Monday, July 31, 2017

Fan Art & Fair Use - An Update

I’m frequently asked about fan-created works. I’ve written about my thoughts on the matter previously here, and generally, my thoughts on the matter remain the same: if you don’t own the rights to the characters you are drawing, you are probably in violation of someone’s intellectual property rights. Recently, rulings have been made in two cases involving works akin to fan art that will perhaps provide some guidance.
            First, we have the Axanar case. I previously wrote about the Axanar case when Paramount and CBS released their fan art guidelines. Briefly, Axanar Productions was attempting to create a feature-length film based around a character who appeared in an episode of the original Star Trek series, Garth of Izard. Axanar raised over $1 million on Kickstarter to fund its production and was planning on hiring people who had worked on Star Trek productions in the past. In 2015, Paramount/CBS sued for copyright infringement. In January, the judge hearing the case ruled Axanar was not entitled to a fair use defense in its work, and the case was settled shortly after. For more information, see the Hollywood Reporter coverage.
            Our second case also involves Star Trek, but in this case, a different rights-holder is suing. ComicMix, LLC started a Kickstarter campaign to fund a mashup of Dr. Seuss’ Oh, the Places You’ll Go! and Star Trek called Oh, the Places You’ll Boldly Go![1] It did not have permission from Paramount/CBS or from Seuss Enterprises.[2] Seuss Enterprises sued ComicMix for copyright and trademark infringement.[3] In addressing ComicMix’s Motion to Dismiss, the court weighed the four factors of fair use and found it evenly weighted between the two parties.[4] As such, it could not dismiss the case. Additionally, the court found the ComicMix work was not a parody.[5] The work used Go!’s style and format to tell stories from the Star Trek canon.[6] However, the court did find the work transformative because it creates a completely new work from the two source worlds.[7] The court also dismissed the trademark claims.[8]
            Initially, these two cases might seem at odds with each other, but they can easily be reconciled. They also shed light on questions surrounding fan art. The Axanar case involved a work heavily reliant on the Star Trek universe to tell its story. Since it sought to develop a character and story line first mentioned in the original Star Trek series, it is easy to clarify it as a derivative work. It primarily used Paramount/CBS’ intellectual property to create a new work. However, the ComicMix case involved a mash-up. As the court points out, it blends two different intellectual properties together to create a new work. [9] The court recognized mash-up works as an emerging culture and did not want to categorically eliminate this form of art.[10] Whether or not a mash-up work qualifies as a fair use will be a case-by-case determination, and in the ComicMix case, it is still to be determined whether Oh, the Places You’ll Boldly Go! will qualify as a fair use.[11]
            As I mentioned in the beginning, if you don’t own the rights to the intellectual property you’re using in your fan-created work, you could be infringing on someone’s rights. Even though you might believe your work qualifies as fair use, it’s likely you will have to go to court to assert your fair use defense. As both of these cases illustrate, courts determine fair use on a case-by-case basis, and you can easily find yourself on the wrong side of a copyright infringement claim.  Especially since there is not a clear line demarcating the point of infringement. If you are creating a piece of work using someone else’s intellectual property, tread carefully.  

[1] Dr. Seuss Enters., L.P. v. ComicMix, LLC, No. 16cv2779-JLS, at page 2 (S.D. Cal. 2017).
[2] See Cullins, Ashley, Dr. Seuess Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3, 2017,, (last visited July 28, 2017).
[3]Id. at page 3.
[4] Id. at page 13.
[5] Id. at page 8.
[6] Id.
[7] Id.
[8] Id. at page 20.
[9] Id. at pages 8, 12.
[10] Id. at 12.
[11] See Cullins, Ashley, Dr. Seuess Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3, 2017,, (last visited July 28, 2017).

Monday, July 3, 2017

The Batmobile and the Bounds of Copyright Protection

           When can a character be protected by copyright? Over the years, it has been an interesting question for courts to address. In early cases involving Superman, the court found the character was sufficiently different from stock Hercules-type characters to warrant copyright protection.[1] A more recent example was addressed in Gaiman v. McFarlane (briefly discussed here); the Seventh Circuit looked closely at the Cogliostro character to determine if the character was more than a stock wizened, wise wino.[2]
            In 2015, the Ninth Circuit Court of Appeals revisited the question of what characters can be protected by copyright in DC Comics v. Towle.[3] At issue was whether the Batmobile could be considered a character entitled to copyright protection.[4]
            Mark Towle made and sold replicas of the Batmobiles from the Adam West TV show and the Michael Keaton movie.[5] They were near-exact replicas, and he also advertised the cars as the Batmobile and used bat motifs throughout the vehicles.[6] In 2011, DC brought a lawsuit against him alleging copyright infringement, trademark infringement, and other causes of action.[7] The district court found Towle’s actions in reproducing the Batmobile constituted copyright infringement.[8]
            On appeal, the Ninth Circuit upheld the lower court’s decision.[9] The central part of the Court’s decision revolved around how “‘sufficiently distinctive’” a character must be in order to receive copyright protection and whether the Batmobile met the requirement.[10] In analyzing the Batmobile, the court found (1) “it has ‘physical as well as conceptual qualities,’ and is thus not a mere literary character[,]”[11] (2) it is “recognizable as the same character whenever it appears” because it is almost always high-tech, has bat-like features, and has consistent features, and character traits,[12] and (3) it’s “‘especially distinctive’ and contains unique elements of expression” because of its sidekick-status, character traits, physical characteristics, and recognizable name.[13] Because the Batmobile satisfied the court’s three-part test, it ruled the Batmobile to be an “‘especially distinctive’ character entitled to copyright protection.”[14] Because the Batmobile is entitled to copyright protection, Towle’s faithful reproductions of the Batmobile constituted copyright infringement.
            The court’s decision further paves the way for copyright protection to extend to non-traditional “characters” in comic books so long as they meet the criteria set forth by the court. It’s good to keep this case in mind as you create your work and realize that copyright protection can apply to inanimate, side “characters” in addition to your main creations.

[1] See Detective Comics v. Bruns Publications, 111 F.2d 432 (2nd Cir. 1940).
[2] See Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004).
[3] 802 F.3d 1012.
[4] DC Comics, 802 F.3d at 1019.
[5] Id. at 1017.
[6] Id.
[7] Id.
[8] Id. at 1017-18.
[9] Id. at 1027.
[10] Id. at 1019.
[11] Id. at 1021 (citations omitted).
[12] Id. at 1021-22.
[13] Id. at 1022.
[14] Id. at 1023.