by Heather Green
Whether you are shopping on Etsy, browsing your favorite FP forum, or walking the streets of Chinatown, copyright infringements are everywhere. Most of us have the attitude that since everyone is doing it, its really not that big of a deal. The reality is that copyright infringement is illegal, and ignorance is not a defense in the court of law. You may never get caught, but it’s best to know some facts and avoid any legal nightmare that might arise from using a licensed character without approval or licensing agreements.
Licensed characters are protected by Copyrights. When I applied for a Copyright for an Arty Cake I was astounded by the cost of protecting my product and creation. Which is why companies are cracking down on their licenses. At the end of the day, we all love to paint Mickey, Spiderman, and Batman, but the line between selling their exact copyrighted design versus painting it on the skin is where the grey area comes into question.
I am not the paint police, I will not report anyone for selling licensed characters and my advice is solely that, advice. There are LOTS of great blogs on this topic and I will link a few at the bottom of this blog. So I truly suggest doing your research because this is one of those instances where ignorance isn’t really bliss. If you want 100% legitimate professional advice please seek a licensed attorney. The following information is based on my experience, research and past hardships concerning licensed characters.
I have a great colleague that owns a party business. A couple years back when Licensed character parties were all the rage, they referred a client to a company that would send a Disney princess to do a show. Well it was their unlucky day because it was an attorney setting them up for a lawsuit. Eventually they settled out of court for $50,000. When she first told me about the lawsuit , I never imagined that Disney would have the time or energy to go after a little mom and pop company. But I was wrong. It’s usually not Disney, or Marvel, etc its usually an attorney that is hungry for work and fame that has time and energy to seek out people making money off of using licensed characters. I read a great blog, by someone that broke down the issues Etsy store owners were dealing with as it relates to Copyright infringement. She mentions that, typically competition turns you in and that’s how you get shut down. So take a minute and read over her blog, it has a lot of good info as it relates to using the likeness and not even the exact image.
Some Myths about Copyrights
Unless a character states Copyrighted then it is free to use
Once a creation is posted online, it will always have “ownership”. You do not need to place the copyright symbol in order for it to have protection.
As long as I give the artist credit or company credit I can use their work (character, designs etc)
Credit is always appreciated (I say this as an artist) but unless you receive explicit permission (best if it’s written) then you do not have permission and are subject to copyright infringement
As long as I change the design by 20% I am exempt from Infringement
This is an old myth.. how would you determine mathematically that there is a 20% difference? Even if you change the color of Mickey’s head, it is still clearly visible that it is Mickey.
So how does all this relate to face painting?
When we paint a child’s face as Spiderman can we be sued for Copyright?
By text book definition yes, if we are using the likeness, and calling a design “Spiderman”, “Batman” and profiting from it without permission then we are possibly at fault. I have raised this question with my family of attorneys and they all have different answers. In order to attain a legal license for a character there are A LOT of hoops and money that needs to be spent, so it’s not quite feasible. The verdict is still up in the air, and I highly doubt anyone will be banning Spiderman and and Batman from our display boards any time soon. But I promise to post a much more in depth answer once I get to the bottom of it.
Can I use copyrighted and licensed character stencils ?
If you have searched the internet and found Batman look alike , Dallas Cowboys replicas, or similar named stencils like HI 5 Kitty instead of Hello Kitty, they are all being sold illegally and are subject to prosecution if the company chooses too. Typically they will change the name to avoid simple google searches by attorneys, but that does not exclude them from infringement. Whether you are selling or using them to make a profit you are breaking the law. Whether it’s a big deal or not, is a personal choice. When I first started selling glitter tattoo stencils I sold a bunch of copyrighted designs thinking that there was no harm or foul because I wasn’t the manufacturer. A month later the manufacturer received a cease and desist letter and we took them all down before we faced legal action.
At the end of the day, you want to protect your work just as much as a company wants to protect theirs. If you painted a piece of artwork or wrote a song and someone took it and started to profit from it you would be upset. So, it’s always good to put yourself in their shoes and consider using copyrighted stencils and tangible copyrighted products.
I do not use and copyrighted licensed character stencils unless I am supplied with them by the client. I airbrush at the Miami Heat games and they ordered the stencils for me. Then I am free from the stress of someone turning me in or me losing the account because compliance gets involved and upset.
So my best advice to artists is to use copyrighted designs with discretion. Do not advertise them boldly on your front page, do not cut or publicly sell clearly visible copyrighted stencils or paraphernalia. Unless you are looking for trouble to come your way. I spoke to one lawyer and she told me a story about a young Disney lawyer that went after a mom and pop shop for making Mickey Invitations and they made the news. Disney was so embarrassed by the lawsuit that the lawyer was fired because they felt he created bad press, but what it did was send a message that no one is exempt from a lawsuit.
I hope this blog shined a little light on the do’s and don’ts of copyright protection and how to avoid unnecessary legal troubles.
Here are a few Blog links that I found helpful