Comic containing photos of copyrighted figurines
- June 28, 2005 @ 8:06ammartyF says:Hello all, this forum seems like it could be really helpful to me, so I am hoping someone out there has an answer or some similar experience.
I have a photographic cartoon that I created that depicts office life. The figurines and most of their accessories used in the shots are copyrighted by the company that produces and sells them. I purchased them and posed them for the pictures. In addition to posing them, I do all the artistic work such as the photography, image manipulation, storyline invention, dialog and I change the facial expressions (in Photoshop) of the figures.
I approached the owners of the copyrighted figures to license the copyright. They inquired about what kind of royalties they would receive.
In speaking with a lawyer and doing some investigating on my own, it seems a license would be a good idea but my comic is not an infringement. I have also read that Mattel tried unsuccessfully to sue a photographer who was selling photos he took of Barbies in various situations/scenes and the courts ruled they could not stop him.
I would like to syndicate the comic (through myself or through third party). My question is three fold. Do I even need a copyright license from them? If so, do I need to give them royalties and if so, how do I figure out what percentage?
Here is the comic: http://www.jobschmob.com/officeCartoon.cgi
Thank you very much for any advice/input!
- June 28, 2005 @ 1:56pmAFry says:I don't have as much time as I would like to answer your question, but I'm going to do the best I can. Those toys are cool. I think you are confusing copyright with trademark or possibly patent. I don't see how a copyright would apply unless the toys are considered works of art. I'm not really an expert on trademark law, but I don't think trademark law applies to your situation. [Edit 6/29/05: I've changed my mind based on cjovalle's comment on trade dress and a quick skim of the article I mention below.] Trademark law would prevent you from using the brand name to sell your comic. I'm far from an expert on patent law, but I don't see how that applies either. Patent law would prevent you from making your own figures. Perhaps you are confused by the notice on the company web site. [quote]© 2005 Accoutrements. All rights reserved. All designs and images are protected and may not be reproduced in any manner, including use on the internet without written permission.[/quote] The copyright notice appplies to the web site, not the toys. You cannot steal from the web site. However, the notice about designs and images that immediately follows the copyright notice does not specifically refer to copyright. I believe that this message refers to copyright, trademark, and patent protection. The original design of the toys might be protected by copyright law, but not the toys themselves. The design might also be protected by patent law. If you design a toy that is identical to theirs, you would probably violate copyright law. If you build the same toy, you might violate patent law. None of that applies to your situation. You have made what is called a transformative work. You have taken something that is protected and transformed it into something else. You are selling that something else, not the original work.
I have also read that Mattel tried unsuccessfully to sue a photographer who was selling photos he took of Barbies in various situations/scenes and the courts ruled they could not stop him.There is an article in the Virginia Journal of Law and Technology that you might want to read: "The Battle for Mindshare: The Emerging Consensus That the First Amendment Protects Corporate Criticism and Parody on the Internet." It was written by Hannibal Travis in the Winter, 2005 issue. You might need this information to get it: 10 Va. J.L. & Tech. 3. I have not had time to read this article yet, but it mentions Barbie and appears to deal with the situation you describe. You should be able to get this article through interlibrary loan from any library with which you are affiliated. Law libraries might have a copy of the article. Any library with Lexis-Nexis (law libraries, universities, some colleges and some major public libraries) will have an electronic version. You also might be able to get a copy from the author. If not, you might be able to ask him questions. His email is firstname.lastname@example.org. Be polite and don't be upset if he chooses not to answer. Something came up and I don't have any more time right now. Keep in mind that I am not a lawyer and this is not legal advice.
- June 28, 2005 @ 4:26pmmartyF says:Thank you so much for you response. I really appreciate the time and effort you put into your reply. I will definately check out the article you mention.
But guess what...? Lo and behold this afternoon I get a reply from the company informing me that they cannot consider a copyright license for me as they have just entered into an agreement with "another party" to produce and market those little guys in a variety of forms, including "animation, TV, film, Internet and comic formats". So where does that leave me?
My first comic was published online on June 7, 2005 and they have been aware my intent to publish the comic since April 28, 2005 when I sent them the first e-mail (which went unanswered) asking permission to do the comic. To my knowledge, they have been aware of the comic's existance in published form since June 21. So, if they publish a photographic comic, knowing I am already doing one will they be then infringing on my copyright? If they publish a drawn comic, I am assuming all is well as it is a different artistic medium? :?
