Using Spiderman image editorially?

'Is it legal', 'can I do this' type questions and discussions.
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colinh
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Using Spiderman image editorially?

Post by colinh » Sat Apr 07, 2018 9:35 am

Hello, please can I ask what would your thoughts would be on this from a copyright perspective?

I've taken a photograph of a friend dressed up as Spiderman in the Cairngorms National Park in Scotland (a fun out-take after a running shoot as he uses the costume to raise money for children's charities).

A large US outdoor magazine wish to buy the picture and publish it in a section of their magazine and website.

Q. Can I sell the image to the magazine for editorial use without infringing Marvel's copyright?

I believe I can (based on editorial purposes not needing model releases) but I'm wary.

Thoughts appreciated.

Thanks,

Colin

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AndyJ
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Re: Using Spiderman image editorially?

Post by AndyJ » Sat Apr 07, 2018 12:12 pm

Hi Colin,

I don't think there are any problems with either copyright or trade mark law in what you want to do. As the main 'risk' would be borne by the US publisher, and they will be protected by the much more lenient US fair use exception to copyright, this should be fine. Since the image is not going to be used to promote a product, trade mark law isn't applicable here even if, as is likely, the Spiderman character is registered in the USA as a trademark.

Such copyright as may exist in the Spiderman costume would be very weak under UK law, where 'characters' per se are not usually considered sufficiently substantial to gain copyright protection (see for instance the decision in Ainsworth). In the US the courts tend to be more supportive of characters (including, for example, the Batmobile), but since I am assuming you are based in the UK, that aspect won't affect you, and it becomes a judgement call for the US publisher. But as I mentioned, the transformative and editorial use of the image should cover them under the fair use doctrine.

Just be wary of the magazine publisher asking you to sign an indemnity absolving them from liability for copyright infringement!
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

colinh
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Re: Using Spiderman image editorially?

Post by colinh » Sat Apr 07, 2018 1:58 pm

Hello Andy, many thanks for taking the time to consider and reply to me, I really appreciate it.

Best regards,

Colin

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