DrunkWooky

The difference is enforcement. By the letter of the law, every time an artist, regardless of how respected and prolific they may be, sells a drawing of a copyrighted character owned by Marvel, DC, hell even Valiant, and sells it without authorization, it is copyright infringement. The difference is enforcement. Because convention culture, getting sketches and autographs on your comics, and things of that nature are part of the comic industry's early DNA and are still a massive part of the hobby today, comic book publishers refrain from enforcing these rules. However, if they wanted to make an example of somebody, they could go out there, walk the convention floor and do so. They won't however, because it's bad PR, punishing your fans. If you're asking where the line is: there is a line to be crossed and that is the copyright holder's tolerance of behavior. This C2E2 variant is an egregious flouting of Marvel's copyright. It also sets a terrible precedent where shops can begin slapping nude bodies over Spider-Gwen, putting $ in Superman's mouth, and whatever other offensive nonsense they want. I would bet money those are the conversations being had by Marvel's attorneys this week. To the argument that "the flag and U.S.A. graphics aren't owned by Marvel", that's true. However, they are being presented together with characters owned by Marvel and Marvel's trademarks. If you ever buy a variant and it has a "trade dress" and "virgin" option, "trade dress" is literally a term lifted straight out of the trademark statute and is a protected sub-category of trademark. So, yes Marvel does have the right to enforce how their trademarks are presented through acetate on the shelf. To accept that anybody can put public domain (copyright not owned by a private party) on any trade dress they wish is to accept the position that I could take these 750 issues and put piles of dog Sh!? on the flag, Marvel's logo, Miles' head, and Clayton Crain's name. No, Marvel would not accept that. Nor should they have to. To the argument that "Black Flag paid for these books so they own them", correct they do own the physical book. However, those ownership rights are separate and distinct from copyrights which they do not own. Owning a CD physically does not give you the right to rip the music off the CD and send it to your friends online. There is a fundamental misunderstanding on these boards about how the copyright, trademark, and contract law framework is operating and I think everybody should refrain from trying to opine on these things. I'm going to from this point out certainly. I'm an attorney and I would refrain from providing any sort of formal legal opinion to somebody without seeing the contract first and getting a lot more information. There are myriad things in the world happening everyday which are technical violations of copyright law. They are usually too small to enforce. Should these violations still exist in the law in today's world? Are they good policy? Those are separate questions. For the time-being this is the law of the land in effect on the day Black Flag pushed this tripe onto the market. While there is a criminal portion of the copyright statute and the trademark statute, they are seldom used by law enforcement in the type of context we're in here. Enforcement is, for the most part, left up to the copyright and trademark holder. For Trademark, those who do not enforce the quality control of their trademark are risking being deemed to have abandoned their mark. So, there is significant incentive to enforce. This is why so many cease and desist letters are sent, because it's the cheapest form of enforcement you can perform. Because enforcement is left to private parties, it is inconsistent, but enforcement that goes to court is usually a big deal and brought to make an example and stamp out further behavior of the sort. To the arguments of fair use, parody, etc., etc., I've said it before and I'll say it again, those are affirmative defenses and questions of fact for a jury. That means, you need to go through every stage of litigation and finally get to trial before those defenses are considered and decided upon. That is more expensive than Black Flag can afford. They would settle with Marvel long before then and no settlement with Marvel would come without a covenant by Black Flag to discontinue this behavior. There are also contract rights at play here under Black Flag and Marvel's exclusive agreement. While we do not know the specific contents of that contract, we can guess that Marvel did not waive their rights to copyright or trademark enforcement and so all three things are in play right now. Claims for breach of contract, copyright infringement, and trademark violation are all on the table right now.

Here ya go!

What if I told you it could be BOTH a breach of the license AND copyright infringement?

Anthony at CHU’s “unboxing” if you will: CHU

Well that’s just a response that downright makes my day!

Young lawyer here (7 years of practice). I kept trying to tell people above that there is no definite way to say here that Black Flag is in the clear for copyright infringement, trademark infringement, and probably breach of contract under the license agreement. I kept saying above that, at first glance, it sure looks a whole hell of a lot of one, two, or all three of those things. Then the deluge of unqualified certainties and overconfident absolutes drowned me out dozens of pages ago.

The problem is Marvel did not approve the acetate: https://bleedingcool.com/comics/marvel-did-not-approve-ultimate-fallout-4-acetate-covers-at-c2e2/

It's called a contract and every retailer with an exclusive signs it with Marvel. It's a violation of Marvel's approval rights. Beyond that, in spite of what people are saying recently in this thread, it is by no means clear that "no infringement" happened under copyright and trademark law. To my eye this looks like a prohibited derivative work under the Copyright act. 17 U.S.C. § 101 - U.S. Code : "A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.  A work consisting of editorial revisions.... is a “derivative work”." The rights to derivative works are held by Marvel. It's also likely a trademark infringement because its likely to cause confusion in the market. It already has. There were certainly people buying these who thought it was blessed by Marvel.

How do you know this?

I think a lot of ebay's enforcement requires user reporting. Get to reporting!

Good guy, Chip Gettler donating all his ebay auction to Mission 22, a military charity: https://youtu.be/olhVNXcK5jw But, Ebay stated that the item violated the Counterfeit Item Policy. "They received a report regarding its authenticity." https://www.youtube.com/watch?v=k4G7L_Gquv4

17 U.S.C. § 101 - U.S. Code : "A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.  A work consisting of editorial revisions.... is a “derivative work”." The rights to derivative works are held by Marvel. Unauthorized Derivative works are prohibited under the copyright act. I bet they wish they called it something different:

Right, that's the basic form of the trademark infringement test. The copyright test is much simpler. Did the prohibited act occur? The contract issue is even easier than that: does their exclusive contract prohibit this without Marvel's consent?

'No Marvel Comics copyright infringement' It's too bad that isn't their question to determine. It's a jury question and they'll spend a lot of money vs. Marvel proving that. It looks like an unauthorized derivative work to me that is most definitely prohibited by the copyright act.

Ben C of CBSI referenced an email to retailers warning them not to do this during the fallout (pun intended). I'd be morbidly curious to see the content of that email.

https://bleedingcool.com/comics/marvel-did-not-approve-ultimate-fallout-4-acetate-covers-at-c2e2/ "Today, Bleeding Cool has been able to confirm that Marvel Comics did not approve Black Flag's addition of an acetate cover as a further variant, and it is also not something they would permit." So, it's breach of contract at the very least. It's potentially copyright infringement. It's potential trademark violation.

So, these printed blank covers being sold on Ebay are all blue label if they are submitted right? They were created by Cho. They are produced by a retailer and attached to the issue.

Nah, check again. That's photoshop.

Yeah, that doesn't fly. Stray Dogs had a different bar code. This had the same bar code from last year.