Can fan art containing the IP of superhero characters be sold? Let's say it's illegal for anyone to sell fan art they drew of Deadpool online for $4,000 because it contains the intellectual property (IP) of the company Marvel Comics. But what if they drew a crocodile wearing the Deadpool outfit. Does that count as copyright infringement as well, especially if used for comedic relief? And how about mixing a DC Comics character with a Marvel character to make a crossover hero fan art that sells as one unique artwork (not franchised) for $4,000. Is that illegal, especially if it's perceived by every viewer as being comedic in nature?
united-states Copyright First of all, copyright infringement is not, in the usual sense &quot;illegal&quot;. That is, it is not normally a crime. (It can be in extreme cases, but not the sort of thing described in the question.) What infringement is is a tort, that is, it provides grounds for the copyright owner to sue the infringer, and perhaps collect money damages and/or get an injunction (court order) preventing the infringer from continuing to infringe. Beyond that, let's consider what is meant by &quot;contains the intellectual property (IP) of the company&quot;, and what the consequences might be. Some of this will differ depending on the country. Since no country is stated in the question, I will mostly use US law in this answer, with mentions of where it is likely to be different in other countries. Damages The image of Deadpool, or any other comic character, will be protected by copyright. If a fan artist copies this image (or any of the many such images published by Marvel) or closely imitates it, that will be copyright infringement. Marvel could sue and likely win. Damages can be sizable. In the US statutory damages can be as high as $150,000 per work infringed (or as low as $750, as the court thinks just). See 17 USC 504(c) Or the owner can instead get actual damages plus any profits that the infringer made. (17 USC 504(b)). The owner might also get an injunction under 17 USC 502, seizure or deconstruction of infringing works under 17 USC 503, and possibly costs and legal fees as well under 17 USC 505. Derivative work If the fan art is not a close copy, but is clearly based on the original art, then it may well constitute a derivative work US copyright law defines this in 17 USC 101 as: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. The more &quot;distinctive elements and details&quot; of the original that are used, the more clearly the fan art would be a derivative work. Creating a derivative work without permission is infringement, an the same remedies (damages, injunction, etc.) are available as for a direct copy under 17 USC 502 thru 505. Fair Use However, there is a possible exception to copyright available, namely fair use. See Is this copyright infringement? Is it fair use? What if I don&#39;t make any money off it?. If a use is found to be a fair use, it is not an infringement. Fair use is defined in 17 USC 107](https://www.copyright.gov/title17/92chap1.html#107) which provides in pertinent part: ... In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Let's consider the fact pattern in the question in terms of these four factors: The allegedly infringing work is commercial in that it is being sold, almost suely for significant profit. Beyond that, the use does not seem to be transformative. Rather it seems to be used for much the same purpose as the original, so that the purchaser can enjoy the image of the character. If the fan art were making a criticism of or a comment on the original that would be different. As it is, factor 1 leans toward infringement, not fair use. The copyrighted work is creative and expressive, notr factual. This leans away from fair use. The fan art is probably taking a whole image, even if not a whole comic. This probably leans away from fair use, but more details might be needed. Selling individual images of the character is a market that the owner might well exploit, if it is not doing so already. The fan art might serve as a substitute or such an authorized image. Factor 4 leans away from fair use. There doesn't seem much chance of this fan art being held to be a fair use of the original, so that defense will not work. Note that when a work is a parody, it is often found to be a fair use. But in US copyright lay, a parody is a work that comments on or criticizes another work by means of retelling or reworking the source. A work that reworks or modifies a source merely for comic effect, or to criticize something other than the source work, such as to comment on society as a whole, or some social tend, is not ma parody in this sense. Such a work is sometimes described in copyright cases as a &quot;satire&quot;. A satire in this sense will not normally be found to be a fair sue because of its satiric qualities, although in some cases it may be found to be a fair use for other reasons. Consider the case of Suntrust Bank v. Houghton Mifflin Co. 268 F.3d 1257, 1259 (11th Cir. 2001). This case dealt with a novel called The Wind Done Gone. TWDG retold Gone With the Wind from the PoV of the enslaved characters. It reused many characters and plot incidents from the source work. It was clearly derivative. But the 11th circuit court held that a major purpose of TWDG was to comment on GWTW by retelling it in altered form, and thus it was held to be a fair use (after considering the other fair-use factors.) Note that the fact that the fan use is perceived to be comedic does not, in and of itself, make the use a fair use. It might contribute to the fan art being found to be somewhat *transformative, but quite possibly, which in turn possibly helps tip factor 1 toward fair use, but quite likely not enough. And it doesn't really affect the other factors at all.Again teh details will matter. Composite Works This commetn asks: ... Let's say the exception is that it's a parody that mixes two different studios' IP to make one blended character, an amalgam. And would be perceived as a humorous caricature to many upon seeing it. Does this make it a fair use parody derivative work that is non-infringing? Such a composite would be a derivative of two or more sources. If the was a suit for alleged infringement of any of these sources, there would need to be a fair