Copyright Painting?

zellychan

I recently painted a Batman picture for a friend (for free) and was told there was a coffee shop nearby hung/sold local art and was the store itself was geek themed. My friend suggested I do a series of super hero paintings and sell them there. My immediate thought was "Yes!" followed by "...I think that's probably illegal..."

Google homework was so-so helpful. I read a bit about copyright vs trademark, deriative work, fair use, and the general opinion I got was that it would be a straight up Yes It Is Illegal, Don't Do It. But then I thought about conventions and how people are selling fan art everywhere. Googling this was even less helpful, as the answer I got was "it's still illegal, but people just don't care so don't worry about it".

So Advice Forum, share me your wisdom. I'll be real honest, I'm mostly curious about consequences. In the (unlikely?) event I'd be noticed, would I get a slap on the wrist or sued an absurd amount of money? I'd like to do the right thing legally, but if they copyright holders ignore it because its not worth it to get involved in something so small......
(Edit: The paintings in question, if it matters at all, are orginal designs, not stolen poses or anything.

tynic

The answer you already have is the correct one, yes it's illegal, and the reason people sell fanart at conventions in spite of that is usually because they (the fanartists) don't care. Some conventions are cracking down on this, others are currently letting it slide. The coffee shop may or may not care about the legality.

As to the penalties - well. It's hard to say what will actually happen, and frankly it would probably be nothing, but you should be aware that if the copyright holders DO decide to descend upon you like a sack of hammers, they are well within their rights to do so.

Dhalphir

Copyright penalties are far from a slap on the wrist.

You have a 90% chance of them doing nothing, a 5% chance of a warning letter from their lawyers to remove the paintings, and a 5% chance of being fined thousands and thousands of dollars.

I made up those figures, but they convey my point.

iamJLN

Copyright is a very serious issue if you piss the wrong person / company off. Everybody thinks they are safe and they can't be found, but they are wrong.

You cannot use other people's trademarks as your own work. It wouldn't be an issue if say your painting was of a HMV store, and very slightly in the background you saw an image of Batman, as that would fall under fair use.

bowen

Also, while everyone here is correct, DC and Marvel and the likes are very likely to license you or extend permission to make fan art if you ask nicely. For a cut of your profits, of course.

EggyToast

A quick way to determine whether something for sale could be fair use is to think about why someone would spend money on it. For example, someone is spending money on these paintings because of the superhero, not inherently because of the artist's quality. There's more to it when it's truly fair use, but this is a very clear case where you're making money off the fact that you're using someone else's copyrighted characters.

You can still do this. Just inquire about a license first.

Darkewolfe

You can't sell something based on the logo or character.

You might have fair use if you were doing something like painting someone who was obviously batman in profile, showing the stress and strain on his face under the mask in a gritty street, with no use of the distinctive batman logo or name. Could still have a cape and the pointy ears, though.

DoctorArch

And I disagree with Darkewolfe because if you have something that obviously looks like Batman in profile you're not likely to find that the four fair use factors weigh in your favor. In fact, unless your work is freakishly transformative, I don't think you would win on any of the four factors. Plus, while using someone else's copyrighted material for your own commercial use is no longer de facto copyright infringement, a lot of courts still put a lot of weight on the economic factor (factor #4 of fair use).

Darkewolfe

DoctorArch wrote: »

And I disagree with Darkewolfe because if you have something that obviously looks like Batman in profile you're not likely to find that the four fair use factors weigh in your favor. In fact, unless your work is freakishly transformative, I don't think you would win on any of the four factors. Plus, while using someone else's copyrighted material for your own commercial use is no longer de facto copyright infringement, a lot of courts still put a lot of weight on the economic factor (factor #4 of fair use).

Ok, did some more reading and not only do I yield to your experience on the outset, but also reconsider my point now with more accurate language. I'm not sure some of the basic costume traits of the Batman would be subject to copyright (though all of the specific symbols, name, etc. are all trademarked, and the actual character himself is copyrighted). The trick would be essentially not doing something that the courts would determine was a derivative work, as then you fall into whether you're under fair.

So, can you paint something that would have the aesthetic of a super hero without being a derivative work of the super hero?

And I guess if your point is to sell a series of them, where they're all clearly derivative works of various heroes, you'd be called out.

zellychan

Yeah the terms of fair use are very.....vague. I decided not to play with them.

Thanks people! Think I'll just be painting some landscapes then.

Edit: One more question. The main problem is the profit made, yes? So anything freely given or not for sale is fine? Copyright or no?

DoctorArch

While profit made is an important factor as to whether or not something is fair use (it's factor #4 in the fair use analysis), it is not a definitive factor. For example, if you were to still use Batman as a character in your freely given paintings, you are still impacting the potential market for derivatives (factor #4), you are still potentially taking the heart of or a qualitatively large portion of the copyrighted material (factor #3), you are still borrowing from a creative work (factor #2), and your purpose for doing so may not be one of the potentially noninfringing examples of fair use (factor #1).

bowen

If you still want to do it:

Come up with a business plan to make art based on their IP. Get in touch with them via:
http://www.dcentertainment.com/contact
Or this email directly : legal@wb.com

Also find an entertainment lawyer who deals with licensing of IP. He may be able to find their licensing department a different way than through a contact submission on a website

Reciprocity

Don't forget the sage words of Larry Lessig: "fair use is the right to be sued."

DoctorArch

Reciprocity wrote: »

Don't forget the sage words of Larry Lessig: "fair use is the right to be sued."

Absolutely, Fair Use might make you feel good, and you might even prevail at court, but therein lies the problem: you have to go to court.