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Copyright Creation

 
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oldentim
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PostPosted: Mon Mar 02, 2015 12:12 pm    Post subject: Copyright Creation Reply with quote

Hello there,

I am about to launch a new business and have a nagging concern that I might be doing something wrong.

1) I am putting together a website with animated e-cards. This is a membership site where every member can use as many e-cards as they like over their membership term. All the illustrations and animations have been created by myself.
However a few are based on Disney cartoon animals. Though they are not identical they have been redrawn but are similar.
Q) Is there a problem with this?
My site will be launched in the US and seen worldwide. I am based in the UK.

2) Similar images will be printed and sold through Zazzle from my site.

Thank you in advance for you help

Regards

Tim Smile
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AndyJ
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PostPosted: Mon Mar 02, 2015 1:47 pm    Post subject: Reply with quote

Hi Tim,
I suspect you are right to be concerned. Cartoons produced by studios such as Disney are of course copyright protected as artistic works. The basic law on this is the same in both the UK and USA. If you copy a substantial part of one those works and there is no recognised exemption (known as fair dealing in the UK and fair use in the USA) then that would amount to infringement.
Because you plan to base some of your illustrations on these characters, without necessarily copying in facsimile form, the determination of what is 'substantial' is the key issue. Generally speaking it means the essence or heart of the thing being copied, so is a qualitative measure. This will clearly depend on many factors, but I think it is fair to say if a relatively unsophisticated person viewing one of your images gained the impression that it is in fact the genuine Disney character, then so might a court. That said, the existence of Mickey Mouse doesn't mean all cartoon mice would infringe; clearly there are several other characters (Danger Mouse, Itchy from the Simpsons) who can happily co-exist with Disney's creations. Much the same could be said of most of the Disney cartoon animals. You really need to analyse why you want to base your characters on those of Disney. If it is in order to benefit from the popularity and appeal of the Disney creations, you are probably at risk.
The second aspect to be aware of is trade mark protection. Several of the better known Disney characters have been registered as trade marks and since the registrations are likely to cover materials such as cards and computer generated items, if Disney can discern a close resemblance between your cartoon characters and theirs, they could also bring a complaint of trade mark infringement, or possibly passing off.
And the final factor to consider is that the Disney Corporation takes a robust line when it comes to protecting their intellectual property, so even if your drawings would not necessarily be found to be infringing by a court, either here or in the USA, that doesn't mean that Disney won't apply a great deal of pre-litigation pressure to stop you. You may find that pressure is applied to the company hosting your website, and to any other outlets like eBay or Amazon which you use to distribute your products. And as they have deep pockets, it may become uneconomic to resist even though you may feel you have a strong case legally.
If you feel that the success of some of your ecards depends on the buyer associating them with Disney characters, you might be better off entering into a licensing deal with Disney and thus being able to use the real characters.
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oldentim
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PostPosted: Mon Mar 02, 2015 2:29 pm    Post subject: Copyright infringement Reply with quote

Hi Andy,

That's really helpful thanks very much. I shall go back and rework these images so they do not infringe copyright and are individual enough and not resemble Disney's work.

Another question if you can advice.
If I where to say design t-shirts and use a quote but credit that person> So the quote and credit where to appear on the t-shirt is that a copyright issue. Or should I just rework the quote to make it individual?

Your advice is much appreciated.

Regards

Tim Very Happy
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AndyJ
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PostPosted: Mon Mar 02, 2015 4:34 pm    Post subject: Reply with quote

Hi again Tim,
You should be much safer with quotations. Some very short quotations, say three or four words ("Ich bin ein Berliner") and probably not more than 11*, may fail to reach the minimum threshold for protection because they are just too short.
Secondly even if the words are protected by copyright, quoting small amounts is permissable under one of the fair dealing exceptions I referred to in the previous reply. You can find full details here. But to summarise, so long as you use no more than is strictly necessary for your prupose (almost by definition, this may well be the whole quotable bit) and you acknowledge the author, then you should fall within the rules. And if you quote someone who died at least 70 years ago you don't need to worry about copyright at all.

* The reference to eleven words comes from a decision by the Court of Justice of the European Union known as Infopaq in which they found that an extract from a newspaper consisting of 11 words could in certain circumstances be treated as a literary work.
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oldentim
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PostPosted: Tue Mar 03, 2015 10:57 am    Post subject: Reply with quote

Hi Andy,

I have posted on LinkedIn and have other angles on this. This one comment was posted can you confirm or dismiss or just give me your view.

"While many here are trumpeting their versions of "fair use" it's good to remember that copyright cases are ultimately settled in court. Judges and juries are beyond fickle. I'd take any advice read in a public forum with a large grain of salt unless you're a copyright attorney or pay for one to vet the information. Otherwise be prepared to hand over your checkbook to Tom Petty Very Happy "

I getting a bit nervous about copyright and although I take in to account your advice and will redraw anything that could looks similar to companies like Disney.
But what if someone should pursue me for copyright infringement.
What is the process? Do they advice me to withdraw my images or do they take me to court immediately. Do I have time to rectify any problem without being penalised?

