Sunday, March 3, 2013

Copyrights and Characters, Oh My!


I am not a lawyer and not authorized to give legal advice, I am sharing a collection of information from those who are qualified legal council.


Super Mario, Sonic the Hedgehog, and Mickey Mouse; what do you think of when you visualize each of these names? Nintendo, Sega, and Disney. These characters are so recognizable in relation to their fathering company, that they have basically become trademarks. But for the main part Copyrighted.
Trademark: A registered symbol or word used to represent a company or product.
Copyright: Exclusive rights that are given to the creator of an artistic piece.

So our friendly big eared rodent with the red shorts is the face or may I say body of Disney eh? 
Yes, and fans of Disney usually buy anything with his smiling face on it, bringing in lots of revenue for the conglomerate. So that means if someone not affiliated with Disney in anyway, were to put images of mickey on shirts and started selling, that person could cash in on the cartoon icon as well, right?
No sir, that’s a big no-no, because Mickey and along with any other character representing their company are trademarked and copyrighted. The characters likeness and everything about them, that make others recognize them, have been registered with the PTO (patent and trademark office) and the United States Copyright office, which keep unauthorized people from using them commercially. What if you put a Mickey on a shirt that you drew yourself and changed a few things? 
If someone looks at your character and says “hey that’s mickey” anyway, then you’re still in the realm of copyright infringement buddy!
Then are you even allowed to draw characters for others to admire? Of course my friend, that’s called Fan Art, and fan art is protected by your first amendment right of “Freedom of Expression”. What you can’t do is use your unauthorized version commercially or dilute the value of the trademark (make Disney look bad).

You are also protected by “Fair Use”, which asks? How much of the likeness did you take? And to what extent is your commercial use? If both are little, then you should be ok.
Are there any established characters you can use commercially and legally? Well, why would you want to do that! But if a character has fallen into public domain, then you may have a shot. Most public domain works would be characters that apply to the 1909 Copyright Act, so the 28 year contracted term would be over. BUT NOT SO FAST MR. INFRINGER! Public domain characters may not be as public as you think; most characters may have been brought in another form recently and that version copyrighted. An example is the Warner Bros. Entertainment, Inc. v. X one X productions case. X one X productions wanted to use Wizard of OZ characters commercially from 1939 Wizard of Oz advertisement cut outs, because they said the characters in the L. Frank Baum 1900 published book were free domain. Warner brothers, whom owned the rights to the characters due to the 1939 Judy Garland film, did not agree with X One X.  X one X lost the case in district court because the advertising material with the characters on it used by X one X, were protected by advertisement copyright laws. After X one X took the case to the 8th circuit court, they were allowed to use the public domain characters from the book, but as long as they do not resemble the Warner Brothers Film characters.    

Dealing with characters and copyrights is a serious business that can get you a fine or even jail time. Everyone has the right to enjoy characters, but only the intellectual property owner has the right to enjoy the money that comes from the character.
IF IT’S YOURS, PROTECT IT!  IF IT’S NOT, PROTECT YOURSELF!

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