# Selling Trademark Characters design (do i need permission?) If it's my own drawing.



## Photographer

Selling Trademark Characters design (do i need permission?)

I was thinking about designing my own stuff from scartches but my own version of a certain trademark character for example from Marvel. Lets say spider man. Could I sell that as my own artwork or do I still need permission because its still a Marvel Comics trademark character?


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## kimura-mma

Photographer said:


> I was thinking about designing my own stuff from scartches but my own version of a certain trademark character for example from Marvel. Lets say spider man. Could I sell that as my own artwork or do I still need permission because its still a Marvel Comics trademark character?


To do it legally, you would need permission. That's the point of trademarks, copyrights, etc, it gives the owner exclusive right to profit off their intellectual property.


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## BroJames

I think the issue is not who did the drawing but who owns the trademarked or copyrighted character.


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## Photographer

Gotcha thanks a lot


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## Violent_J

I am 100% it is legal to do a knockoff.


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## kimura-mma

Violent_J said:


> I am 100% it is legal to do a knockoff.


What makes you think that?


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## Violent_J

It coincidentally looks similar.
Your not tracing it.
You drew it yourself.

All the t.v shows that make fun of characters do it too. 
I could draw a rabbit that just so happens to be *similar* to trix rabbit.


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## kimura-mma

Violent_J said:


> It coincidentally looks similar.
> Your not tracing it.
> You drew it yourself.


When artwork looks coincidentally similar to existing intellectual property, that is the exact basis for infringement lawsuits. So to say it's 100% legal is 100% wrong. There are definitely risks to creating similar artwork, whether it is intentional or not.



Violent_J said:


> I could draw a rabbit that just so happens to be *similar* to trix rabbit.


If you did this and sold it, you would definitely be at risk to be sued for infringement. It is possible to use the parody or fair use defense, but it would cost a lot in attorneys fees just to defend yourself. And it would be up to the judge to decide if your parody defense holds up. Maybe it does, maybe it doesn't. It's a risky proposition.

This is a public forum, and you're free to give your opinion, but I don't think it's right to claim something is 100% legal when it's actually something that can get someone sued by a major corporation.


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## jiarby

Why not just draw your own unique superhero character?

Oh yeah... 
No one ever heard of you, or your superhero... so no sales. 

It takes alot more than drawing a cool character on a piece of paper. You have to market, promote, advertise, distribute, print, etc. Marvel has been spending millions for more than 50 years to build their stable of characters into a marketing/entertainment powerhouse. That is why people want to buy a spiderman character image and recognize it immediately. 

You drawing your own version of that character is essentially stealing the work Marvel did to advertise and promote that character so that it would be marketable and recognizable to everyone. 

You didn't spend millions and decades building your characters brand, but you still want to be able to profit from their intellectual property??

That is the definition of infringement.


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## moonlit

I agree with kimura-mma. In my own research on copyright infringement, if you make something that looks close enough to a copyrighted piece so that people "know" what it's supposed to be, you risk a lawsuit. Some companies don't care, some simply order a cease and desist, others defend their brand very aggressively and can come after your finances and equipment you used to make the work. 

Also, best to get legal advice from a lawyer, not a bunch of T-shirt people


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## mad4tshirts

Tim and Glenn have it right! This directly pertains to intellectual property rights, specifically, copyright law... and nobody protects their copyright more than Marvel and Disney.

There are gray-area exceptions (which sometimes you have to fight for in a court of law depending on what a "reasonable" person would deem) called fair use... you can read about it all over the net, but here is an easy government resource.


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## Violent_J

So because of "trix" I can never sell a picture of a walking rabbit? 
What kind of sense is that? 

The design wasn't even genius. Just contour.


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## kimura-mma

It is legal to sell your own original artwork. It is illegal to sell artwork that infringes on existing intellectual property, whether it's intentional or coincidental.

It is a responsibility of a graphic artist to make sure they are not violating IP laws.

You may not think it makes sense, but I'm sure you would protect your own designs or characters if someone else tried to steal it for profit.


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## GLC

Violent_J said:


> So because of "trix" I can never sell a picture of a walking rabbit?
> What kind of sense is that?
> 
> The design wasn't even genius. Just contour.


Of course you can - Your image just has to display a greater degree of your creative input than anyone else's. People create their own fresh art everyday and are on there way to success. So be free to draw what you like - just don't go out with the intention to rip off someone else's success, effort,and character.. 

