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The Use of Darth Vader in a Comedy Sketch

 
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James
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PostPosted: Sat Jan 05, 2013 11:22 pm    Post subject: The Use of Darth Vader in a Comedy Sketch Reply with quote

Hi, I joined this forum because I wanted to make this post but after poking around it looks like this website and its forum will really make a great resource for future creative projects! So, on to my query.

My colleague and I want to create a comedy short featuring the character Darth Vader. I will be playing Vader wearing an official Darth Vader helmet and chest box but the rest of the costume will be made by myself and a seamstress in my local town. The video will insinuate that practitioners of the force posses an ability that is not established in the movie or book franchise. There will be no speech in the video.

So, we want to monetize this video as part of a YouTube partnership program. We have full permission to use original music from a fellow YouTuber. Is it legal to use the character of Darth Vader in this context and monetize it with YouTube revenue sharing without obtaining a licence from the copyright owners (LucasFilm/Disney). I read a post that suggests to avoid using characters holding such a caliber of fame but it is integral to the video that Darth Vader appears in it.

Examples of a video that is monetized as part of a YouTube partnership program featuring Darth Vader:

Cello Wars - The Piano Guys
Vader VS Hollywood - Comedy Thunder

You have to search them to see them because, as a new user, I cannot post links.

Thanks in advance for any help that you can give me (whether it be good or bad news).
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AndyJ
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PostPosted: Sun Jan 06, 2013 11:14 am    Post subject: Reply with quote

Hi James,
It's amazing how often Darth Vader comes up in this sort of question.
You will no doubt have already seen these two threads:
http://www.copyrightaid.co.uk/forum/topic1118.htm
http://www.copyrightaid.co.uk/forum/topic894.htm
and possibly more tangentally this thread: http://www.copyrightaid.co.uk/forum/topic1298.htm,
so I won't go over old ground more than is necessary.
There are two ways of looking at this, legally and pragmatically.
In the UK we have very little caselaw on which to gauge the court's view of the law here. My view is that since the main articles of clothing which most readily identify Darth Vader (the helmet and chest box) are licensed items, you are reasonably safe in portraying DV by wearing them. This would certainly be the case if you were attending a fancy dress party or a Star Wars convention. The only slight worry would be that by putting your performance on YouTube in this way you are most definitely 'performing' the character in public. Ironically although the protection for film characters is generally stronger under US law then here in the UK, it is balanced by considerable caselaw which protects parody, something that not specifically permitted as an exception under UK law at present. On balance, I think that legally speaking your performance would not be infringement of copyright under UK law. But as noted in the other threads, be careful about the trade mark aspect.
Pragmatically I think you may face a problem. As has been mentioned in other threads Lucasfilm protect their intellectual property rights with vigour. This means that you can probably expect them to issue DMCA takedown notice to YouTube which although it may have little or no legal merit, will still cause you problems. They may well also send you a cease and desist letter, again based more on bluff than actual prima facie grounds for an infringement action. Clearly, if either or both of these things occur you will need to decide how to deal with them at the time. One of the reasons that we have very little caselaw on this type issue is that individuals faced with the prospect of expensive litigation by the big film companies often settle outside the court for good and obvious reasons, so the real legal issues are not tested.
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typonaut
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PostPosted: Wed Jan 09, 2013 8:51 pm    Post subject: Reply with quote

Ainsworth v Lucasfilm found that, in regard to a stormtrooper helmet, there is no protection in the UK for the designs of that part of the costume (and other props) used in the original Star Wars film. A corresponding case in the USA found that there was copyright protection for these items (although this was undefended and therefore a default judgement).

It probably follows that the same conclusion would be reached with regard to the costume/designs used for Darth Vader's character, ie that they are not protected in the UK, but may be elsewhere.

I'm not sure what Andy's point about the licensing of the Darth Vader costume is, but I suspect that its use in a private context would be different to that in a commercial context (not least due to the interest of LucasFilm in protecting its IP, whether legitimate or not).

As Andy is strongly hinting here, the path you should take should probably be driven by pragmatism rather that the opinions you might receive about copyright (or trademark) law. The simple position in the UK is that copyright does not protect characters (or even plots), so you are almost certainly in the clear legally. However, do you want to spend the time and effort on this project only to spend yet more time having a debate with the lawyers of a large corporation about the legal issues?

What you may be better advised to do is imply the image of Darth Vader, rather than actually use that character directly. That way you may have created something new too.
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AndyJ
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PostPosted: Wed Jan 09, 2013 9:30 pm    Post subject: Reply with quote

Hi Typonaut,
The point of my comment about those parts of the Darth Vader costume which were "official" (to quote the OP) was that assuming these items were indeed made and sold under licence from Lucasfilm, then there could be no question that wearing costume (under any circumstances, whether privately or on Youtube) would in any way infringe copyright. This is different to the Ainsworth case, because there, Lucasfilm disputed Andrew Ainsworth's right to market the stormtrooper helmet in the first place.
Even if the helmet and chest box to which the OP referred were not made under licence from Lucasfilm, the decision in Lucasfilm v Ainsworth would almost certainly prevent Lucasfilm from bringing an action against the OP for possessing or dealing in an infringing copy (contrary to s.23) firstly because the Court of Appeal established that the stormtrooper helmet was not a work of artistic craftsmanship, and secondly because Lucasfilm could not show that it owned copyright in the items in the first place.
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typonaut
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PostPosted: Wed Jan 09, 2013 9:40 pm    Post subject: Reply with quote

AndyJ wrote:
...was that assuming these items were indeed made and sold under licence from Lucasfilm, then there could be no question that wearing costume (under any circumstances, whether privately or on Youtube) would in any way infringe copyright.


I'm not altogether sure that's true. We're not talking about non-commercial distribution on YouTube, we're talking about deliberate, commercial release. While that may not give rise to a suit for copyright infringement directly, one can see that it may give rise to claims of trademark infringement, or passing off.

Not copyright, but having the same effect - legal liability.
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AndyJ
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PostPosted: Wed Jan 09, 2013 10:03 pm    Post subject: Reply with quote

Yep,
Hence my comment "But as noted in the other threads, be careful about the trade mark aspect. "
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niker1308
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PostPosted: Wed Feb 10, 2016 9:12 pm    Post subject: Sketch Reply with quote

Is there a difference if we sketch characters of Star Wars online?
Thanks
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