Indirect references to movies / infringment?

'Is it legal', 'can I do this' type questions and discussions.
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Indirect references to movies / infringment?

Post by PaulM »

Hi all,

Stumbled across this helpful site whilst trying to find more information on the topic of designs `inspired` by movies or television.

I've seen many sites (Redbubble, CafePress, LastExitToNowhere, DarkBunnyTees to name a few) all with various designs based on movies, characters, places within those movies etc but I can find no definitive answer as to how legal these are / are they licensed or do they just tread the line very carefully - or - is my understanding of what is `dodgey` just wide of the mark.

So examples (as best I can) and my judgement on it:

A site selling a Gremlins t-shirt with a picture of a Gremlin = infringing?

A site selling a Gremlins t-shirt with NO Gremlin but instead the movie title in bold / fancy lettering and / or other recognisable features = infringing?

A site selling a `Gremlins` t-shirt based on the REAL LIFE (for examples sake) Cinema in the movie with an indirect reference to the movie (i.e. a clock on midnight) something fans would identify / recognise - all original art work - no mention of the movie / characters = I'm not sure?

I create designer tees based on my home city / county but have a love for movies and can create original designs better than those sites listed above, but I'm soooooooo cautious of infringement (perhaps overly so?).

I just want to do this the right way as best I can for a guy starting to venture into the side of the market.

Many thanks!

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Re: Indirect references to movies / infringment?

Post by AndyJ »

Hi Paul,

As you refer to your 'home city / county' rather than 'home city / state' I assuming that you are based in the UK (a big assumoption I know). If in fact you are based in the USA things are slightly different.

So in the UK there is very weak copyright protection for 'characters' as standalone entities. A cartoon of a Simpsons character would be protected as an artisitic work, especially if it was copied in another animation, but things which are merely the name or characteristics of a character, say Batman's grey and black costume and cape, have much less protection in copyright law because they can often be shown to be an insubstantial part of the overall work such as a Batman movie or comic.

The main protection therefore comes from trade mark law. This relies on exactly what characteristic(s) of a character are registered as a trade mark in the UK. So for instance, the word Gremlins is registered by Warner Bros in the UK in Class 9 for use in connection with "motion picture films prepared for exhibition; videotapes; videodiscs, videocassettes; gramophone discs, gramophone records; pre-recorded magnetic tapes and cassettes therefor; sound and video apparatus and instruments." There is also a recent (pending) application from Warners for an EU wide trade mark for Gremlins. This means that using the word on a tee shirt could run into trade mark issues, even though clearly a tee shirt is not one of the registered goods, due to section 10(3) of the Trade Marks Act 1994. Although a graphical representation of a Gremlin doesn't appear to have been registered, in many other cases film characters, especially cartoon characters, are registered as graphic marks. This makes it very difficult to give you a definitive answer about all the possible things you might want to put on a tee shirt, as each case would need to be checked out individually.

Added to the trade mark issue is the tort of passing off. We have covered this subject many times here so I won't go into the full details now. But given that Warners are well known for robustly protecting their intellectual property, I would expect them to examine all legal avenues if they felt you were seeking to free ride on the goodwill and fame of their films.
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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