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Posts Tagged ‘fair use’

Equity aids the vigilant

My last two posts have explored the question of artists taking elements of DC comics Batman character and using it in their own art. The issue was originally posed to me by a comic artist at a convention who wanted to know if DC could come down on him for incorporating DC characters into his work. Anyone who has ever attended a comic convention knows that the practice is common. Artists unaffiliated with the copyright holder will sell their “fanart” creations within full sight of the rights holders, sometimes even a few booths down. My first pass at explaining how a “fan-artist” could defend themselves was to explore fair use in the copyright realm. Fair use is a close call, and courts could go either way, so my main advice to artists was to keep it small. I wanted to explore one other theory that could protect artists: by doing nothing with the full knowledge of what artists are doing, DC triggers the ancient-yet-still-good doctrines of laches and equitable estoppel.

Laches acts to prevent a rights holder from bringing a claim if they have delayed for an unreasonable period of time and the delay makes it hard (or impossible) for the second person to defend themselves or change their ways. The theory behind laches is good old-fashioned unfairness and common sense.

About ten years ago one of the original screenwriters for the James Bond film series brought a suit against the movie company producing Bond claiming that he had created the film persona for Bond and that every Bond movie infringed his copyright. Like my exploration of Batman, the issue was over the copyright of the character, rather than a specific story. Kevin McClory had collaborated with Bond novelist Ian Fleming to create the script for Thunderball. McClory claimed the Bond character of his script was a new creation from the books and that he was therefore the author of “Bond” in film.

Promotional poster for Thunderball. Notice that McCrory is given a producer and "story by" credit.

 

The court never reached the question of whether or not McClory’s Bond had been infringed, he had simply waited too long. Laches asks three questions: did you delay? did you have a good reason to delay? did your delay make it harder on the person you’re going after. There are no hard rules to laches, no set time timetables, it’s up to the court’s common sense and past precedent. In McClory’s case, he had known about each Bond film for the past 30 years and said nothing. Over the course of time, key witnesses (like novelist Ian Flemming and screenwriter Richard Maibaum) had died and could not be called on to testify. Additionally, the movie studios producing Bond films had invested one billion dollars in creating and promoting the Bond franchise.

McClory had asked the court to give him some of the money from previous Bond film and prevent any more films from being made without his permission.  The court denied both. Ordinarily, laches doesn’t speak into the future, but it did that time.

Looking at comic fanart and laches, it is possible to see a court barring DC from coming after someone for drawing their own Batman. The analysis would turn on the specific facts of that artist. Imagine an artist who had worked his or her own table at the last ten San Diego comic cons, displaying, drawing, and selling their own Batman at each. A court could find that since DC representatives were also in attendance, and said nothing, they had unreasonable delayed bringing suit against the artist. The artist would then have to show that the delay had either cost them witnesses or caused them to create a business model dependant on the sale of Batman drawings. If one of those could be met, Laches would trigger and DC could not collect money from the artist. DC may still be able to prevent the artist from ever drawing Batman again, however. Even though the court in the Bond case extended laches protection into the future, they had specific reasons on those facts which would not be present in all cases (namely, the death of Flemming and Maibaum made it impossible to sort out who had truly “invented” Bond).

Equitable estoppel prevents a rights holder who has indicated to another that certain behavior is okay from then coming back and suing after the second person has invested time/money/etc. Trivia: estoppel is a legal term meaning “to prevent or stop.” I don’t know why they can’t just say “stop.” I wondered the same thing in law school 😛

Also about ten years ago, Dan DeCarlo, creator of Josie and the Pussycats, sued Archie Comics, claiming that they had stolen control of Josie (the character) from him. Equitable estoppel asks four questions: did the rights holder know of the second person’s use? did the rights holder’s action or inaction indicate to second person that use was okay? was the second person ignorant of rights holder’s objections? did second person suffer financial harm in reliance on rights holder’s action or inaction?

The credits (down and right from the

 For Josie, the analysis was: yes, DeCarlo knew of Archie Comics use of “his” characters in continuing comics, merchandising, and television shows. Yes, his inaction signaled to Archie Comics that it was okay for them to do so. Yes, Archie Comics was unaware that DeCarlo still considered the characters his. And yes, Archie Comics had relied on DeCarlo’s inaction in their marketing of the Josie brand.

