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Fair use?
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Justinfh



Joined: 30 Sep 2012
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PostPosted: Thu Dec 27, 2012 5:59 am    Post subject: Fair use? Reply with quote

Is parodying other people's works, using original characters to comment on the original work and to comment on copyright laws considered fair use? If so, would it be fair use if you're trying to make money on such a comic?
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vulpeslibertas
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PostPosted: Thu Dec 27, 2012 7:24 am    Post subject: Reply with quote

This sounds good, but doesn't give a yes-or-no answer:

http://corporate.findlaw.com/intellectual-property/parody-fair-use-or-copyright-infringement.html
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nsanelilmunky



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PostPosted: Thu Dec 27, 2012 10:21 am    Post subject: Reply with quote

I think that for the most part it's okay as long as it is actually a parody and your entire work isn't using just the original work. I'm pretty sure if someone were to use say... Persepolis characters and style to promote whatever message they have and use those characters exclusively, someone would say something. If those characters were only used once or twice and/or mixed with original characters or characters from other works also, not many people would care.

Depending on what your message is, you might even just ask the original artist if you can use their characters. While not everyone likes being poked at, not everyone has a stick up the A.

Sorry I can't help more, I know a little more about music law than I do about art law.

EDIT:

Here's some links that might help in conjunction with V's. From what I'm reading, the courts are usually a bit more partial to parodies instead of satire. If all else fails, invoke the ruling of Campbell vs Acuff-Rose Music?

http://www.law.georgetown.edu/library/research/treatise-finders/intellectualproperty.cfm

http://scholarship.law.georgetown.edu/facpub/551/

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1310&context=facpub

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1264&context=facpub
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Zoe Robinson
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PostPosted: Thu Dec 27, 2012 11:01 am    Post subject: Reply with quote

Fair use is a tricky law that will often come down to how the judge interprets both the law and previous cases. The best advice you can get is to tread lightly and consult a lawyer in your jurisdiction.

That said, parody is a defence in fair use so if your work really is parody rather than just a few jokes made with someone else's property, you should be okay. Bored of The Rings comes to mind here.
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Clint Wolf



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PostPosted: Thu Dec 27, 2012 5:35 pm    Post subject: Reply with quote

There's an IP lawyer (and comic geek) name of Michael Lovitz who regularly gives seminars at places like San Diego Comic-Con. On the subject of parody and fair use, he brought up a real-life example from one of his consultations.

Basically, someone had the idea to do "Dennis the Phantom Menace" as a Star Wars parody using characters from the Dennis the Menace comic strip (I believe the American version, but it would hold either way).

He thought it was a hilarious idea, but from a legal standpoint advised against it... not because George Lucas (now Disney) would sue, but because the syndicate who owns the Dennis the Menace characters would sue. If it was your original characters doing a Star Wars parody, good legal footing. If it was your original characters doing a Dennis the Menace parody, also good. If you're using someone else's copyrighted characters to parody a third party, then you're probably asking for trouble.
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Zoe Robinson
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PostPosted: Thu Dec 27, 2012 8:51 pm    Post subject: Reply with quote

Clint Wolf wrote:
If it was your original characters doing a Star Wars parody, good legal footing. If it was your original characters doing a Dennis the Menace parody, also good. If you're using someone else's copyrighted characters to parody a third party, then you're probably asking for trouble.


*applause* This is good advice.
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ewomack
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PostPosted: Fri Dec 28, 2012 1:20 am    Post subject: Reply with quote

Don't mix parodies, I guess...
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Marscaleb



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PostPosted: Fri Dec 28, 2012 7:43 am    Post subject: Reply with quote

Answers to questions like this are usually fairly vague because we're not exactly talking about things with quantifiable qualities.
I was reading into this a while back, and truthfully, cases are handled on an individual basis. A few things that are really important to consider, but often left unmentioned in discussions, is how much money has been made by the infringe-er and how much money has been lost by the infringe-ee. If you share your work for completely free you can get away with almost anything. There was fan-film made a few years ago where Batman fought Aliens and Predators. It was explicitly using other people's IP, but he got a way with it because he wasn't selling anything. You can do the same. (You still don't want to defame a trademarked character; that's a different subject from this.) But if he sold this work, even if he was using "original" characters modeled after Batman and the predators, he would have been in trouble.

You can parody a particular work, and you can parody a lot of things from that work. But at what point is it obvious that you are really just trying duplicate that work?
This can't be explicitly defined, so cases are always handled individually.

If you have an honest portion of original content you're probably safe. If this parody is just one element in a line of other parodies and/or original content, you are probably safe. If you are writing a drama about the Confederation of Planets and the Kigions and Fengis and the Roluans... your efforts are best left in the realm of works that don't turn a profit.
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ewomack
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PostPosted: Fri Dec 28, 2012 2:37 pm    Post subject: Reply with quote

Yes, copyright always comes down to:

1. Will someone sue?
2. What are they suing for?

In the end, the ones with the better lawyers tend to win.

Usually companies send a cease and desist letter first, but if what they consider infringement has been going on for some time, they will typically ask for money. And if you don't pay up, then lawyers and court hearings can start.

In the end there are no hard and fast rules to this, so I usually avoid the situation all together. But in the end court is expensive for both sides, so people don't typically sue unless they see big payoffs coming from it. Still, it's not worth messing with.
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Clint Wolf



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PostPosted: Fri Dec 28, 2012 4:55 pm    Post subject: Reply with quote

Marscaleb wrote:

If you have an honest portion of original content you're probably safe. If this parody is just one element in a line of other parodies and/or original content, you are probably safe. If you are writing a drama about the Confederation of Planets and the Kigions and Fengis and the Roluans... your efforts are best left in the realm of works that don't turn a profit.


