Legal Question

RMThompson · Aug 8, 2007

OK, here's one for the experts.... lol

I was thinking of ways I could make a few extra bucks, and a friend of mine had a suggestion that ties photography with my other love, comic books.

Is it legal to sell photos of girls in Comic Book costumes?

There are a large number of models in my area who are into making and posing in super hero costumes anyway, and I think they could really really sell... but is there a legal issue if the character they are depicting is a copyrighted figure?

Whatchoo think?

BAB · Aug 8, 2007

That could be a very sticky issue. The only way to be sure is to check with an attorney, because anything else is just speculation.

Jeff Canes · Aug 8, 2007

Yes or Maybe, because the cartoons are copyrighted, the copyright holder may find the photos degrading to there copyright

Big Mike · Aug 8, 2007

I would certainly think that any logo would be heavily copyrighted and you couldn't use them without paying for it. The question would then be how close you could get to the models looking like the characters, who are probably copyrighted as well. I don't think they could copyright a color scheme or red & blue...but if you had a Superman costume, just without the logo on the chest...is that still copyrighted? That's the grey area, I would think.

Of course, this is just speculation. Contact a lawyer for actual advice.

lifeafter2am · Aug 8, 2007

I am going to try and contact my uncle on this one. He is a Patent attorney, and I figure that he should know about this. I would think that copyrights and patents are pretty close.

Garbz · Aug 8, 2007

I can guarantee you it's legal in Japan. There's an entire industry based around it :lol:

skieur · Aug 8, 2007

Strickly speaking, if it is legal to produce and manufacture the comic book costume, it follows that it would be legal to wear it and have your photo taken in it. (Halloween and costume party photos as an example.)

The legal issue then becomes the nature of the shot and its use and this is where it becomes complex. Does the shot degrade the image of the cartoon character? Could the shot be mistaken for one from one of the Superman or Spiderman movies? Is the shot being used for some purpose which is the sole right of the owner...i.e. entertainment, promoting a product, event, etc.? These are just a few of the relevant legal questions.

skieur

WDodd · Aug 8, 2007

The only reason I would question it is because of the sale of the pictures you plan on taking.

Skieur, I'm sure the company that manufactures the comic book costume has to pay some sort of royalty to whoever owns the character rights. However your second point is absolutely correct. I would also think that the owner of the character rights might want some sort of compensation for their character being used for the pictures as well.

One of my film major friends has to be very careful about what music and sound effects he uses for this reason. There is a large database of free content otherwise he would have to purchase rights of course to use the song, I'm thinking it would be the same for the character.

RMThompson · Aug 9, 2007

Well here is my thinking.

If I sold them as "Model Judy Smith as The Dark Phoenix" I should be OK, because I am not saying that she IS the Dark Phoenix, merely this one model's interpertation.

Furthermore, I don't know about the logos and what not, because is it illegal to sell a picture of a guy running down the street with NIKE shoes on? Or someone with a Ford logo shirt?

I remember reading a legal precedence set when someone took a picture of someone who sported a "FORD" tattoo. The judge ruled that because the public had REASONABLE DOUBT that he was actually associated with FORD, it was legal to not only WEAR the tattoo, but take pictures of it.

RMThompson · Aug 9, 2007

skieur said:
Strickly speaking, if it is legal to produce and manufacture the comic book costume, it follows that it would be legal to wear it and have your photo taken in it. (Halloween and costume party photos as an example.)

The legal issue then becomes the nature of the shot and its use and this is where it becomes complex. Does the shot degrade the image of the cartoon character? Could the shot be mistaken for one from one of the Superman or Spiderman movies? Is the shot being used for some purpose which is the sole right of the owner...i.e. entertainment, promoting a product, event, etc.? These are just a few of the relevant legal questions.

skieur

Skieur, you've always been knowledgable about this stuff, and since I dont have the money to ASK a lawyer, Id like to hear more of what you think.

I plan on taking the pictures in my home, of a few models wearing costumes that they MADE THEMSELVES, not something that was licensed to someone else, and then sell the prints of these women in various Superhero poses at a comic convention.

Big Mike · Aug 9, 2007

You might also run into trouble or get the models into trouble with the home made costumes. I would think that if they made the costumes themselves and copied the logos, they would be in breach of copyright law. Of course, there isn't much to enforce if they just wear them in their own houses...but taking photos for sale is a different issue. Technically speaking, I would think that they could even get into trouble by wearing (homemade) copyrighted logos in public.

As far as naming the model 'as The Dark Phoenix'...I don't think that would fly. Looking at it from the comic owner's point of view, that character and the associated logos are their intellectual property, and you shouldn't have the right to sell images/photos that depict that, without some sort of compensation.

I think the way you could get around this, without paying royalties, would be to have the girls in costumes that aren't exactly like the actual characters. A different logo, for example. That could even get dicey if the color scheme and what not, is the same. I'm guessing that if you got sued, it would come down to a judge's opinion as to weather or not your model was recognizable as the copyrighted character in question.

If they had 'generic' costumes, then there would be no issue.

As always, I'm not a lawyer so take my advice for what it's worth.

BAB · Aug 9, 2007

RMThompson said:
Skieur, you've always been knowledgable about this stuff, and since I dont have the money to ASK a lawyer, Id like to hear more of what you think.

I plan on taking the pictures in my home, of a few models wearing costumes that they MADE THEMSELVES, not something that was licensed to someone else, and then sell the prints of these women in various Superhero poses at a comic convention.

Not sure what attorney's charge in your area but my attorney charges $150/ hour which translates to $37.50 for 15 minutes of time, which is all it should take for an attorney to answer the question you have posed. For $37.50 if the attorney say's no problem, you can do your project with out worrying about it and if the attorney say's no way then you would save yourself lot's of $$$$, time & agrivation in a lawsuit. Seems a small price to pay for piece of mind.

RMThompson · Aug 9, 2007

The thing is Mike, that there are a LAAAAAARGE number of Penciler's at these conventions that will draw almost any character you want.

Furthermore, there are even MORE people dressed up. Haven't you seen pictures ever from a Comic Convention? SO many people dress up I doubt it's illegal.

Big Mike · Aug 9, 2007

Well, the issue may not be whether it's legal or not...but whether or not it's going to be enforced. People making costumes and dressing up, probably doesn't bother the owner of the copyright. You taking good quality photos and selling prints, probably would.

As for the people doing sketches...I'm not sure about that either. Again, I'm guessing that nobody would care, but when money starts changing hands, that's when it people start wanting to get their cut.

RMThompson · Aug 9, 2007

I assume you've never been to a comic convention, so I will tell you how it works.

A BUNCH of artists, mostly pencilers, do sketches all day long. You walk up to an artist and ask what he charges. He might say 20 bucks for a page, and then you tell him you want something... like "Spider-Man hanging upside down with a beer" and he will draw it.

Now sometimes these artists have worked on these books, but in a copyright standpoint, that doesnt matter. None of the artists who have worked on Spider-Man own him, they just are hired to pencil him.

ANYWAY

I called a lawyer. He thinks I would be fine as long as I don't get TOO greedy, otherwise I could be infringing on the Copyright Holder's ability to do the same thing I am. He also thinks that the most that would ever happen is a Cease and Desist letter, if someone ever found out.

He is going to have his partner, who specializes in trademarks, to call me tomorrow.