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Help Using Images from Comics

 
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Streaky
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PostPosted: Fri Sep 06, 2013 6:07 pm    Post subject: Help Using Images from Comics Reply with quote

Hi everyone,

I am in the process of establishing my own independent comic website after selling for a while on ebay. The design of my website is nearly finished and, much like the design of this site, the main content is in the middle with clear space at the side.

I was hoping to populate that space with a few key characters taken from comic strips. My idea was to take the original image from a comic strip, take out the colour, background, objects and so on using photoshop and add in some effects to make it look like a sketch, but mainly so there isn't any colour to distract from the core content in the centre. However I just don't know what the law is regarding this. I've certainly seen images that have been taken or based or comic panels I know but I just didn't feel comfortable in doing so, particularly on a website that is selling items. Could anyone help me with this? I'd really appreciate it!
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AndyJ
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PostPosted: Fri Sep 06, 2013 7:26 pm    Post subject: Reply with quote

Hi Streaky,
If you are intending to use recognisable characters from someone else's artwork, then I think you are likely to run into trouble.
The law says it is infringement if you copy a substantial part of a copyright work. A comic strip would undoubtedly be protected by copyright both for the artwork and the text (such as dialogue etc). Thus even though you may intend to remove some parts, the characters which remain will probably constitute the substantial part of the original work. In this context I think a court would treat each panel of a comic strip as a separate artistic work,
You should analyse what you are trying to achieve. If the idea is that readers of your site will recognise the characters for who they are in the original comic strip, then you can see how you are trying to piggy-back on the creative work of others. However if the idea would work just as well if you create your own characters from scratch, then this would be the better option.
This sounds as if it might be similar to fan-fiction but in graphic form. The world of fan-fiction is a minefield when it comes to copyright, because there is no special exemption for derivative works, just that some authors choose not to take any action against those who imitate their work, for a variety of reasons. Perhaps something similar is going on with the other treatments you have seen. The fact that no-one has so far closed down the other sites, doesn't necessarily mean that what they are doing is within the law.
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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
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Streaky
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PostPosted: Fri Sep 06, 2013 8:01 pm    Post subject: Reply with quote

Thank you so much for coming back to me. I thought it might be a problem.

I have actually managed to contact an artist who created an image based on a popular character. He is solely responsible for the image and a few minutes ago said he would allow me to use it, which is great! However, as this image is based on a popular character do I need permission from the company who owns the rights to that character? So for example, if I drew a picture of Spiderman, which was clearly my own and not based on other work, would I need permission from Disney to use it?
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AndyJ
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PostPosted: Sat Sep 07, 2013 9:52 am    Post subject: Reply with quote

Hi Streaky,
I think the main issue is: how closely is the new character based on the original character? To take another example, if the cartoon character was a cat, there have been many examples of cartoon cats (Tom and Jerry, Itchy and Scratchy, Korky, Top Cat etc) and so a derived cartoon character would need to include quite specific elements (say, like Top Cat's boater hat) before it could reasonably be claimed that there was infringement.
But the Spiderman character is relatively individual, and therefore reproducing a character which an average viewer would immediately connect with Spideman, makes the chances of infringement much more likely. Add to that the fact that some rights owners (like Disney) are far more active in protecting their intellectual property than others, and you have a higher likelihood of encountering problems.
As I mentioned earlier, the test is why you want to use this particular character, as opposed to creating a totally original character of your own. Copyright is all about protecting that which is the product of the creativity and personality of the author, and so the more you make your character the product of your own imagination and artistic flair, the less you will have to worry about other people's copyright work.
The fact that in this instance you want to use, with permission, something drawn by someone else, but about which you feel there may still be a problem, leaves you open to liability for secondary infringement:
Quote:
23 Secondary infringement: possessing or dealing with infringing copy.
The copyright in a work is infringed by a person who, without the licence of the copyright owner—
(a) possesses in the course of a business,
(b) sells or lets for hire, or offers or exposes for sale or hire,
(c) in the course of a business exhibits in public or distributes, or
(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
(my added emphasis).
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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
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Streaky
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PostPosted: Mon Sep 09, 2013 4:51 pm    Post subject: Reply with quote

Hi again, sorry for the late reply, went away for the weekend!

Thanks again for the reply on this. I think I might need some further clarification on this.

I understand why you would say create your own characters but the reason for using existing images is to give examples of the type of characters that are featured on the shop. If we drop the comic side of it and focus on a toy shop, at which point can you use images to denote the products you have for sale?

Clearly you can take a picture of your stock and feature that on the website so that customers know exactly what they are buying. Also, say for example you are selling Transformers, shops will use the Transformers logo to display a list of Transformers that the shop might have for sale. Given what you've just posted on infringement I can see problems with both of those examples and yet they are used by every shop I can think of. Any toy store you visit has pictures of their products, and they also use the logos of the companies they stock.

Can you clarify why that would be different? Because I'm also considering stocking toys, so I'm wondering if that would be a possibility?

Also, are we saying that in order to use the artwork of a comic cartoonist, you need the permission on the cartoonist himself and the company who own the character, even if the cartoonist owns the rights to that particular image?

I really do appreciate your help with this as clearly I don't want to start the business off on the wrong foot.
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AndyJ
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PostPosted: Mon Sep 09, 2013 8:48 pm    Post subject: Reply with quote

OK, there are a couple of different strands to this.
Toy Shop. Technically it would still be infringement to photograph copyright works in order to advertise them for sale except when they are artistic works. This exemption is set out in Section 63 of the Copyright, Designs and Patents Act 1988:
Quote:
63 Advertisement of sale of artistic work.
(1) It is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.
(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
For this purpose “dealt with” means sold or let for hire, offered or exposed for sale or hire, exhibited in public, distributed or communicated to the public
For works which are not artistic works (for example musical works or works of literature or drama), it is hard to see how they could be copied for advertising purposes, but assuming that they could, it might be presumed in most circumstances that there was an implied licence from the rights-owner for the retailer to do this. A licence could reasonably be implied if, for instance, the manufacturer or his authorised wholesale agent had supplied point-of-sale advertising material, but had neglected to provide digital versions for use online. Or it was established custom and practice in the market sector for retailers to provide their own material for this type of merchandise. However, don't forget that most goods on sale are not covered by copyright because they fall outside the general categories which are eligible. So for instance if you want to sell toy cars, photographing them in order to illustrate a catalogue would not involve copyright considerations.
In practice most items which you might want to copy for the purposes of advertising will, of course, be artistic works, and these will generally be covered by Section 63. And there would be no trade mark issues assuming that the goods were genuinely those produced by the rights-owner or their licensed manufacturer.

None of that really relates to or assists the earlier problem of reproducing some artwork which possibly infringes copyright in a cartoon character. Since you would not be selling the actual product manufactured by the rights-owner (for example a Mickey Mouse colouring book produced under licence from the Disney Corporation), Section 63 does not apply.

If you decide to stock and sell cartoon artwork produced by artist A, and you are confident that his work does not infringe any intellectual property owned by company C, then all you need is the permission of A to make copies of his work in order to sell them. Ideally you should get this permission in writing as it protects you (and the artist) later if things should sour between you. This agreement should include a statement by A that he indemnifies you against liability for infringement of any third party's IPR.
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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
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