New business idea but need help??

'Is it legal', 'can I do this' type questions and discussions.
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Chris
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New business idea but need help??

Post by Chris » Thu Mar 22, 2012 11:30 am

As a fan of cartoon characters I would like to be able to draw children's favorite characters on their bedroom walls. This is a business idea that i have been thinking about for a while. However i don't want to break any copyright laws and was wondering if you could help by pointing me in the right direction?? I know there is people out there that already do this for a living are they in breach of copyright?? Can i do this sort of thing for profit?? If so would i need to pay any royalties and if so how do i go about doing it?? Do i pay say Disney or Cartoon Network direct or is there a company that deals with all this on their behalf?? I would love to be able to do this as a business venture as i know it would make children's dreams come true if they could have their favorite cartoon characters on their wall, I hope you can help many thanks Chris.

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AndyJ
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Post by AndyJ » Thu Mar 22, 2012 10:49 pm

Hi Chris,
You are right to conclude that if you want to do this as a business you will need to negotiate a licence or series of licences. Clearly you could just go ahead and get some commissions and maybe the copyright owners would never get to hear about it because your work would be in private homes. But the risk is that you could face hefty bills if you are found out. And as I assume you would want to advertise your services, this would provide the best chance of being noticed by the big corporates.
Unfortunately I am pretty sure that there is no single agency you can contact to get a blanket licence, in the same way you can for most recorded music etc. It will be a case of establishing the owner of the copyright in each case and contacting them to explain what you wanted to do. With the big studios like Disney, that will be fairly easy as they have a licensing department*, but rights for some of the less well-known characters may not be owned by the film makers but some other company. For instance you may have heard in the news recently that a pub called The Hobbit has been contacted by an obscure California based company which owns the rights to JRR Tolkien's works.
Whilst the Cartoon Channel may be able to assist in identifying the rights holders, it is most unlikely that they will own any rights themselves.
Don't just think in terms of copyright. Most if not all the best-known cartoon characters will also be registered as Trade Marks, and indeed using this route may help you to track down the rights owners more easily, by using the UK intellectual Property Office site to check out characters by name, for example as I have done here with the name 'Popeye'. Obviously if you are successful in getting a licence to reproduce a character, this will cover both the copyright and trademark aspects.

*For example here's what the Disney website has to say about their licensing operations:
The Walt Disney Company has a large portfolio of intellectual property that the company manages through relationships with a range of licensees, vendors and retailers. Products bearing Disney characters, stories, songs and brand names include a wide range of categories such as apparel, footwear, toys, stationery, published materials, food, CDs and DVDs, home furnishings and consumer electronics, among others. Disney has granted rights to more than 8,000 businesses to use our intellectual property in the manufacture of such products. Some of these licensees are large, even global, companies and retailers, while many others are medium-sized and small companies located around the world.

The majority of Disney-branded products are manufactured by licensees, managed by Disney Consumer Products (DCP). Studio Entertainment, Parks and Resorts, Media Networks and Disney Internet Media Group also source Disney merchandise for retail sale or for promotional purposes through licensee and vendor relationships.
Business Relationships

We use the term "licensee" when we refer to the companies to whom we license the rights to manufacture Disney merchandise for distribution or sale to others and "vendor" when we refer to the companies we engage to manufacture Disney merchandise for us. Our agreements with both licensees and vendors include specific obligations which licensees and vendors must secure from each factory and supplier they engage in producing Disney merchandise.

Example of a Licensee Relationship: Company X seeks to create a shirt with an image of Mickey Mouse. This company reaches out to Disney to negotiate and conclude a license agreement for the right to reproduce Mickey's image on shirts in exchange for certain licensing fees and royalties. Company X then produces the shirt through its own supply chain and sells it to consumers (or retailers).
Example of a Vendor Relationship: Disney seeks to create a shirt with a Mickey Mouse image. Disney reaches out to Company Y to negotiate and conclude a vendor agreement for the supply of shirts with Mickey Mouse's image. Company Y then produces the shirt through its own supply chain, and sells it to Disney for the agreed price.
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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Post by Chris » Fri Mar 23, 2012 12:53 pm

Thanks Andy
I have done so much reaserch into this over last few days i now have a whopping head ache!! :shock: Its funny if i was interested in doing something in music it seems so much more straight forward lol.

