Fare use when promoting a brand and hiring a copyright solic

'Is it legal', 'can I do this' type questions and discussions.
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georger
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Fare use when promoting a brand and hiring a copyright solic

Post by georger » Thu Jul 09, 2015 7:12 pm

Hi all

I'm researching an online business idea and one of the first to-do's (with your help and maybe a solicitor) is to establish if the idea will break fair use of copyright or not. My company is based in the UK.

Here's an example of the idea.

Publishing video podcasts that will be promoting DC Comics products in the style of a character from DC Comics. For example. reviewing Batman comics, while doing an impression of
Christian Bale's Batman and wearing gloves and arm armor that match Bale's Batman costume. The videos will contain no copyright music or sound effects. The script will be original, ie. no Batman comic or movie lines. And will contain a disclaimer at the beginning detailing the copyright owners details and that the video is in no way associated with the copyright holder.

My second question is how to hire a copyright solicitor. I see some offer free consultations. I can get a solicitor an example video. Would they be able to sign off on it, confirming if it does fall user fare use? What sort of fee would you expect to pay? If DC issued a cease and desist what good would a solicitor's letter be?


Thanks for your thoughts and advice.

George

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AndyJ
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Post by AndyJ » Fri Jul 10, 2015 6:40 am

Hi George,
I don't really have a clear idea of exactly what you are proposing here. However creating reviews of copyright works is certainly permissible under the section 30 provisions of the Copyright Designs and Patents Act, and this would allow you to quote small snippets from the comics.

However by also introducing elements of the Batman character as portrayed in the films with Christian Bale, you are more likely to run into opposition to your venture. This is simply because the film studio behind the Christopher Nolan films, Warner Bros, are likely to go to great lengths to protect their branding and the associated merchandising. To do this they are likely to use the developing area of character copyright which is still in its infancy here in the UK as far as settled law is concerned. The body armour of Bale's Batman is very much a creation of the films, and so despite your intention to provide disclaimers, there may be an arguable case that your podcasts amount to passing off, since the costume has nothing to do with the comics, and everything to do with the Nolan movies.

On the subject of solicitors, you may be able to get a free consultation lasting about 20 mins or so, in which you can outline the issues, but don't expect to get anything beyond some anodyne general advice without paying for it. And since you need to deal with a specialist IP solicitor, I would expect you to have to pay for any advice. You can find a solicitor who specialises in IP matters in your local area by using the Law Society website. Just select Media, IT and Intellectual Property in the left hand drop down menu and your town to find local firms. You should phone and ask their rates before deciding to engage a solicitor.

You are unlikely to get the sort of letter you are seeking, effectively indemnifying you, because that is not how solicitors operate. The closest you may get to that would be a counsel's opinion (ie a barrister's written analysis of the law in relation to your venture). If you want this you can go straight to a suitably qualified barrister operating under the public access scheme, without needing to use a solicitor. You will probably be looking at a fee of upwards of £400, although this could be considerably more if you engage a more senior barrister such as a QC. You can find a barrister who specialises in IP law through the Bar Council's website. As with engaging a solicitor, ask about fees and other costs beforehand.
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

georger
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Post by georger » Fri Jul 10, 2015 8:32 pm

Hi Andy,

Really useful post, thanks.
AndyJ wrote:I don't really have a clear idea of exactly what you are proposing here.
Another example could be a toy playset. I take you point about not making the costume identical to any depicted by a character in a movie or copyrightable media. Using the DC comic example the reviewer could be dressed 'like' a character in the movies and unboxing, assembling and/or demonstrating the playset where only their hands and arms are visible for the purpose of reviewing.

Batman's an interested example cause there have been many depictions of how the character speaks, in films from various eras (perhaps except Adam West's hipster version) and computer games.

If it was possible to recreate the voice sound effect of say Batman, Bane or any other recognisable film character is there any precedent for that breaching copyright?

George

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Post by AndyJ » Sat Jul 11, 2015 6:43 am

Hi George,
The thing about 'character' copyright which I didn't really make clear in my last posting, is that you won't find anything about it in the statute law; the developments we have seen are all to be found in the decisions of various courts, mainly in the USA. A classic example concerns Sherlock Holmes. It has recently been decided in an appeal in the USA that that certain details of the Sherlock Holmes and Dr Watson characters can still be subject to copyright (due to the date when the stories which revealed the details were published) even though more general features of the characters (think of the pipe smoking, violin playing etc) are not protectable because they appeared in stories which are now in the public domain. The UK courts have not gone nearly so far over whether such minor character details could form a substantial part of a copyright work and therefore be protectabe under copyright.
However, the legal departments of companies such as Warner Bros and DC Comics tend to believe that US law is all that matters, and so that is what may encourage them to issue a cease and desist letter, regardless of whether a UK court would actually uphold their claims.

That is the background against which you need to judge the likelihood of getting hassled by these large companies. It is unsatisfactory from the point of view of certainty in the law, but you need to be aware of it. Bizarre cases do occur which make one think, wtf?

Coming back to your actual question, I don't think that voices of characters would pose any problem. If nothing else you might be able to rely on the recent exception for parody and pastiche.
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Post by georger » Sun Jul 12, 2015 11:56 pm

Again, really helpful post Andy. Thanks.

And the suing the company for Clooney looky-likey. F*cking heh!

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Post by Nick Cooper » Tue Jul 14, 2015 1:09 pm

Just when we thought the Conan Doyle estate couldn't get any more desperate! It seems something of a gamble, though, as if the case doesn't go their way, the whole edifice will come crashing down.

Otherwise, roll on 2023....

Hollywood Report article with PDF of full complaint

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Post by georger » Tue Jul 14, 2015 9:32 pm

Nick Cooper wrote:Just when we thought the Conan Doyle estate couldn't get any more desperate!
Do you think the main reason they're p*ssed off is they don't receive any royalties each time someone utters the phrase 'No sh*t, Sherlock' ?!

;)

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