Is Sharon Moody a Copyright/Trademark Infringer?

When I was in charge of rights and permissions at DC Comics, in the 1980s, we tracked down any infringements we became aware of, and told the infringers in no uncertain terms (often as a letter directly from our lawyers) to cease and desist. This meant telling people to stop using the distinctive (and trademarked) Superman symbol. This meant telling people to stop using the distinctive (and trademarked) Superman telescopic logo lettering. Of course it meant telling them to stop using his image.

The guy who put Superman on his wedding invitations thought we were poor sports, and did not understand that he was violating copyright and trademark by swiping a specific Superman image and republishing it himself (or paying a catalog company to do it for him). He was infringing on DC Comics’ right to exploit the Superman image in wedding invitations. This might seem trivial, but it’s not. When Hallmark recently obtained a license to market Green Lantern greeting cards priced at $7.99 each, it surely paid for the exclusive right to do so, not to have competition from anybody with access to a copier and some card stock. Licensing of comics characters has had a long and lucrative history. DC Comics naturally had to protect its right to control its copyrighted and trademarked images.

The guy who spent thousands to have Superman painted on his tour bus was even more upset that DC Comics was unwilling to let someone else make money off the Superman character. He didn’t realize that the painter was ripping DC Comics off. He probably didn’t care, either, but my duty was to inform him (and our law department) that an infringement had occurred.

The recent case Scott Edelman cited [ed. note: he’s my husband] of artist Sharon Moody creating works of art by copying entire comic books spread open and creating a trompe l’oeil effect on an otherwise blank canvas has several infringement implications. I’m not a lawyer, but I was trained by one at DC Comics, and here’s what I see as the potential legal problems inherent in her utterly faithful copies of the original publications:

1. The commercial use of a significant amount of any publication, rather than a panel excerpt or up to about fifty words of text, is not fair use. It requires permission by the copyright holder, and such permission usually carries a fee based on the profit involved in the re-use. If one of  Sharon Moody’s paintings of a Batman comic page sells for $50,000, she would be expected to pay DC Comics a very hefty chunk of that sale price. Such a deal would have to be negotiated before she copied and sold the material; otherwise, the rights owner could sue her to obtain all her proceeds.

2. The reproduction of any published printed copyrighted material requires a copyright notice. Although there are many instances on the Internet of people grabbing a panel here or there, or a figure, to illustrate a website article or a blog post, or even entire pages to amuse friends on Facebook, these are properly accompanied by a copyright notice. They only escape a cease and desist letter because they are not commercial use and/or they are too small and random to come to the attention of and infringe on the rights owners’ commercial rights. Sharon Moody’s artwork is on display for sale to the public in an uptown Manhattan gallery, which makes it commercial, and potentially neither small nor random, depending on the prices realized for each of her copied canvases.

3. Sharon Moody’s exact copies of published comic books can be construed both as plagiarism and as muddying a trademark. (There’s a technical legal term for the latter and I’ve forgotten it. Sorry.) In a court case, the comic book companies could make a compelling argument that she is aware the general public will mistake the pages she has copied for her own original work rather than copies of previously existing work. Their argument would be that she is passing off someone else’s work as her own. The evidence would be that she does not credit any of the original creators of the physical artwork or the words, or the copyright holders.

Most infringements are “mistakes,” that is, they are perpetrated by ignorant people who do not know anything about copyrights or trademarks. Characters such as Superman or Batman have been popular for so long they have entered the zeitgeist and therefore many people imagine they in some way belong to all of us. Perhaps they do, morally or culturally. However, both the copyrights and the trademarks of comic book characters have been the subjects of extended lawsuits for decades now. It would be hard to claim ignorance of their vast commercial value. Anyone trying to cash in on such commercial value without license runs the risk of being sued.

There’s another side to infringement enforcement, and that is what might be called plausible denial. When I did rights and permissions for DC Comics, we routinely looked for potential infringements, but we knew we probably missed some. As long as we could show a court that we vigorously defended the copyrights and trademarks every time we found an infringement, we could keep our legal right to them. Ignoring blatant commercial infringements is the road to losing those rights, which is a commercial catastrophe. Sharon Moody can call this art, but especially if big money is involved, it’s commerce.

Some comic book artists have helped support themselves in their old age by re-drawing comic book pages they were hired to originally create as works for hire for the companies in years past. Usually, the companies look the other way instead of pursuing these elderly artists for this kind of commercial use, presumably because it doesn’t involve enough money to be worth the lawsuits, and it would result in bad press. In fact, Disney did pursue the artist Carl Barks for making such copies, but backed away from the bad publicity the move generated. Bob Kane, known for his involvement in the creation of Batman, also used to sell paintings of Batman, without being sued. Thus Sharon Moody’s lawyers would have a potential rebuttal, that an artistic, single use has a pattern of being tolerated by the rights owners.