This is actually an interesting point to bring up, because another example that comes up in the Comic-Con seminars is how Marvel's Squadron Supreme can continue to exist when it's a very thinly veiled take-off on DC's Justice League.

From the Marvel.com message boards:

DC tried to sue Marvel when SQUADRON SUPREME was first published. However, since the characters were created years prior and made numerous appearances before the limited series was published, the courts sided with Marvel because DC had numerous chances over the years to file a lawsuit, but never did. Since they allowed the characters to be published without filing a lawsut, they no longer had a lawsuit against the likeness of the Justice League characters, which is how we now have characters like Images' Supreme. Anyone can create a character with similar history of Superman, Green Lantern, Batman, Wonder Woman, Flash, Aquaman, Green Arrow, Martian Manhunter, and Atom. Hyperion, Supreme, and numerous other characters all have the same basic origin and/or powers/weakness as a result.

Which also brings up the topic where companies send C&D letters/file lawsuits because if they don't, they can lose the right to defend their IP, or lose rights to the IP entirely. In one of the best known examples, the BBC rather than the Metropolitan Police owns the trademark rights to the blue police box now partially due to this. The police never objected to Doctor Who using it back in the 1960s, so they have no standing now.

http://news.bbc.co.uk/2/hi/entertainment/2352743.stm
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Zoe Robinson
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PostPosted: Fri Dec 28, 2012 5:36 pm    Post subject: Reply with quote

Clint Wolf wrote:
Which also brings up the topic where companies send C&D letters/file lawsuits because if they don't, they can lose the right to defend their IP, or lose rights to the IP entirely.


Yup. That's pretty much why I couldn't sue Spongebob despite it appearing after Nob Mouse, having a similar-looking character, and a similar fast-food service setting. :'(

Clint Wolf wrote:
In one of the best known examples, the BBC rather than the Metropolitan Police owns the trademark rights to the blue police box now partially due to this. The police never objected to Doctor Who using it back in the 1960s, so they have no standing now.


It helps that the TARDIS police box exterior isn't a complete rip-off of the MkII Police Box. The designs are somewhat different and there were numerous Police Boxes in use by other forces; so there were several "prior art" examples for the BBC to point to.

Also, don't use British cases as an example of Fair Use. The UK doesn't have a Fair Use law, we have Fair Dealing and it's quite different.
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Clint Wolf



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PostPosted: Sat Dec 29, 2012 7:30 pm    Post subject: Reply with quote

Zoe Robinson wrote:
Also, don't use British cases as an example of Fair Use. The UK doesn't have a Fair Use law, we have Fair Dealing and it's quite different.


Out of curiosity, what's the difference? Or would that take too long to summarize?

My understanding of trademark law is both the US and UK use English Common Law as their standard, but my understanding is admittedly limited to hearing some disclaimered, "unofficial" advice from lawyers.
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vulpeslibertas
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PostPosted: Sat Dec 29, 2012 7:53 pm    Post subject: Reply with quote

Well, for part of it, America and England both use "English Common Law", but that was back in 1776. Every new case which has been decided since then has added new precedents into the common law, so English English Common Law and American English Common Law are different. We've had 200 years to mutate "Common Law" into different interpretations, much like we both speak "English". Fo shizzle

EDIT:
You might also consider informing the parody-subject that you're parodying them. If they write back "Hey that's great", then you're covered. No guarantee they'll write back, and a non-response isn't an affirmation. If they give you a cease-and-desist, then you know you've got to contact your lawyer before proceeding.
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Zoe Robinson
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PostPosted: Sun Dec 30, 2012 3:09 am    Post subject: Reply with quote

Clint Wolf wrote:
Zoe Robinson wrote:
Also, don't use British cases as an example of Fair Use. The UK doesn't have a Fair Use law, we have Fair Dealing and it's quite different.


Out of curiosity, what's the difference? Or would that take too long to summarize?


Fair Use has different defences to Fair Dealing. Parody isn't a defence under FD, but commentary is. Fair dealing is also a fairly strict defence against copyright infringement and, as a result, has very few applications. Wikipedia has a reasonable description of them.
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Justinfh



Joined: 30 Sep 2012
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PostPosted: Fri Mar 15, 2013 6:46 pm    Post subject: Reply with quote

Clint Wolf wrote:
There's an IP lawyer (and comic geek) name of Michael Lovitz who regularly gives seminars at places like San Diego Comic-Con. On the subject of parody and fair use, he brought up a real-life example from one of his consultations.

Basically, someone had the idea to do "Dennis the Phantom Menace" as a Star Wars parody using characters from the Dennis the Menace comic strip (I believe the American version, but it would hold either way).

He thought it was a hilarious idea, but from a legal standpoint advised against it... not because George Lucas (now Disney) would sue, but because the syndicate who owns the Dennis the Menace characters would sue. If it was your original characters doing a Star Wars parody, good legal footing. If it was your original characters doing a Dennis the Menace parody, also good. If you're using someone else's copyrighted characters to parody a third party, then you're probably asking for trouble.


Thanks. I originally did a parody of Silent Hill 2 using original characters to point out how copyright laws have gone insane. I took that comic down (along with others) for copyright reasons. Now that I know better, I regret this. Anyway, here's my comic http://DisgruntledComics.com
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