (acrylic on canvas board) for a magazine article about the competition between the Nintendo and the Playstation. In the illustration, Mario and Lara Croft are wrestling. Mario and Lara Croft are characters protected under copyright. I retain all ownership over my art; the magazine is only given limited printing rights. I live in the U.S., and the magazine is published in the U.S.

A - Can I be paid for providing the illustration to the magazine?

B - Can I sell the original painting?

C - May I give away prints of the painting?

D - May I sell prints of the painting?

E - May I make buttons, t-shirts and stickers of the illustration and sell them?

F - Can I sell a booklet of my illustrations that includes this image?

G - What if I create a painting of the Care Bears that has no editorial purpose… may I sell that painting? (*Assume that the Care Bears are protected.)

H - May I sell prints of the Care Bear painting?

Thanks for any insights you may provide.

Marvin Miller
04-12-2008, 11:43 AM
Keep in mind I am not a media attorney, but here's my take on it:

A) Liability for printing the illustration would probably fall on the responsibility of the publisher in this case. Under the parody clause of the law, I think you would be OK.
B) It's iffy on this one, it could still be considered parody and also depends on the contract signed with the original publisher who bought the rights to your work.
C) Still depends on the contract from the publisher, but I don't think this would be a problem.
D) See B above.
E) See B above.
F) See B above.
G) In this specific example, the Care Bears are licensed through American Greetings and copyright permissions would need to go through them to sell original artwork based on their licenses.
H) See G above.

As I always say in these cases, always consult a professional in the field before taking any advice on the Internet.

04-12-2008, 11:33 PM
Be very careful, what Marvin says is true unless the publisher contract says you agree that by signing you are the copyright holder of the work.... this clause basically transfers the legal situation to you, the person who submitted the work.

<edit - added>
Well the publisher 'could' also sue you for their printing costs if they are forced to pull the media due to your items turning out to be.... copyrighted and not by you.

Granted... they cant get money if there is none... but still, no one wants to be sued. Usually publishers are smart enough to know whats okay to print and whats not. But things do slip through. Don't just think that if they agree to run it... they know best. Thats a big mistake, trust me.

This is a VERY sticky situation.... be careful!!
<end edit>

My rule would be, if you have doubts.... DON'T DO IT!

04-13-2008, 07:44 AM
I would say a flat out NO to

The chracters and likeness are copyright. Selling an original art representation of a copyright image is a grey area at best. Because there is debate over if the purchase is about the image or the skill of the artist. Which is the larger value of the piece? Selling the image to a magazine can be ambiguous as well. The magazine isn't making money selling the paradoy image. They are making money selling the article to which the image is an added element. However a print derivative of an original art piece will be more about the image and therefore the copyright protected image depicted. The owners of that copyright will want a say in the content and how the character is portrayed as well a payment for use of their character.

Then again...what the hell do I know? I'm no lawyer.

04-13-2008, 05:21 PM
I'm no lawyer either, but I got the following from some boilerplate illustration contracts. A couple people familiar with law (and one well respected lawyer, though he didn't have the time to really give the contract a good run through the wash, as it were) have looked and agreed that I should be covered in all but the most outlandish of situations that may result in lawsuits from copyright infringement (at the request of the client), but again that's no guarantee until your specific attorney reads and OK's your contracts. And of course, if you're given free reign, I would suggest shying away from copyrighted imagery or characters in works to be published, but I am admittedly paranoid about this stuff.

The clause reads as follows-

Client shall indemnify and hold harmless Maxx Designs against any and all claims, costs, and expenses, including attorney's fees, due to material included in the Work at the request of Client for which no copyright permission or privacy release was requested or uses that exceed the uses allowed pursuant to a permission or release.

It goes on from there to basically reiterate the terms with regard to inclusion and integration of third-party solutions, but I'm mostly a Internet design and creation house these days, so that's more for cart software and the like.

Not sure if it helps answer any of your specific questions, but it might be something to consider for the future.

04-13-2008, 07:36 PM
My big questions really circulates around fair use. Most of us have picked up a video game magazine and seen an illustration of Mario, Snake, Sonic, etc. that was not created by the folks that own rights to the character. Since these magazines are delivering news, they seem to be covered under fair use. We've also seen editorial cartoons in newspapers where a copyright protected character makes his/her way into a strip (though these have been challenged at times.)

The "fair use" entry on Wikipedia is interesting (and obviously completely true because it's on the interweb :) ) but I may try and track down a lawyer for some more practical advice.

Thanks for your comments everyone... feel free to keep them coming.

04-13-2008, 08:03 PM
Interesting topic and one that probably should be well thought out, especially if a lawyer could pipe in with actual facts of law.
I have heard time and again that in the 3d world a mesh is not a copy of someone elses if there is a slight difference in the design. If this is true, which I doubt, that would also mean that someone could paint or draw a copy that is not exactly like the original to be their own. This would also apply to all the music artists out there that sing or play their version of a copyrighted music peice.
Where exacly does "Fair Use" come into play? How safe is any of my work if I put it on the web for say critiqing?
Very interesting subject which I would really love to know where do we really stand in this battle. My bet is the one with the most money wins.

04-13-2008, 08:23 PM
Silkrooster, I think you're probably absolutely right on the eventual winners of any debates on the subject. Which will typically leave the individual artists in the ... well, non-winners camp when corporations are involved. :grumpy:

As for the fair use situation, it seems to be such a gray (or at least misunderstood) area - I remember completely believing the 10% rule. You know, as long as the image you create is at least 10% different from the original, you're clean! Last I heard, that was debunked with a chuckle. If not a chortle. But it didn't quite reach guffaw levels, as I remember.

It would be great if a lawyer could pipe in and at least expound upon some of the actual legalities, if not fully explain some of the limitations of rights and issues inherent in the questions.

04-15-2008, 04:18 PM
The answer to all of the options is No unless you had a solid claim to parody that could pass the four fair use factors. Even with it, you would probably get sued. Look up Campbell v. Acuff-Rose Music, Inc. 2LiveCrew was sued for a parody on Pretty Woman and won.

There is no 10% rule but there are no black and white rules either. A search on fair use factors can give you a better idea of how fair use is determined. Another good case to search for is Jorie Gracen vs The Bradford Exchange and MGM.