Question About Trademarked Character Legality
draine761_c7a1098aa1
Posts: 111
Here's the situation: I've got a Patreon account that's doing pretty well, and some of my images involve superheroes. I've kitbashed clothing items to make a spot-on duplication of the 1966 TV version of a Batman costume. A lot of my patrons are huge fans of the '66 Batman, and have been hoping I'd find a costume like this.
Out of an abundance of caution, I'm trying to figure out how I might use a character in this costume without risking legal entanglement. Do you think I might be all right if I do not refer to the character as "Batman"? What about if I make minor alterations to the clothing (leaving off the iconic Bat symbol, for instance)? Infringement law is not my forte, so I'm hoping maybe somebody has better insights.
This is killing me, because the costume looks so good, I'd hate to not be able to use it somehow. Thanks!
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Just the fact that you kitbashed other people's models would make redistribution illegal. The trademark infringment would be on top of it.
I think you may be jumping the gun with this comment, because the OP is vague about what exactly they're talking about. So to draine: what kind of "usage" are you referring to? As FirstBastion mentioned, you can't sell or even give away the costume because you don't own the rights to the component parts. Even if you did, it would be copyright and/or trademark infringement to sell a costume that directly copies the Batman design. If you're just making art of Batman, that's fine, as long as you aren't selling the art itself, since the Batman character is covered under copyright.
I might have been unclear, so forgive me for that. Perhaps I was misusing "kitbash". The clothing articles--the basic costume, the cowl, and the cape--were all designed and sold by a Renderosity vendor. He doesn't make any direct reference to "Batman", but the elements are obviously meant to complete that 1966 version costume. It really is a terrific ensemble.
What I want to do is create images of a character in that costume--even if I do not refer to the character as "Batman"--and post the images on my Patreon account. Because patrons support me monetarily, I don't know if this sort of useage is a violation I should be concerned about.
Hope that's clearer! Thanks again.
Creating a render that is close enough to the trademarked image that a judge/jury feels it infringes infringes. That's how trademark law works unfortunately.
The bat cowl, the bat silhouette and the utility belt are all likely integral to that. Trademark law requires that the trademark holder pursue any and all violators or lose the trademark. So it is very advisable that you stear clear of this. Also I think if you check Patreon's TOS you'll find that they also specifically forbid the posting of infringing works.
That's what I suspected you meant. I'm certainly no expert, but I would imagine that Patreon creates enough hazy legal cover for you to post the art for your patrons, since, again, it's not the art itself that they're paying for.
From what i saw others do, i think it would be fine as long as the images are not behind a paid tier. If they are free and published as fan fiction/art you are good as long as that IP is not one on a constant crusade even against free fan art. Yes i know, some people will argue that while free you are still getting promotion out of it, might be right but i think is common practice that many tolerate the publicity is actually reciprocated.
I even know of someone that has paid tiers on patreon for original VN, publish a free Star Wars themed VN as fan fiction and as far as i know, without issues.
Now, i don't know exactly what you do, but if it by chance is parody; then you can even charge for it as long as original creator of the kitbashed items also allowed comercial use.
Are your patreons giving you money to create specific images of specific characters that you have no copyright to? If so that would be illegal.
Are your patreons giving you money to create unspecified stuff, i.e. are your patreons giving you money to support you in doing whatever you choose to do? If so you're in the clear. If a third does stop you from producing whatever it is you desire to produce (fanart or not) then that would be tortuous interference which is illegal. Companies have no right to interfere with the contract between the creator and their supporters even if the exchange is being done on their platform.
Producing fanart is illegal although nobody really enforces it. This whole area becomes really sketchy when it's an original image with an original take on some character because in such cases it can fall under "transformative work". Long story short, if the fanart is created entirely by you you're safe. If the fanart is some painstakingly done painting using some images from Batman comics or movies then that would be illegal as you're just copying what someone else created. Doesn't matter how much effort you put into it.
Fanart for money is a very grey, very sticky area. If it uses obvious copyrighted assets, or it clearly depicts an obvious copyrighted character or model and money is involved...technically it is within the copyright holder's rights to sue you. Most small potatoes artists, like those on Tumblr, etc...can fly under the radar. But...they are still breaking copyright.
It's very clear.
Just because neither he nor you mention batman, or whatever the character may be, doesn't mean that IP infringement hasn't taken place.
You may or may not get a cease and disist notice. It is even possible someone may come looking for compentsation. I'm not a lawyer, and as far as I'm aware, neither is anyone else here so if you really think you need advice then seek it from those who actually have a clue.
Why even risk it? I mean best case scenario you are going to mark yourself someone who doesn't have the modicum of creativity needed to come up with an original character. Worst case is you get banged up legally. Just because a hundred other people got away with it, doesn't mean you won't be the poor slob who DC finally decides to make an example out of. Everybody else is doing it rarely works as a legal defense.
Take the stuff you have, tweak it and make something original. Marvel and DC rip eachother off mercilessly by just changing a few things about their characters. Go that route.
meh I have had so many people attack me for daring to suggest people do original characters
seems art fandom is very very very popular among DAZ users
The only sound advice we can give is "ask a lawyer".