Rick2you2

Interesting read, and I do see your interpretation. You may well be right.

This isn’t legally correct. When someone gets a commission, he/she is only getting the piece of paper with the artist’s work on it, not the intellectual property that went with its creation. The copyright on the piece remains with the artist, who has the sole right to reproduce it. I remember having that discussion once with Howard Chaykin; he was a bit surprised I was aware of it. So, in context, if you get a commission from an artist, digitize it, and sell the digital version, your gross income minus provable expenses is all due and owing to the artist. The piece of paper, however, is yours to sell as you see fit.

A monoprint is a copy of a digital file, So, it would be included.

Second paragraph, lines 3-4.

I hope people take notice, but DC’s letter is not limited to NFT’s. It basically puts anyone selling monoprints of DC’s characters out of business.

Even if they sold for multiples of his regular art (whatever that is priced as)?

Then maybe it was confused. Oops.

We also lost sad. Oops. Make that confused.😔

If someone scans in a pen and ink page and sells it, that is going to be a copyright violation. The primary holder is the artist. But, the owner of the scanned in page is a secondary holder who owned the pen and ink page. So now, you have 2 violations. DC can do so because it owns the trademark in the character. That carries forward into the commission, thereby getting the artist and the buyer in trouble.

From DC's standpoint, yes. Primarily because of what a buyer can do with it.

"Turning a blind eye" is implied consent. DC won't say so, or give "express consent", but there are too many artists who deal regularly with DC and who also go to shows and do commissions for me to think there was no implied consent. Hell, look at Neal Adams. If any artist knows this area of "comic book law", it's probably him, and he does a lot of commission work. Don't forget that consent is usually revocable whenever the consenter wants to revoke (there are exceptions, however, like reliance on prior consent by the beneficiary, but now we are getting too much into legal terrain).

Better get the trademark holder's consent with it, assuming trademark. We now know what DC thinks about those rights.

Don't thank me so quickly. What was it all about?

Let's take this from the top. Slowly. 1. Is the issue about a copyright violation or a trademark violation. They are very different. In general, copying a page of art is a copyright violation. Copying a character is a trademark violation (assuming it is trademarked). 2. If Stegman produces art in a commission, and uses a recognizable character like Spider-Man, it is probably a trademark violation (without permission) but not a copyright violation. If someone takes the commissioned piece and reproduces it (without permission), it is a violation of Marvel's trademark and Stegman's copyright (unless Stegman assigned or sold his copyright to Marvel, for example, or the piece was done before 1976 when the law on "work for hire" was changed). 3. If Stegman uses a trademarked character, without permission, it is not "fair use". There is no such defense for trademark violations. If someone took Stegman's piece and copied it even for his own use, it is also not "fair use". That also applies, by the way, to copying music. Fair use is a narrow category of defenses under copyright law, like critical commentary, or for educational purposes. Don't try to invoke it if you don't really know what you are doing. 4. A lot of copyright and trademark rights are not enforced because there isn't enough value in their enforcement or they are not noticed by the owners. With copyright, you either can recover statutory damages if the piece is registered (which is easy), or common law damages--but only if you can show the violator cost you money by denying you some gross income, or likely did so. That's a tough standard for this stuff and not a cheap one to fight (although, you might recover counsel fees back). 5. Trademarks can be lost if they are not enforced. Ever hear of cellophane? It used to be a product name until the owner didn't try to enforce its rights to the name. But, there is no need to do so if the user of the trademarked item has consent from the owner to use it, either expressly or impliedly. Since there seems to be a general understanding that pen and ink commissons may be done with trademarked characters, implied consent would be the theory to use. 6. The letter from DC changes things. There is no implied consent for NFT or other digital art. The letter makes that very clear. So while there may still be consent for pen and ink commissions, it does not exist, if it every did, for digital work. Period. I have to make a few clarifications here. First, don’t forget that any right can be sold or transferred by contract. So, for example, DC may still own the right to reproduce any art it publishes, and have an assigned right to sue for copyright infringement. Furthermore, even a commissioned piece can be a violation of copyright law in some cases. For example, if someone copies a layout for a character in which the rights are owned by DC, they can be sued. So, anyone buying a recreation ought to make sure it states something indicating it is not an original and done “in honor of” or something along those lines, which distinguishes it. And there is always a generic contract right of ownership, which varies by contract. For example, DC may have language in its contracts with freelancers forbidding reproduction of any of its characters unless express permission is given. I don’t know what is in DC’s contracts, but given the language of the letter, that one wouldn’t surprise me here. hope you are all now better understanding why this is not an easy subject.

Your reply vanished.

I am a lawyer, but, I prefer not to play one on the internet. Not only is that like bringing "coals to Newcastle" for me but I don't want what I might write to be considered as "legal advice". Intellectual Property (IP) is a tough field. There are lots of violations on a regular basis, many of which are ignored because there is no viable recovery, while others are not even recognized as violations unless someone hits the jackpot in court. And still others result in settlements because no one really knows the answer, and the risk of a major loss is really high. Here, you are dealing with an almost complete unknown, yet now an NTF sells for $60 million? How many companies do you know who would consider that chump change? Of course commissions have value. They just aren't perfectly reproduceable if in pencil and ink. That is a big difference. Notice how the market devalues monoprints as compared to the old fashioned method? Still the same image, but still perceived differently. So yes, they are very different, and yes, the stakes are potentially much higher.

Let me add that to some extent, I think it is simply fear on DC's part. No one knows the future (except the Phantom Stranger), so they are making a conservative business decision. It may very well be that the whole market collapses and there will be nothing to worry about, but no one will blame the AT&T executive who authorized the letter for being cautious about it. I am curious, however, whether the people selling monoprints realize that the letter effects them, too.

Allowing an artist to do a simple sketch or commission of a character has non-monetary value to comics companies. By raising interest and awareness in characters, it increases sales in comics, and possibly, movies and TV. It also allows artists to supplement their income instead of publishers paying more for the art. Don’t forget that artists are allowed to keep their finished work after it is published. That wouldn’t be of much value if the company’s secondary copyright weren’t given away with it (or limited trademark rights with it, if any). No one could buy it. But, digital art is fundamentally different. The art is a one-off that can be perfectly duplicated by the owner for a potentially sizable profit. That’s could be a serious pot of money. Perhaps an analogy would be the publisher who decides to put a copy of Amazing Fantasy #15 in a book and sell it. Furthermore, if the book involves a trademarked item, like Spider-man, the failure of the owner to protect it can result in the loss of trademark protection, like the word “zipper” which was originally trademarked. The letter also raises an interesting question: is this the death of “monoprints”?

I just left a post in moderation review request. If you can think of another spot to ask about it, it can’t hurt.

Think of all the money you’ll save on unwanted pregnancies.

I suspect what you didn’t find suitable is precisely what I found suitable. My initial memories of GL were the Gil Kane versions, along with Sekowsky in JLA and Adams. Not a hint of light-heartedness (or much warmth) in the bunch.

I know. I’ve used him. Nice guy, too.

Ethan, because of the subject matter. For something like E-man, it would have to be Staton. The lightness of his work is well suited to the style of the story.

Not fair use, sorry. The fact that you are taking a theoretically possible way for the copyright holder to make money is usually a factor used to indicate it is not fair use. Fair use only can apply if it falls within a recognized category under the copyright law, like parody or opinion.

Looks like a Chinese delicacy.