I had not officially filed with the US copyright office as I was waiting to see how this all played out. My understanding is that I have copyright the minute I created it, but I am small and they are big. At this moment I have this overwhelming "HEY! That's MY idea" feeling because in my correspondence with them, this is the first I am hearing of another party's intent to publish a comic and they gave me no indication that one currently exists. If it did, I'm pretty sure they'd tell me.
I truly appreciate anything anyone has to offer on this situation.
- June 28, 2005 @ 9:15pmCOvalle says:I'm not a lawyer; this isn't legal advice. It sounds like you might want to consider talking to a lawyer about this subject soon... I wanted to mention a few things.
As far as copyright, the company could argue that the toys sculptural qualities or design are violated. I completely agree with Alfred that your use is transformative. That being said, the Mattel case had an important aspect to it- the artistic use of the Barbie dolls was commenting on the Barbie dolls and Mattel themselves. I don't know if your work is doing the same kind of thing, but it's something you should consider.
I wanted to mention that one of the areas of trademark is trade dress, which can cover the nonfunctional design of an object...
In addition, the company could argue defamation if they think that your comics are in some way harming their image. (This is another thing that Mattel tried with Barbie and failed, interestingly enough, but again you need to check the particular situation.)
There are a lot of reasons to check with a lawyer at this point... one, I'm going to guess that the company things that you require a license, which makes it a lot more likely that they'll sue. Also, if the company manages to prevail in court, they could attempt to claim ownership of your work as an unlawful derivative work. I'd definitely want to avoid that!
Statutorily, unlike with song performances, there doesn't seem to be a set royalty rate with this kind of use.
- June 29, 2005 @ 6:25ammartyF says:Thank you again.
Those links were very helpful. I was not aware of "trade dress".
I don't think the company believes I need a license because I'm the one that approached them about it because I wanted their blessing in selling my comic. They have never told me I needed one to create the comic and they have never asked me to stop.
I see your point about the Barbie case, in that the works were making social comment. I had thought about that too. However an initial conversation with my copyright lawyer told me that you could argue that I am using the toys for exactly what they are sold to be used as...diaramas portraying office life and that I am within fair use.
At this point I am going back to the lawyer's office because there seems to be so many facets to this one. Ugh. :D
- June 29, 2005 @ 7:24amAFry says:I do not have the time to adequately consider or discuss your situation, but I want to make a few points. I believe this is primarily a trademark law issue. Unfortunately, I know more about copyright than trademark. I agree with cjovalle. Get a lawyer. You may not need a lawyer, but in most of the possible scenarios that I can imagine happening, a lawyer would be either extremely useful or necessary.
they have just entered into an agreement with "another party" to produce and market those little guys in a variety of forms, including "animation, TV, film, Internet and comic formats".
this is the first I am hearing of another party's intent to publish a comic and they gave me no indication that one currently exists.You have not heard this yet. The fact that someone has a license to produce a comic does not necessarily mean that they will or intend to produce a comic. The "another party" may choose only to excercise the animation option.
My understanding is that I have copyright the minute I created itCorrect.
but I am small and they are big.Unfortunately, also correct.
"HEY! That's MY idea"You cannot copyright an idea. You can and have the copyright for your execution of that idea.
If they publish a drawn comic, I am assuming all is well as it is a different artistic medium?Not necessarily. If I take one of your comics and replace your photos with my drawings, I have violated your copyright.
So, if they publish a photographic comic, knowing I am already doing one will they be then infringing on my copyright?Again, not necessarily. It depends on how closely the execution of your idea matches their execution of the idea. What will make the execution similar: 1. The nature of the toy pretty much demands Dilbert-style humor. 2. If your pictures are composed almost entirely of material from this comany, the composition of the pictures from both you and the other party will be similar. What will make the execution different: 1. The Cubes (notice the TM everytime this is used on their site) is not equal to Life in a Box. 2. Their Joe does not equal your Mr. Batista. From what I can tell, all of their characters have simple first names and no last names. Changing Joe to Bob doesn't distinguish anything, but changing a generic name to a distinctive one helps. 3. Either your or their execution could involve distinct personalities. Two executions be made less similar if one execution (yours or theirs) uses completely interchangeable characters and the other execution uses characters with distinct personalities that cannot be interchanged. Both executions can use distinct personalities as long as the personalities in one execution are distinct from the personalities in the other. Donald Duck and Daffy Duck have different personalities. 4. A 3-panel strip that tells a joke is very different from a comic book that tells a story. I'm concerned about the JoeSchmob logo. The figures look familiar to me. If you constructed the logo by assembling pictures from a clip art collection, someone might use that against you. That's all I have time for now.
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