use analysis in regard to the elements of the source work that it is claimed to infringe in that suit. How much of that source was used would be relevant, as would the effect on the market for that source. Only if it in some way commented on that source would it be considered to be a parody of that source. The mere fact that such an allegedly infringing wok drew on two or more different sources would not, on its own, make it a fair use. Of course, if it drew on mny different sources it might not use enough of any one to be considered derivative.. Non-US Law The major current international copyright agreements are the Berne Copyright Conventionand the WTO TRIPS Agreement. Article 2, paragraph 3 of Berne provides: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Article 9, paragraph 1 of TRIPS states: Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom. Thus the protection of derivative works under Berne and TRIPS is similar to that under US law. Fair Dealing In the UK and many members of the Commonwealth of nations, the key ewxception to copyright is known as Fair Dealing. The details vary by country, but the key areas covered are: Research and study For this defense to apply, the infringer must show that the dealing was for non-commercial research or private study, private study excludes any study directly or indirectly for any commercial purpose. Criticism or review For this to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgement Reporting of current events Parody, caricature and pastiche This seems to be rather broader than the US treatment of parody under a fair use analysis. None of these seem to apply to the situation describes in the question. &quot;Parody, caricature or pastiche&quot; might apply, but nothing in the question clearly indicates this.
You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting.
Yes it would be legal to do so. A full analysis would look at trademark law (where the bottom line is that the use of the Coke mark is not misleading since you are selling bona fide Coke), and copyright law. Whether it was non-infringing or fair use, is a closer call, but there is little doubt that one way or the other, this would be legal.
Under US law, and I believe under the laws of most countries, each of the various photographs of the apple would be protected by copyright. Thew initial owner would be the photographer, or perhaps the photographer's employer, in each case. Copyright protects expression, including both words and image. It does not protect ideas. The idea of an apple is not protected. The specific representation of a particular apple would be. If the painter imitates the specific feature of the apple shown in the photographs, to the extent that the painting is a derivative work of one or more of the photos, then the painter needs the permission of the copyright holder(s). Without that permission, creating the painting is infringement of copyright. However, if the painter merely took the general idea of an apple, and created a new expression of that idea, without using any of the specifics of the photos, there there would be no infringement. If the photos were instead images of an imaginary thing, perhaps a dragon, or some invented machine of building perhaps, with the images created by perhaps a compute animation program, or by photographing a model, the legal rules would be the same. If the painter simply used the idea from the photos, there is no infringement. If the painter used sufficient specific detail so that the painting is a derivative work, then permission is required. Exactly how much detail must be used for a work to be considered &quot;derivative&quot; is a matter of judgement -- ultimately the judgement of a court if the matter is disputed. There is no clear bright line making that distinction. That C has commissioned the painter T to create the painting is not relevant, unless C is the copyright owner of the photos, or has secured permission from the copyright owner(s). If C validly grants permission, then there is no copyright issue even if the painting is a derivative work. It does not matter what technique or technical means T uses to create the painting. T may use a brush, a pallet knife, a toy car, drips of paint, or a compute drafting program. If, by whatever means, T creates a derivative work, then permission is needed or else it is an act of infringement merely to create the work. If the work is not derivative, then no permission is needed. Copyright law applies no matter what specific technique the creator of an image uses, provided that human creativity is involved.
If the "Pokeball" image is copyrighted and/or a trademark of Nintendo/whoever makes the Pokemon games, then whoever put that image out there under CC 3.0 BY is in violation and can be sued and will probably lose, and you would be in violation and can be sued and will probably lose. Your penalty would almost certainly be less since your violation was "innocent", that is, you had no way of knowing that the "Pokeball" imagery was somebody's protected intellectual property. ... Except you kind of maybe should know that, unless whoever made the Pokemon games (Nintendo or other) put the image out there and you can verify that, that maybe this license could be bogus and you should consult with who you imagine the owner of that IP may be or an impartial professional who could tell you for sure. I'm thinking if it were me I would do a little more research - and maybe get a paid opinion - if I was really thinking about using this for any but private purposes.
Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not.
We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an &quot;®&quot; symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a &quot;™&quot; symbol, are protected as long as they are &quot;used in commerce&quot;. Which means that if the IP owner of that show still sells products branded as &quot;Winky Dink and you&quot;, they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that &quot;Winky Dink and Me&quot; is more infringing than &quot;My Winky Dink Syndrome&quot;, because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official &quot;Winky Dink and You&quot; product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney.
This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer.