IP Talk With Lawyer Mom 2: Electric Boogaloo

I got a lot of great questions from people after the first Lawyer Mom post; so many that they've been broken into two posts. I'm working to get them up as fast as I can!

Can I use real people in my art? Or artistic interpretations of characters from movies?

Characters, says Lawyer Mom, are right out. The example in question was a theoretical commission from a customer of a portrait of them standing with Darth Vader. The only way this could fly would be if you contacted George Lucas (or LucasFilms, whichever entity owns the copyright) and asked for permission. Note well that at the bottom of every Droid phone ad on television, you see little text declaring that the word "Droid" is used with permission from LucasFilms, Ltd.!



(Pause at about 0:24 to see it.)


As for real people, that switches gears from IP law to privacy and slander/libel laws. The more famous the person is, the less "heinous" or powerful your message has to be, says Lawyer Mom. A commissioned portrait of Newt Gingrich is fine. But a commissioned painting of you standing with Newt Gingrich (when you've never shared space with him) could be used as a Republican Party endorsement, for example—suggesting that he knows you and recognizes you, when in reality he wouldn't know you from Adam (or Eve). (Though, you could paint a portrait of someone with a giant newt with a collar that said "Gingrich," or something else satirical/comic. This is why we can have political cartoons.)

Dead people are another matter entirely. Lawyer Mom will have to some digging on that point and get back to you. Until then, keep posting those Michael Jackson tributes.

Also note well that "significant artistic departures" from the original images (caricatures or chibi versions) constitute original work, much like satire or comic images do, so those are safe. A chibi portrait of you with Newt Gingrich is well and good.


I'm a $sports_team fan. Can I make stuff with their logo?

Nope! You can use their colors, though. Tagging them as such on Etsy is a grey area I'll get back to in another post, but using any official names or logos in the artwork or title is definitely right out. (Again, unless you ask for permission.)


Is my "$pop_culture_phenomenon"-inspired item a copyright violation?

Again, as long as you're not lifting any direct images without asking permission (or trying to bill your item as an "official" licensed piece of merchandise), you're fine.


But I've heard horror stories!

There are a number of reasons for this.

1. Sellers may have voluntarily taken their items off the market for fear of infringement. (Or other issues not related to IP problems.)

2. Sellers may have been using copyrighted images directly from the original medium.

3. Sellers may not have explicitly made it clear that their item is not officially licensed.

4. Sellers may have misunderstood the point of contention in the cease and desist letter they received.

etc.

I haven't heard any specific stories from Etsy sellers about being contacted by, say, Lucasfilms Ltd. or Summit Entertainment or anyone else with cease and desist letters, so until someone gives the specific details, both I and Lawyer Mom stand by this point that it's kosher.


I got a cease and desist letter! Help!

Each case is different, of course, but here are some questions to consider:

• What are they complaining about specifically? (They may not have an issue with your item; they may be writing because they have an issue with the language you're using in your copy. "Onesie," for example, is a trademark and marketing an item as such constitutes a trademark violation. Selling baby jumpers, however, does not.)
  
• Do they have a legitimate complaint?
  
• What are they asking you to do?

In an ideal world, people wouldn't send cease & desist letters unless they understood the law and had a legal backing to their argument. But we don't live in an ideal world, and so sometimes people make mistakes. If you know what you're doing is a fairly self-evident case of copyright infringement, do the right thing, eh? But if you think it's contestable, or if you can't break through the legalese, run the situation by your local copyright/patent/IP-informed attorney.

Sometimes, even huge corporations make mistakes: bear in mind that the National Pork Board sent ThinkGeek a C&D letter about a clearly satirical/parody product that doesn't even exist.

Can I repurpose trademarked logos with artistic intentions?

The short answer is "Yes, but...". Yes, but they have to be altered in such a way that they can no longer be taken as the original product (a bracelet made out of Hershey Bar wrappers, for example, is clearly not a candy bar) nor as an endorsement or an attempt at competition. Bonus points if the use is satirical or is somehow a commentary/artistic statement. This one is a fuzzy area that comes down to subjective interpretation a lot of the time.



I have some more questions to put up (I've also been sending private answers in Etsy convos while writing this), but it would be overwhelming so here's the first part.

Also be on the lookout for Lawyer Mom theme entries! I got a lot of questions about fabrics/patterns/sewing, so I've got a whole entry devoted to just those questions coming up as well.

Happy Fourth of July, everyone!