Would this constitute copyright infringement? [/thread]

m3nace

I'm currently writing a comic about a kid who thinks he is Superman. It's relatively short, say 20 pages, and I plan on maybe publishing it someday in an anthology of my own. Now the thing is that Superman only appears in about four panels, in which the character imagines how a situation is going to play out, while we cross-cut to the actual reality of the character not being superman at all. Furthermore, the kid also wears a superman costume in a couple of scenes. Would this constitute copyright infringement, since Superman appears in the comic? Also, just to be clear: this does not take place in the Superman universe or any other fictional world for that matter.

I mean, eventually I could just replace Superman with my own spoof called Captain Cosmos

, but I'd rather it was actually Superman since it's somewhat autobiographical.

Simpsonia

Disclaimer : I am an attorney, I am not your attorney, this is not legal advice, etc etc.

This would require a full legal analysis and more information to determine whether you had a snowball's chance in hell at claiming a fair use defense to copyright infringement. In addition there are almost certainly trademark dilution/infringement claims to worry about as well. However, even if you had a chance at a legitimate defense, the fact that you're asking this here means you don't have the money to fight it in court to even get that chance.

TL;DR Noooooope.

Eat it You Nasty Pig.

(IANAL)

what you would be worried about is trademark infringement rather than copyright; assuming you are drawing real-shit Superman and not a pastiche or vague guy-wearing-a-cape silhouette or something you would almost certainly be infringing on DC's mark.

m3nace

Hm, okay. Guess I'll just 'Chris Ware' it then and use an anonymous superhero.

bsjezz

this should only be a worry to you if you're at immediate risk of making some actual money from your art. until then, don't compromise - go with your artistic vision.

bowen

You might be able to pull it off legally speaking if you don't mention "Superman" the trademark and just put a guy in blue tights with a red cape and underwear.

DoctorArch

Disclaimer up ins: I too am an attorney, but I'm not your attorney nor is this legal advice. This is information provided for entertainment purposes only and does not constitute legal counsel.

The test for copyright infringement generally hinges on whether the allegedly infringing work is "substantially similar" to the copyrighted work. E.g., if people could generally recognize that the character in your comic is Superman, then it probably is "substantially similar" which would mean it is an infringing work. Note, substantial similarity means that your character looks like Superman, not that it uses the "idea" of superman or a superman analog, because copyright only protects expression, not ideas.

So you have an infringing work, what then? That's where the defense of "fair use" comes into play. As previously mentioned, the question of whether an infringing use of copyrighted material is a "fair use" of the copyright material involves lots of factors and there is never an easy answer. Especially because if you're relying on a fair use defense, it means that the court has already determined that you are, in fact, infringing on a copyright.

You could also try contacting DC comics to see if they have any ways to get permission to use Superman in this way.

kaliyama

I think you have a god fair use argument, but what does it add to actually use superman? If DC decided to hassle you, from a practical perspective you wouldn't want to spend time and energy fighting them about it. If you don't need to use superman, better not to.