So, is Sharon Moody an infringer? By the standards I was taught while employed at DC Comics, yes, but it’s for a court of law to decide. The comic book companies may choose to ignore her. I don’t think any company bothered to sue Roy Lichtenstein for his many blatant copies of individual comic book panels in the early 1960s. Then again, he didn’t swipe entire pages, use photographic accuracy, or copy famous superhero character images and their trademarks. He wasn’t in any way threatening their licensing value. There wasn’t a Captain America movie then, or a Batman movie franchise. Less was at stake.

Categories: Comics | 18 Comments

Post navigation

18 thoughts on “Is Sharon Moody a Copyright/Trademark Infringer?

  1. Jason

    The legal term that you are thinking about in part (3) is probably “trademark dilution.” Great write-up, BTW.

  2. Thank you for shedding some light on the trademark/copyright aspect of the work, Irene. In the last 24 hours we’ve read a lot of commentary that focuses on the artistic merit of the pieces, but little clear examination of the legal ramifications.

    Reading opinions about whether Moody’s an artist or not, or a good artist or bad, may be entertaining. But that’s really individual preference. We’re much more interested in how the courts might view Moody’s work from a factual perspective.

    It seems to hinge on whether or not a commerical purpose exists. For example, if Moody simply made these paintings and gave them to a friend, it’s an entirely different ballgame. The copyright problem seems to exist only when money exchanges hands.

    But your example of the wedding invitations suggests that even a non-commercial usage can be infringement. Unless the wedding charged admission fees, there doesn’t seem to be any commercial usage there.

    And that may be a big deal for the ever-growing comic book blogger community. If we share a page from our favorite comic book for non-commercial purposes, are we non-commercially infringing in the same manner as a homemade wedding invitation?

    Thoughts?

  3. Pingback: A few further thoughts on the artwork of Sharon Moody ‹ Scott Edelman

  4. irenevartanoff

    I don’t think any of us have to worry about using comic book artwork in a blog, but it’s not my call. When comics fandom was getting started, there was trouble over even depicting Captain Marvel–drawn by a fan artist–on one page in a fanzine, Alter Ego. Roy Thomas could tell you about that.

    The issue with the wedding invitations was that they were professionally printed cards, a category that DC Comics licensed even at the time. DC did not do anything to the guy, BTW. We didn’t even send him a cease-and-desist letter. I just wrote him and politely told him (as I was instructed to do by our lawyer) that it was infringement, so, basically, knock it off.

    Here’s a different example. Marvel Comics licenses companies to make Halloween costumes of their characters. What if an independent costume company makes a Spider-Man suit and then rents it out to the public? The individual who wears the suit may be wearing it to a private party, which clearly is personal use. But the company that makes the suit owes Marvel Comics a royalty just as much as the Halloween costume manufacturer does. When I worked at Marvel, we had some Spider-Man costumes professionally made, at significant expense, for promotional events. They were accurate. Allowing just anybody to sell a Spider-Man costume without any oversight or control by Marvel Comics not only dilutes Marvel’s ownership rights, but also allows inaccurate knockoffs to abound. And once again, some other commercial entity is trying to make a buck off a character it does not own.

    Fashion designers don’t have the copyright and trademark protections publishers and many other manufacturers do, so they have to endure their best ideas being used and misused by others in cheap fabrics, with haphazard sewing, and even in counterfeits. Owners of copyrights and trademarks are better positioned under the law. Whether they choose to go to the expense of a lawsuit is a different issue.

    This whole copyright/trademark issue would be a lot clearer morally if the true creators of Superman, Spider-Man, and the other characters owned their creations. Then, I think most of us would be outraged that one artist was ripping off another. That’s how we’d view it. Aren’t most of us upset at the car decal ripoff of Calvin and Hobbes that is on the back of just about every pickup truck in America? That’s a blatant infringement, but Bill Watterson has not had the legal clout to quash them. Disney, which owns Marvel Comics, has the unrestricted cash to sue and win this kind of battle. Whether Disney will bother is anyone’s guess, and the same with DC.

  5. Yes. We see a clear difference between fan art and the Calvin car sticker. Of course, a magazine that charges a cover price then has a commerical interest in printing the fan art, so it’s clear that copyright becomes involved at that time.

