Joined: 29 Jan 2010
|Posted: Mon Jan 12, 2015 8:25 pm Post subject:
It's difficult to give specific advice about this because it's a matter of degree, or as the law puts it, whether a substantial amount of the original is being copied.
The problem is that you are setting out, to a greater or lesser degree, to copy someone else's creative work, rather than coming up with an entirely new idea of your own.
There are two intellectual property rights which you need to consider, copyright and design right. As already mentioned copyright is infringed when a substantial part of (in this case) a work of artistic craftsmanship is copied. Substantial tends to refer to the essence of the work, its main qualities or distinctive features etc. Design right is infringed when something is made to the same design as the protected work. Here the test is more subjective as it is based on the impression formed by an informed user when viewing the alleged copy. Design right can be infringed even if the second person was unaware of the original design and had not set out to deliberately copy it, whereas independent creation is a defence to copyright infringement. There is also the possibility that the original character may be registered as a figurative trade mark as many popular cartoon characters are, and if this is the case with the character you have chosen, this might give the rights owner a third form of protection.
You mention that the figure you want to use as inspiration is "a well known character", although I am unclear whether it is embodied in a figurine or some other format (say a character from a cartoon film). If the character only existed in two dimensional form, as with a film or TV character, then design right would not apply unless the artist or author had registered the design. However copyright would apply whatever the form of the original, other than a verbal or literal description, which it doesn't sound as if this character is.
I think the first thing you should do is see if the original character is subject to any kind of licensing regime by the rights owner. If it is then you can expect to be challenged if your figure bears a discernible resemblance to it.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007