I get asked quite a bit about the legality of selling the Limited Edition prints I have been offering the last few years. Having just got back from Comic-Con, the issue of selling images featuring characters you do not have the copyrights to is an obviously major one. Walking through the exhibit floor, you see booth after booth selling products based on or featuring characters they do not own the rights to. Professional comic book artists do private commissions of Superman, Spider-man or whatever character they are asked to draw. Sort of professional artists sell posters or prints of Batgirl or the Walking Dead players or other characters they do not own the rights to. The big question is, is this legal? The answer is very simple. No, it absolutely is not legal. It is copyright infringement. Unless you have been granted permission by the copyright owner, you cannot draw or sell images of their copyrighted characters. That is the letter of the law.
The reality of how these laws are applied it is little bit different.
The above video is a presentation by Josh Wattles, who is the adviser in chief to deviantART and a lawyer who has done a lot of work on copyright issues. It’s very long, but the information in it is invaluable for understanding why people at Comic-Con and other places get away with what they get away with, and the legal precipice they are balancing on by doing that they do. The short version is they get away with it at the whim of those who do own the copyrights, who could choose to put the legal hammer down if they so wished, but they do not with the understanding that good will among fans and the copyright owners is worth more to them than taking the legal action they are entitled to take.
How does this all apply to what I am doing? If there is a loophole in copyright law it is parody, and because what I do is making fun of the characters and commenting on them through visual humor, my prints are defensible under the parody exception. That’s why I do not include any trademarks in the art I do, like the Doctor Who or James Bond logos. I also don’t use any trademarks in the name of the print. It’s all visual humor and caricature. Finally, these are limited edition prints, not open ended poster products. That’s an important distinction when it comes to the claim of parody with any property… limited edition prints are considered “fine art”, and that is an acceptable form of expression opinion. Products like T-shirts, coffee mugs or mousepads are not.
So, are my parodies of copyrighted characters ok under the letter of the law? No one knows for sure unless the case goes before a court and they decide. Having a decent defense argument does not guarantee you win that court case. It’s certainly a lot more defensible than someone selling realistic drawings of Captain America as posters. The industry has a tolerance for this kind of thing, but it is definitely “swim at your own risk”.
If you are interested in hearing a real life view of these copyright issues, the hour of time this video takes is well spent.
See full post here: Tom's MAD Blog!2014-07-29.