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.