Anyway whilst researching i came across a site that deals in royalty free clipart of some cartoon characters.
They state that the images they have put on the site are not originals but their own work of cartoon characters such as our friend Mickey Mouse, They say "(!) DISCLAIMER: All the cartoon cliparts may be used for personal non-commercial purposes only."
"Where you can use the cartoon images? Place it:
- on T-shirts
- at personal photo albums and scrappybooks
- on personal calendar
- as screensaver or wallpaper on your computer
- on personal sticker
- on personal cup
- on your personal website
- on greeting card, birth announcements and invitations
- on personal poster
- on your personal card
- on personal CD covers
- in your documents and presentations
- and anywhere more for personal purposes you can imagine."
So my question is, is this legal if so can i download their work and hand draw my own copy? as that would be for my personal use in a scrap book!! Then use my own copy (as in theory that would be my own work) to copy from when drawing a character on the childs wall? and charge for it?? or would i still be in breach of copyright?? Hope that makes sence :?

Another idea ( a purely hyperthetical one ) If i make my own character up and lets say someone want's Mickey Mouse, I draw my character even though it may only be tiny compared to Mickey, So i purely only profit from my own character and do Mickey for free would that be ok?? As i would not be profiting of Mickey??

Hope it all makes sence lol
:?

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Post by AndyJ » Fri Mar 23, 2012 3:19 pm

Hi Chris,
Be very wary about clip art sites which offer characters which are very similar to Disney characters, because ultimately you will not be protected by any disclaimers they may post if Disney decide to come after you. Copyright infringement is what is called a 'strict liability' offence, which means there is no defence of innocent use. Frankly if something looks like Donald Duck or Mickey Mouse, chances are Disney will have little difficulty in convincing a court that the artwork infringes their copyright. I suspect that the clip art sites you have seen are relying on the US law which allows for a category of 'fair use' which has been interpreted more widely in the US than the corresponding UK law, where the categories of exceptions are quite narrow and certainly would not provide you with any practical defence.
Which takes me to your second point. It doesn't matter if you are copying for free or on a commercial basis, it is still infringement, and the only difference may be reflected in the amount of damages which you might have to pay in each case.
Clearly if you can create your own characters which don't resemble any known cartoon characters, you should be free to use them, and indeed you will own the copyright in your characters so others may not exploit their use without your permission, but given that Disney* are particularly litigious I really wouldn't recommend taking any chances over their characters.
For an example of how even fairly dissimilar characters can still lead to allegations of copyright infringement, see this case: Mitchell v BBC [2011] EWPCC 42 and in particular the illustrations in the annexes.


*Not only are Disney very keen to enforce their intellectual property rights, there was considerable controversy (see here and here) some years ago when it was claimed that a number of pieces of US Copyright legislation were introduced at the behest of Disney studios to extend the term of protection for Mickey Mouse, who first appeared in the 1928 film Steamboat Willie. Whatever the truth of this, it is indicative of how seriously Disney takes the subject of copyright in its characters.
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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Post by Chris » Fri Mar 23, 2012 5:20 pm

Thanks again Andy

Altough i now intend to use my own characters, and people say they would like me to draw say known copyrighted characters can i still draw on their walls as no money would exchange hands for it??
I know i ask a lot of questions lol but just trying to get my head around it thanks again.
Chris

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Post by AndyJ » Fri Mar 23, 2012 5:30 pm

Hi Chris,
I'm afraid copying is copying as far as copyrighted artwork is concerned, irrespective of whether payment is received or not. However if you do not advertise this service and all your work is done within private dwellings, I think the chances of you being caught out are much reduced. But that doesn't make what you propose either right or risk-free.
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

Chris
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Post by Chris » Fri Mar 23, 2012 5:35 pm

Thanks again Andy :)

I think to be on the safe side i will contact Disney see what they say before i do anything, See if i can get a lisence from them although i think it would be costly. I will keep you updated as i go on many thanks for all your help and putting all the jargon in english for me :lol:
Chris

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