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!
No comments:
Post a Comment