Turning again to comics and fanart: Yes, DC knows of many artists who regularly draw Batman and other characters without paying fees or giving credit to DC. Yes, DC’s inaction has created an environment where people actually think it’s okay. Maybe, depending on the facts, the artist is unaware that DC disapproves of the fanart. And yes, many artists rely on DC’s inaction in forming their business model to draw and sell Batman sketches. Specific facts in a given case could change the analysis.

DC’s lack of response to unaffiliated artists may have created protection for those artists they would not otherwise have had. Their conduct, and the cases I’ve noted, also serves as a warning to up-and-coming artists. Both McClory and DeCarlo were freelance artists who contributed to the creation of what became a successful franchise. Neither enjoyed the rewards of that success because they waited too long. Most likely, the release of the Bond DVDs and the release of the Josie movie inspired the men to act. They sensed new money from their old ideas, and sought to get in on the pie. This is a cautionary tale to all other freelancers out there. Be vigilant about what you create. Even for a property you’ve licensed or contributed a portion to, keep on top of the uses. If you don’t like what’s happening, speak up, send emails, get a lawyer to write a cease and desist letter. Don’t wait for it to make money. You don’t have to sue to keep your rights alive, but you do have to demonstrate vigilance.

Last thought. Both DeCarlo and McClory were co-authors in the respective franchises. Co-authorship is the starting point for nearly all forms of copyright disputes. My next post will focus directly on co-authorship and what the individual artists can do to protect themselves.

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To follow-up my last post, and in response to a couple of conversations I’ve had lately, I wanted to try to sharpen the picture regarding fair use. I recently told a friend and playwrite that using the fair use doctrine is like running a yellow light. It’s risky, you’re on the verge of having done something wrong, but if you did it “just so,” you did it right. When running a yellow light, it matters if a traffic authority sees you, and it matters what his or her perspective of you is. Outside influences can make a difference, a reckless driver who runs a yellow is more likely to get pulled over than someone who is doing everything above reproach except for running the yellow.

Running a yellow light is legal, running a red light is not. Fair use is legal, unauthorized derivatives are not. What makes for properly executed fair use? Read on.

Because I like examples, and because I like Batman, we’ll turn again to the Dark Knight as a test subject. Instead of fan art, however, we’ll look to the silver screen and consider Nicholas Cage’s Big Daddy from Kick-Ass. [SPOILER WARNING: I’m going to refer to details from Kick-Ass that give away some of the plot. If you haven’t seen it, read with caution. Also, see the movie, very funny, it may still be in some cheap shows and it hits DVD August 3].

First, the original work must qualify for copyright protection. As I previously wrote, copyright usually applies to specific works, but it is conceivable for highly distinctive characters to achieve a protected status. The Batman character as depicted in both comic and film qualifies as a protectable character.

Christian Bale as Batman in the most recent film. the visible features of Batman are part of the protected property: cape, cowl, utility belt, insignia. The idea of the man who dresses up as a bat because of a previous crime in which he lost family is also a part of the property.

Nic Cage as Batma... uh, Big Daddy in Kick-Ass. Cape, cowl, utility belt, the lack of insignia is all that's missing. Big Daddy shares a similar back story of losing a loved one to organized crime giving birth to a vendetta.

Copyright grants to the owner the exclusive right to make derivative works based on the original. If a second work is derived from the first, it must either be done with permission or be a fair use. The character Big Daddy, as depicted in the movie, borrows from many of Batman’s key elements. Yes, there are plenty of original elements to Cage’s portrayal, but the character is also clearly derived from DC’s iconic hero. Cage’s original elements will be key to the fair use analysis, but it doesn’t change the work from being a derivative, it’s just an allowed derivative.

Fair use is complicated and muddy, allowing courts a great deal of latitude, but the basic elements that will be considered are:

1. the purpose and character of the use

2. the nature of the original work

3. the proportion that was “taken”

4. economic impact of the “taking”

No one element is controlling. The elements are not taken individually, but rather in tandem with one another. A use could fail on two or more elements, but the great weight of the use could still favor finding it a fair one. Looking specifically to the use of Big Daddy.