Regards

Tim
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AndyJ
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PostPosted: Tue Mar 03, 2015 3:27 pm    Post subject: Reply with quote

Hi Tim,
Nothing you get by way of advice on the internet (including this site) or down the pub, will beat proper face to face advice from a solicitor with IP experience whom you have personally engaged for that purpose. With the best will in the world none of us who provide guidance on the law can enter that special relationship between client and professional, but that is not to say we don't provide the best advice we can.

I don't think the uncertainty you face is to do with the courts (although some US courts do come out with idiosyncratic decisions at times), but rather to do with Disney's attitude. In order to get any money from you in damages, Disney would need to sue through the UK courts (because while you are living in the UK the US courts have no jurisdiction over you) and so any claim would be dealt with according to the UK law. Incidentally the remark about fair use which you quoted, indicates the writer was referring to US law where the fair use doctrine is considerably wider and more flexible than the UK's fair dealing exceptions which are limited to fairly specific activities. The only one of which might come close to what you want to do is the exception for parody. But since you have not mentioned parody, or indeed even poking fun at the Disney characters, I don't think this would be of any assistance to you.

As I mentioned, the Disney Corporation are not shy about protecting their rights* and so if they thought something you had drawn was too similar to one of their characters, the first thing you might get is a cease and desist letter. This is intended to do pretty much what it says. If you cease using that particular character then that will probably be the end of the matter. However if they think you are engaged in widespread infringement of several of their characters, and you appear to be making a reasonable amount of money from that activity, they may well seek some sort of financial settlement. All of this will occur with the threat of litigation in the background, but they won't want to go to court if they can avoid it, firstly because they may well be on flimsy ground and know it, and also because losing a case would be bad for them. However they can call on significant financial resources and just fighting them off before you get to court could be expensive for you. They will be counting on the fact that ultimately you may decide that however strong your case, it isn't worth the expense and the hassle for you to take them on.

So if you have no need to base your drawings on Disney characters and you don't want to go down the licensing route, then make your characters as different from theirs as you can, within the constraints of what you want to do. For instance if a particular ecard requires a duck, draw a cartoon duck that has none of the unique characteristics of Donald or his nephews. If necessary, look at other characters (Harold the Duck or the one from the toilet duck adverts), and see how they differ from Donald.

Returning to the issue of advice, you may find it beneficial to join a trade body such as the Association of Illustrators in order gain the support of fellow artists.



* It has been alleged that the Disney Corporation spent many thousands of dollars lobbying the US Congress ahead of the 1998 Copyright Term Extension Act to ensure an outcome favourable to the studio. As a consequence the Act is sometime referred to, mockingly, as the Mickey Mouse Protection Act.
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oldentim
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PostPosted: Tue Mar 03, 2015 5:29 pm    Post subject: Reply with quote

Hi Andy,

That's great advice and I do enjoy reading your content.
It is reassuring that there would be a time when I could withdraw any image should it take offence.

Thanks again for your wisdom much appreciated.

Tim Very Happy
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oldentim
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PostPosted: Wed Mar 04, 2015 3:34 pm    Post subject: Reply with quote

Hi Andy,

One more thing and that should be my lot.
I am understand that any claim should it take place it is a civil offense.
What does that mean?
Does that mean that if I had a Ltd company they would seek payment from the company and that is a far as it goes. Or do they pursue payment from me personally involving my family resources. Where does it stop?

I'm thinking of the worst case scenario for piece of mind.

Thanks again

Tim
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AndyJ
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PostPosted: Thu Mar 05, 2015 9:07 am    Post subject: Reply with quote

Hi Tim,
Copyright law covers both civil and criminal acts of infringement. Most cases are treated as civil claims, but more egregious ones can be prosecuted in the criminal courts - for example, large scale copying of movies on DVDs or operating torrent sites storing pirated material. The downside of a criminal prosecution from the point of view of the copyright owner is that the emphasis tends to be on punishing the offender and not on recompensing the copyright owner.

So having introduced that point, it is worth saying that I don't think it is likely that you would face criminal prosecution.

In civil actions, the defendant(s) can include an incorporated company (which is a legal 'person') and any other natural persons who have contributed to the alleged infringement, so for instance a director of the company could be liable if his was the directing mind which caused the infringement. Indeed other defendants might include someone who authorised or encouraged the infringing act without necessarily being an employee of the company. If the court accepts that all such defendants are individually liable, then all of them might be required to pay any damages which are awarded. A normal employee of the company, assuming it is large enough, would not ordinarily be personally liable for an infringing act if he/she was merely acting on the instructions of a manager or director etc. The company would be vicariously liable for the employee's activities in such circumstances.

So where the company has a single employee who is also a director of the company, there is a fair chance that both company and director could face liability as separate 'persons'. For this reason, a company should always ensure that it has the necessary liability insurance so that, if damages are awarded against it, the company can meet the whole amount through its insurance, thus providing some protection to the personal assets of any individual defendant. This would be prudient generally, not just in copyright cases.
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oldentim
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PostPosted: Thu Mar 05, 2015 9:23 am    Post subject: Reply with quote

Hi Andy,

I never thought of liability insurance. That is very reassuring I will look into it.
Again you've been very helpful

Thanks

Tim
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