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pikachu face

 
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kurosive
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Joined: 16 Jul 2016
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PostPosted: Sat Jul 16, 2016 6:18 am    Post subject: pikachu face Reply with quote

hello i was wondering if i could just use pikachus facial features (not full face) embedded on a digital hand vector without being sued for copyright infringement? the item would be sold if able.
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AndyJ
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PostPosted: Sat Jul 16, 2016 7:43 am    Post subject: Reply with quote

Hi kurosive,
In my opinion the most distinctive part of Pikachu's face are the red circles on the cheeks, and the white highlights in the black circles which represent the eyes.


But neither of these features is really that original, in the sense that both have appeared in different forms on dolls for more than a century. They are particularly common in Manga characters, for instance.

However, you clearly want to evoke the specific identity of the Pikachu character and this is where the problem may lie.

It is impossible to say where the border lies between what would infringe copyright and what wouldn't. The law says infringement occurs when a substantial part of another work is copied, and generally speaking 'substantial' is measured in qualitative rather than quantitative terms. In other words it refers to the essence or spirit or heart of the work which is copied, and arguably the face of Pikachu might constitute a substantial part of the overall figure, because as with humans, we tend identify people more by their faces than by other physical characteristics.

As if that wasn't difficult enough to navigate around, there is also the separate matter of passing off. Passing off can occur when consumers may believe that something is a genuine product or service from the owner of the intellectual property rights, and where a misrepresentation of this fact by someone else damages the reputation or goodwill of the rightholder. So once again, here is a vague definition which a determined rightholder (I think the Pókemon Company can be described in these terms) can threaten to use to protect their intellectual property.

This then takes us to the last part of your question: 'without being sued'. Large companies with substantial intellectual property portfolios cannot afford to just sit back and let others nibble away at their lucrative licensing operations; to do so would not only threaten the goodwill associated with their brand(s), it also annoys their licence holders who have paid to exploit the characters etc, and see their market being eroded by unlicensed goods or services. So for that reason I think it is more likely that you would get a cease and desist letter over a Pókemon character, than you would over some less generally well-known character, irrespective of the 'substantial amount' test that I mentioned earlier.
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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


Last edited by AndyJ on Sat Jul 16, 2016 3:04 pm; edited 1 time in total
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kurosive
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PostPosted: Sat Jul 16, 2016 8:02 am    Post subject: Reply with quote

awesome thank you for all the information.... it gave me a great insight on what needs to be done.
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