1. Purpose and Character of use includes public vs. private and commercial vs. non-commercial. Private, non-commercial uses are more favored for fair use. Educational uses, especially non-profit ones, are favored. Parody use is favored. The more the second use “transforms” the original work, the safer it is. Big Daddy is a commercial, public use. Kick-Ass was distributed on a wide scale with the goal of turning a profit. However, Big Daddy is also a clear parody of Batman. The basic elements are taken, but then expanded, comic value is added. Big Daddy is ruthless toward the mob, just as Batman is, but unlike Batman, he uses guns. Big Daddy employs a fake mustache, lampooning the idea of changing appearances to fight crime – a great comic touch as Big Daddy has a regular mustache by day and an even bigger mustache in costume.

Big Daddy 1, Batman 0.5.

2. Nature of Original Work. This factor is tied closely to the fourth (economic impact). It basically asks when the first work was published. Social statement? Educational text? Mass-marketed to maximize profits? Batman may well be a social statement, but the franchise is just that, a franchise marketed for the purpose of making money. Neither DC or Warner Bros. (which owns DC and distributes the current run of movies) means for Batman to do anything for them but bring in the green.

Big Daddy 1, Batman 1.5.

3. Amount Taken. This is a critical factor for a parody, for a parody must take some for the target of the lampooning to be clear, but may not take too much or it simply making money on another person’s idea, rather than making money from making fun of another person’s idea. Big Daddy takes some of Batman’s core elements, but the character doesn’t take too much, only what is necessary for the audience to know “we’re mocking Batman,” The rest is original. If the target is well identified and the lampooning is well targeted, the taker can actually keep taking. For example, Nic Cage’s speaking cadence when in costume is taken from Adam West’s Batman in the 60’s television series. He took an element not needed to make the identification, but then he had fun with it. Another additional taking was the not-so-subtle reference to the Bat signal:

Big Daddy 2, Batman 1.5

4. Economic impact on the original. Often misunderstood, I have heard people say that so long as they aren’t making money, it’s a fair use. Not true. The question is not “are you making money?” It is “are they not making money because you usurped them?” One last complication, if they lose money because you spoiled the public’s taste for their product, you’re okay, the issue is are they losing money because you met the consumer’s need for the original. Kick-Ass and Batman are rival films vying for consumer dollars. Although not released in direct opposition, DVD sales, Netflix, and On-demand make the analysis worthwhile, if not crucial. Kick-Ass will probably enjoy some sales at Batman’s expense, but if it does, it will do so because people prefer it as a superhero movie or because Nic Cage has forever ruined people’s ability to take Christian Bale’s performance seriously. Both of those are okay. A court would not find that Kick-Ass fulfills people’s need for a “Batman Movie,” that’s the analysis, and Kick-Ass wins.

Big Daddy 3, Batman 1.5. Game Over. Fair Use. Don’t mess with Daddy!

Two points in closing.

First, if it isn’t obvious, I liked Kick-Ass. I got the joke. This makes a difference, just as a sports car is more likely to get pulled over than Volvos, it matters if a judge or jury likes the second use. It’s not fair, but it’s reality. This is one reason why utilizing a lawyer can benefit an artist claiming fair use. Lawyers specialize in framing issues in a way that court’s will find more palatable.

Second, I wrote about trademark fair use in a previous post, but it’s worth noting here that the line in Kick-Ass “he looked like Batman” is a trademark fair use of the “Batman” trademark. The line was talking about Batman, and isn’t likely to confuse the audience into thinking that Kick-Ass was in some way endorsed by DC or Warner Bros.

Parody is the easiest of fair uses to define and protect, but the basic analysis is the same in all instances. Purpose of second use, nature of original work, amount taken, economic impact. My educational use in this blog is subject to the same analysis, in my case: 1. education, non-profit use, 2. Batman & Kick-Ass both commercial original uses, 3. my clips and pictures were just large enough to emphasize my point, 4. no one is going to skip seeing either movie because my blog usurped the core property. I win.

An even simpler stating of the fair use analysis is “Transformative qualities vs. Economic impact.” Have fun, use fairly, drive safely.

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