With Comic-Con International 2016 right around the corner (July 20-24 including preview night) in San Diego, I am sharing a question that comes up quite often in my practice in Business and Intellectual Property Law. The question, often involving famous comic characters and celebrities, goes something like this –
Q: I created an art piece for my grandson that contains a famous cartoon character on it. Can I sell these to others since I made them? I am interested in selling them online in marketplaces like eBay and Etsy for profit.
The question also involves artwork and crafts including celebrities, sports athletes, and other famous characters. Without knowing it, the asking party just asked a very complicated question as this simple inquiry triggers various area of the law including:
- copyright law
- business law
- first amendment rights (under certain circumstances)
- privacy laws (under certain circumstances)
- publicity rights (under certain circumstances)
- cyberspace laws
- and more
This simple question requires plenty of legal analysis to fully provide an answer and a recommendation. However, for the sake of brevity, it is generally unlawful to use the image of a famous cartoon character to generate your own products for commercial sale. But let’s consider things further.
Let’s assume that the drawing is such a success with your grandson that you decide you’re going to use it for use with your online store in a well-known marketplace and will also use it for marketing purposes for your business. Upon using the image for commercial purposes, you’re exposing yourself to liability for unlawfully using a person’s liking or a person’s copyrighted work without permission. If you make 1 single sale in a private setting, you open yourself for exposure. However, from a practical perspective, it’s very unlikely that the Marvel brand or large company will pursue a claim. On the other hand, if you wind up being the next big thing on the market thanks to the you should expect a lawsuit for damages. Other things to consider are how you’re using the work, whether you transformed the image in any way, and many other factors.
If you have a similar question like the one above you should speak with an intellectual property attorney before proceeding to fully analyze your question and determine whether to move forward with your plans. Factors analyzed include:
- what image are you using?
- is the work protected y copyright registration?
- did you ask for permission from the creator?
- if the work involves a person, does the person know about your use?
- where did you get your image from?
- did you copy the image or transform it in any way?
- what are you using it for?
- are you engaging in private sales or commercial sales?
- other questions depending upon your circumstances
Note that this type of question is complex and requires serious factual analysis.