Eze


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## BroJames

There are definitely gray areas and sometimes what constitute an original artwork from a copied one is blurry. I think the artist, printer and/or seller should exercise discretion and good judgement. It is simply no use to argue that this and that is not an infringement of any law etc. But if the owner of a copyrighted character or trademark felt that your artwork is strikingly similar to theirs and sues you, I think it would be a costly way to find out on which side of the gray area your artwork falls into.

BTW, in the US, do owners of copyrighted materials just sue or do they give you a chance to pull the stuff out of the market?


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## jiarby

> So because of "trix" I can never sell a picture of a walking rabbit?


As long as no one would confuse it with the TRIX rabbit you can! Bugs Bunny is also a walking rabbit and no one that sees Bugs gets confused and thinks he is representing the General Mills Corporation.

BUT.. If you draw him with big feet, excessivly long floppy ears, a roundy face and he walks like Jar Jar Binks then you may have trouble.


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## kimura-mma

BroJames said:


> in the US, do owners of copyrighted materials just sue or do they give you a chance to pull the stuff out of the market?


It's up to the IP owner. Some send a cease & desist letter first, some file a lawsuit immediately. Some allow the infringer to sell off the remaining inventory, some force them to get all product off the shelves and order them destroyed.


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## mad4tshirts

Angel - Usually they get in contact with you with a formal "Notice of Copyright Infringement and Demand to Cease and Desist" letter.... not exactly what you want to find in your physical or digital mail box!


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## Artsplace-CBR

I thought that would be obvious, it's the trademark of someone else.


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## SavannahMarket

I AM a lawyer, and though I don't specialize in this area of law, I can tell you that there is not an easy, black and white answer when it comes to infringement of trademarks, copyrights, and patents. Some things are obvious infringements, such as direct print of the Batman logo on T-Shirts, but when it comes to "original artwork" and your First Amendment right to free expression, the line gets fuzzy.

Consider Andy Warhol and his Cambell's Soup artwork. Though he originally got a nice letter from Cambell's to say they admired his artwork, they later sued. Then, they dropped the suit because they were actually benefiting from Warhal's artwork. But, this is unusual.

There is a good ebook written by a lawyer for artists concerned about this issue which is worth reading. (I don't know the lawyer and have no personal stake in recommending this book.) The link is here.


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## kimura-mma

SavannahMarket said:


> Some things are obvious infringements, such as direct print of the Batman logo on T-Shirts, but when it comes to "original artwork" and your First Amendment right to free expression, the line gets fuzzy.


Doesn't _The Lanham Act_ clear up much of the fuzziness?



SavannahMarket said:


> Consider Andy Warhol and his Cambell's Soup artwork. Though he originally got a nice letter from Cambell's to say they admired his artwork, they later sued. Then, they dropped the suit because they were actually benefiting from Warhal's artwork. But, this is unusual.


Original artwork can be protected. But when it's printed on a t-shirt, it is merchandise. That is the difference.


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## SavannahMarket

kimura-mma said:


> Doesn't _The Lanham Act_ clear up much of the fuzziness?
> 
> 
> Original artwork can be protected. But when it's printed on a t-shirt, it is merchandise. That is the difference.


No, the Lanham Act of 1946, as amended (1984) is "just" a statute. Statutes are nearly always "defined" by case law where the interpretation of a statute is often the question before the court and the basis for the original conflict. 

I'm over-simplifying, but a good example is the case of Univ. of Alabama vs. Daniel Moore. Though I believe the case may still be running through the appeals courts, *the current ruling allows the artist, Daniel Moore, to sell reproductions of his own artwork on "mundane" items like coffee mugs and calendars. His original artwork depicts trademarked uniforms worn by the Univ. of Alabama football team*. 

So, I respectfully disagree with your comment that "original artwork can be protected But when it's printed on a t-shirt, it it merchandise. That is the difference." It's just simply not that simple.


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## kimura-mma

Is a t-shirt considered a "mundane" item?

I completely agree that these situations are simply not that simple. But it seems that the use of existing IP on t-shirts has often times been viewed as infringement over free expression (fair use or parody notwithstanding).


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## SavannahMarket

kimura-mma said:


> Is a t-shirt considered a "mundane" item?


Yes, under the current interpretation of the law. 

The REAL question is whether something is considered "original artwork" -- not what items that artwork can be transferred to.


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