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Super hero copyright

 
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Angela1
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Location: Ramsgate

PostPosted: Wed Jul 16, 2014 5:27 pm    Post subject: Super hero copyright Reply with quote

Hi,

I have had a local artist design some super hero style designs. They are minimalist, so they look similar to the super heros but not the same. We are a small printing company and we wanted to put the designs on some of our personalised products. We own the rights to these designs. Do you think that will be infringing on copyright law? We don't want to be breaking any laws we just want to put the fabulous designs on our items. I have looked through this forum but can't see anything that relates to this type of request.
Thanks in advance
Angie
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AndyJ
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PostPosted: Thu Jul 17, 2014 6:40 am    Post subject: Reply with quote

Hi Angie,
The key word in copyright law about infringement is 'substantial':
Quote:
16 The acts restricted by copyright in a work.
[...]
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of itó
    (a) in relation to the work as a whole or any substantial part of it, and
    (b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.

Generally speaking it would be up to a court to decide exactly what constituted a substantial part of another, previous work, but there are a few guidelines based on earlier cases. The measurement tends to relate to the quality rather than the quantity of any aspect which may appear to have been copied. So this would include things which were the essence or spirit of the original, say, Batman's bat mask or the yellow and black logo on his chest, or Superman's 'S' logo or Spiderman's web pattern on his costume. But it wouldn't apply to the fact that they wear boots, because virtually all superheros will wear these. Capes are another costume element which are fairly ubiquitous. The choice of colours to should be fairly safe because the popular ones like red and blue for instance have been used on characters such as Superman, Captain America and Wonder Woman, to name but three. And of course features which are shared by several characters will be less likely to be 'substantial' to any one character, other than in tiny details. So, for instance, masks are generic, but the way that Catwoman's mask (as worn by Michelle Pfeiffer) is cut and repaired would be a detail which might be substantial as far as that character was concerned.
So I suggest the best approach would be to show you designs to an age range of people and ask them to say who the figures remind them of. If you keep getting the same name back, it suggests that your design has captured a feature which is a substantial part of that particular character's image. However if you get lots of different answers, you have probably achieved a generic superhero which is recognisable as such, but without infringing any one character.
That's how the law would approach the subject.
But you also need to consider how the rights owners of superhero figures might think. For instance, Marvel Comics and DC Comics own the majority of the well-established characters and they protect their intellectual property rights with vigour. It is possible that if they became aware of your superhero, their legal department might send out a speculative letter demanding that you cease using your character, with no real legal basis for their claim, but because they can afford to commence litigation and hope that you cannot. I mention that, not because I think it is likely to happen, but because that is the sort of real-world behaviour which could pose a problem for you in terms of time and money, which no amount of prior legal advice can prevent. As I say, I don't think this is very likely to happen, but you should at least consider how you would handle such a situation before embarking on too much investment in your character.
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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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Angela1
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PostPosted: Thu Jul 17, 2014 8:50 am    Post subject: Reply with quote

Hi Andy J

Thanks for the advice. I can see that you know your stuff. We have gone for the minimalist look to try to avoid the features being too similar. But I think we may be a little close to the mark. Can I send you an image of them and see what you think? At this stage we can make alterations to the designs. I donít fancy taking on the big guns of marvel and DC, I just want to try and sell a few more products!!

Thanks for the advice, it is appreciated.
[/img]
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AndyJ
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PostPosted: Thu Jul 17, 2014 5:13 pm    Post subject: Reply with quote

Hi Angie,

To be honest my opinion really wouldn't be worth the effort of you sending the image, and I certainly wouldn't want you to make a decision based (even in part) on my views.

Try my suggestion of getting a number of people of varying ages to say if your image reminds them of any particular superhero. If any one hero comes up time after time in the replies, then try and isolate whatever characteristic is leading people to this view, and change it.

One of my reasons for raising the Marvel/DC comics factor was that, in the US the concept of copyright protection for all aspects of a cartoon character is much more developed than here in the UK, where I believe the courts would be looking for very significant similarity before they would find there had been infringement. So given that those two companies are based in the US they might try to judge matters against the US yardstick. But that doesn't mean that they have any monopoly over all superhero characters, and you entitled to create your own.

The other way of looking at this is to ask yourself why you want to feature a superhero for your company. I imagine that you might want to give the impression to potential customers that you can save the day for them, rescue them from their printing problems and be there speedily when they need help. That would be entirely legitimate and understandable. However, if in reality you are trying to say to your customers, 'don't make me angry or I'll turn green and burst out of my shirt' then clearly you would be trying to tap into a specific meme and this could be classed as passing-off, ie trying to ride on the coattails of a successful, more well-known franchise. Obviously my second example is facetious, but hopefully you get the idea that motivation can be significant. So if a court felt that you wanted the Superman factor, but without paying for a licence then they would be more inclined to find there had been infringement than if your intentions had been demonstrably unrelated to any specific superhero.
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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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