    Comic book fandom has long been known for creating fan art in non-commercial ways. You draw it, you show your friends, you tape it on the wall. Now with the internet, we can share it much more widely. But that may take us into territory that has little legal precedent. For example, if FanX posts her drawing of Black Panther on her fan site, and the site is enable for Google AdWords, then does she have a commercial interest in sharing that image?

    To broaden the question, let’s imagine FanX gets her picture taken in her home-made Spider-woman costume in front of a McDonalds. She posts it on her site. Her post contains affiliate links to costume-making books and sewing machines on Amazon. Now is she open to suit from both Marvel and McDonalds for commerical use?

    As fans equipped with the web, these are things we wonder about, Irene, and we appreciate your taking the time to write about them. We don’t expect free legal counsel from you, but it is refreshing to find someone both knowledgable and communicative.

  6. irenevartanoff

    Since I am not a lawyer, expecting legal counsel from me–free or otherwise–would be a big mistake.

    You pose interesting questions.

  7. Pingback: Why a comic book isn’t a Hershey’s bar ‹ Scott Edelman

  8. But, what if the person or company wasn’t using the logo, image, or distinct symbol? Could they still use the word?

  9. Irene Vartanoff

    We’re talking trademarks. Those definitely involve visuals. Also, copyright depends on an arrangement of words, not the words themselves. It would be a strange world if I could not use the word “world” because you held the copyright to it.

  10. Robert Forman

    Hi Irene. Got led to your web sites through the Mark Evanier link. After reading this post I happened to notice this article in the New York Times:
    http://www.nytimes.com/2013/09/11/arts/music/a-copyright-victory-35-years-later.html?_r=0&hp=&adxnnl=1&adxnnlx=1378916217-jjC9DR42PvuT/ZK901aR8w

    Basically, its about a member of the Village People using a 1978 law. “That law granted musicians and songwriters what are known as “termination rights,” allowing them to recover control of their creations after 35 years, even if they had originally signed away their rights.”

    Too bad the law didn’t include artists. Anyhow, thought you might be interested.

  11. Irene Vartanoff

    I believe this right of termination is available to writers, too. I heard some discussion of it lately when some writers were contrasting the pros and cons of self-publishing versus those of going with a conventional publisher and contract. The problem stems from the reality that publishers do often deliberately obstruct return of rights after a few years even though their efforts to sell the title have ended and they don’t even have more than one copy in the warehouse. So why make the author wait for 35 years? Because the publishers view all but the most famous and bestselling authors as serfs.

    “YMCA” might still make the Village People some money today, since it has become a staple. But most novels become historical oddities after 35 years, unlikely to draw a significant audience. The plain fact is that big companies too often squeeze the creative juice out of young, ignorant, and relatively powerless (certainly lawyerless) people in lousy deals that rip off the creators, and then do all they can to prevent the creators from regaining their rights. I deplore this all-too-common practice.

  12. Robert Forman

    Thirty five years is way too long, but it’s better than “never”. I can’t cite anyone in particular, but it seems to me that there have been a lot of musicians/writers/artists who have complained that their work is out of print and the publisher has no interest in re-releasing it, but at the same time won’t give the artist the ability to do it themselves. Nowadays with e-books and mp3 downloads it is easier to publish your own work, so even with a limited audience I think it would still be possible for a creative person to reclaim their work and perhaps still make a buck or two off of it. I don’t see this “Right of Termination” as being of much use to someone selling their work today.

    I just looked in Wikipedia to see what Jack Kirby created in 1978. I know it’s pretty trivial, but does this law give his heirs the right to reclaim Devil Dinosaur?

    • Irene Vartanoff

      Not if it was work for hire.

      The people reclaiming their rights had rights in the work to begin with and a contract that acknowledged that. Thirty-five years is marginally okay if you signed your original contract at age 19. Not so wonderful if your book was published when you were 55. Regardless, the publishers who won’t release rights when asked are dogs in the manger.

  13. Hello I am actually trying to go the legal way and get permission from DC comics to use my version of two of their most famous trademarks, but can´t seem to get through on their web. Could you tell me who I would have to contact for that? Thank you.

    • Irene Vartanoff

      Look up their address in New York (which theoretically is in the indicia of every comic they publish), and mail a letter addressed “Attn.: Rights and Permissions” to DC. Or call to find out who handles rights and permissions. That’s my best guess.

  14. Thank you for your answer.

  15. Pingback: Comic Book Legends Revealed #455 | Comics Should Be Good! @ Comic Book Resources

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com. The Adventure Journal Theme.

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: