[BeHulls]

Hey guys! How is everyone?

I'm a graphic designer from a pre-press background, been in the game for about 7yrs now. Recently started my own print/design business, we mainly print and design band merch. My previous jobs have not had a lot of involvement in copyrights, so for the past few hours I've been trying to wrap my head around it.

I've had a customer come to me wanting a cartoon style design based on this screenshot of a scene from the walking dead series. I'm having a hard time trying to figure out exactly what is and what can be copyrighted. As far as I understand a copyright could/probably will apply to the characters and the actors themselves? I have read that there is such a thing as a legal parody. Do all of these things apply worldwide? How could this design work without infringing copyright?

I'm curious about how far copyrights go in terms of something like this. If I was to create an artwork from scratch, showing a policeman (or even just a man) in a similar scene with a zombie child, both of them looking completely different. Would this fringe the copyright as it's a scene that has been acted out? And also one that is easily distinguishable. If so, would a different composition of the scene and or different poses of the characters change this? What if I was to reverse the rolls and have the zombie child holding the revolver at the policeman?

I've attached a few images as reference. The screenshot is from the show. The "A day to remember" design is clearly using a copyrighted character, is this classified as a parody? Or would Pac man be in public domain. How do you know what is in public domain? Is there a way to check? The third is an image that of Spiderman that was referenced in an article that I read as a legal parody.

It is highly likely I will have people coming to me requesting similar designs. I would love to be knowledgeable on what is possible and being able to advise my customers of this. So if anyone can help, it would be massively appreciated! I'd love to see some designs that anyone has done that legally fit into this category.


Thanks for your time ,
Brian

 

[charles95405]

in my humble opinion, which is seldom humble....Yes this is infringement BUT...do not take seriously any advice from a public forum on such an important issue.. This should be discussed with and IP attorney. I think any image which can be recognized as a copyright or trademark brand should be avoided.

One forum member Tim...is very knowledgeable...maybe he will chime in

 

[BeHulls]

hey Charles,

Thanks for your reply. I will definitely be enquiring about such things with an attorney. To be honest I don't really know who to contact or what kind of costs are involved in meeting with them. Something I'll have to look into shortly.
I know there are some really knowledgeable people on here. I have seen some great comments from Tim on a few threads actually, I'm hoping he can shed a little light for me. I was just putting the feelers out to get a bit of an idea from people that may have experience in it. I've gotten some great information from this forum. Hopefully one day I'll be able to contribute as much back.

 

[JSISIGNSCOM]

If you sell them then and they find out they will come after you. Just the way they work when it comes to copyrighted images. Now theres nothing saying you can draw your own cop and zombie (cant look exactly like the shwo but you get the picture).

 

[kimura-mma]

The best thing to do is consult an attorney. Most will offer a free consult to answer some of these questions you have.

But the reality is, any time you attempt to create artwork that is based on existing copyrighted or trademarked material, there will always be some type of risk. Obviously, the more blatant the rip off, the higher the risk. But there will always be risk no matter what.

The term "legal parody" is a bit of an oxymoron. When creating a parody, the IP owner can still take legal action. Depending on the specifics, the case can settle or go to court. In court, the infringer can use the parody or fair use defense, but it will ultimately be up to the judge to decide who wins.

In my interpretation, something that is "legal" means you can't be sued for doing it. So since you can be sued for creating a parody, I wouldn't ever interpret it as "legal." I instead would assign a level of risk. So depending on the specific design you are creating, I would try to determine whether it is high risk or low risk.

It's hard to compare the different examples you linked. At the end of the day, it will come down to whether or not you get caught. No one can tell you what the owners of the Walking Dead intellectual property is going to decide to do.

 

[BeHulls]

Thanks for the feedback guys. I will be looking for an attorney with whom I can discuss to help educate myself on the subject, to me it seems like it is a giant grey mass of un-speficness. It's a little scary thinking how easy it would be to create a design unknowingly that has similarities with someone else's and being sued for it. What draws the line between inspiration and a rip off? Obviously not the case here, but with what I've been reading I'm sure that could have happened.

Well hearing that you can have legal action taken against you doesn't make it legal then...definitely an oxymoron. Do you think the Pacman design would fall into the parody category? I wonder who's sense of humour you have to appeal to for it to be classified as such. It would be an interesting case to see in court. If it makes one person laugh, does that mean you get off?

That's the gamble I guess, until now I've never really thought of my work in a legal sense. Now that I'm doing work for myself I guess I'm being a little more assertive.

 

[kimura-mma]

to me it seems like it is a giant grey mass of un-speficness.

Well, the laws are actually quite specific. But there are 2 elements that tend to cause confusion:

1) Not everyone gets caught - So it's common to look online and find tons of t-shirts that infringe on copyrighted and trademarked material. Because so many others are doing it, it's easy to speculate that it's legal to do. But that just isn't the case. Some people get caught, some people don't. Just because someone gets away with it, doesn't make it legal. And it doesn't mean you would get away with it too.

2) There are laws that help creators of derivatives and parodies defend themselves in court. As mentioned, these laws don't automatically make it legal. It just gives creators of these works a legal defense. It is ultimately up to a judge to decide whether it's fair use or infringement.

What draws the line between inspiration and a rip off?

Good question.

Creators of derivatives and parodies will always claim their design is inspired by the existing work but has enough originality to be viewed on its own merit.

IP owners will always claim it's a rip off and the creator of the new design is attempting to illegally profit off their recognized existing work.

Legally, it will be a judge who draws the line. The way I understand it, the burden of proof lies with the creator of the new work. It is easy for the IP owners to claim their ownership (for example, it will be obvious to a judge that Namco owns Pac Man and that Marvel owns Spiderman, etc). So the creator of the derivative or parody needs to prove why their work is based on fair use and not IP infringement.

Here is a good article regarding fair use guidelines:
Trademark Parody - Florida Intellectual Property Law Firm - Lott & Friedland

If it makes one person laugh, does that mean you get off?

No, it doesn't really work that way. It's not just about the humor. It's about using the existing work in a way to express a new idea.

That's the gamble I guess

Yep, that's exactly what it comes down to. You need to analyze the risks and rewards and decide what works best for you.

 

[Blackroot]

the spiderman one is a parody because he is not doing spiderman like things. He is engaging in the mundane everyday activities and they are not "super" in any way. I'm not so sure there is a defense for the pac-man image, except it does not seem to draw from any actual direct art, though the characters are identifiable. As for your question. If your client wants a depiction of a cop pointing a revolver at a zombie girl, in the exact same camera angle, you may have issues if you "trace" the image (even if you change it up). May I suggest creating an original image inspired by this scene. Different camera angle, uniform, dress, girl....I bet you could come up with a more compelling/haunting image on your own with a hodge podge of references.

When I was studying illustration, I would take a photo of 4 different churches and piece different elements of each of them to create a new image of a church. This is a common practice.

Create a artwork based of the idea.