Unprofessional Commission Conduct 0

[Rick2you2]

14 hours ago, PhilipB2k17 said:

The elephant in the room, is that commission contracts might be unenforceable as a matter of public policy anyway, unless the artist is creating a truly original work, rather than using copyrighted material as the basis of the Commission. A Batman commission for money is - unless authorized by DC - illegal. But, if you are asking an artist to do an original commission, or of a character they own the rights to, then it's not a problem.

I don't agree with that. General copyright violations are violations of civil law, not criminal law. The voiding of a contract based on public policy has to be based on violations of fundamental public policy not just a legal violation. An example would be a contract to murder someone. The misuse of a copyright is more like a breach of contract, not robbery. The artist and buyer are using something without paying royalties. And even then, there are exceptions  permitting use of copyright material without permission like "fair use." 

With that said, DC could theoretically sue the artist and the buyer of a Batman commission for copyright infringement. And since it is a registered copyright, they might actually be liable for DC's legal fees as well as some token damages. But, there would be a good defense of waiver in light of the regular practices of artists to do commissions, along with the knowledge of DC, along with the astonishing bad will that would cause in the community which nets DC so much.

So, that's my 2 cents. 

Edited January 3, 2018 by Rick2you2

[alxjhnsn]

Re: Trademark vs. Copyright

If the image is a copy of a published scene, that's a copyright violation.

If the image uses a trademarked character or item, e.g., Superman or the S-Shield, that's a trademark violation.

If the image uses Superman in a new scene, that's a trademark violation, but not a copyright one.

If the image uses your character in a scene that is identical to a published one with your character replacing the original, there may or may not be a copyright issue depending on how much of the image is retained from the original. 

Yes, I'm pedantic.

[vodou]

1 minute ago, alxjhnsn said:

Re: Trademark vs. Copyright

If the image is a copy of a published scene, that's a copyright violation.

If the image uses a trademarked character or item, e.g., Superman or the S-Shield, that's a trademark violation.

If the image uses Superman in a new scene, that's a trademark violation, but not a copyright one.

If the image uses your character in a scene that is identical to a published one with your character replacing the original, there may or may not be a copyright issue depending on how much of the image is retained from the original. 

Yes, I'm pedantic.

No you are not.

With the law, the devil is in the details.

I still say that Wally Wood's "poster" was trademark exempt as parody.

I'm certain that Disney would never claim it was a copyright violation but if they had that would have been fun.

[alxjhnsn]

When you start talking parody and "fair use," things really get complicated.

I'm an Electrical Engineer and Software Developer by training, but the proper use of words has always been an interest. If you really want to stir me up, just say "That's just semantics." Given that semantics is what gives words meaning, saying some statement is "just semantics" is the same as saying "I don't care what words mean and "I don't want to clarify the statement because I don't really want you to understand." That way lies anarchy!

Edited January 3, 2018 by alxjhnsn

[ESeffinga]

OK, so based a bit on what is discussed above, but with a twist...

 

DC has a new Batman statue coming out. It's based on a painting by Mike Mignola, featuring Mike's Batman Gotham by Gaslight version of the character.

 

Here's the rub. Mike didn't do the painting for DC. In fact, it was a private commission for a collector. What's more, DC never contacted Mike to let him know they were using the piece to make the statue. So Mike did a commission for a collector, which he acknowledges is a DC character. And even though the Batman design used for the statue is his own variation, DC owns that too, since they published the Gotham by Gaslight book, and clearly Batman is all theirs. Mike doesn't do commissions like this for folks very often, if at all any more because he is very protective of his own characters. He doesn't mind fan art. Or even so much when other folks draw Hellboy as commissions and sell them to collectors. He is less happy when people do their own Hellboy art and sell it as shirts or mugs and stuff.

So, here we have a case of DC taking a private commission from artist to collector, and using that art to make a statue for sale to the public without even saying, hey man, we're making this a product for sale. I'm having a hard time ever remembering anything like it happening before. Sure, sometimes after the fact, a company will ask an artist if they can use a commission as a cover, or the artist even will offer the art to the company to be published as a cover after the fact. But at that point the company pays the artist publishing royalties. It's all on the up and up.

Mike's response on Facebook last week when he saw it seemed to be that he wasn't angling for anything, since he knew it was DC's character and all. He just seemed shocked they hadn't at least contacted him to let him know it was coming out. So sure, comic companies don't usually go after artists over trademark violations over commissions, it's one of those unspoken (so far) understandings that artists have with the comic companies. But I'm unaware of a time when a company has just outright used a commission without checking with the artist first.

I'd be really curious to hear DC's side of things.

 

 

Edited January 4, 2018 by ESeffinga

[PhilipB2k17]

38 minutes ago, ESeffinga said:

OK, so based a bit on what is discussed above, but with a twist...

 

DC has a new Batman statue coming out. It's based on a painting by Mike Mignola, featuring Mike's Batman Gotham by Gaslight version of the character.

 

Here's the rub. Mike didn't do the painting for DC. In fact, it was a private commission for a collector. What's more, DC never contacted Mike to let him know they were using the piece to make the statue. So Mike did a commission for a collector, which he acknowledges is a DC character. And even though the Batman design used for the statue is his own variation, DC owns that too, since they published the Gotham by Gaslight book, and clearly Batman is all theirs. Mike doesn't do commissions like this for folks very often, if at all any more because he is very protective of his own characters. He doesn't mind fan art. Or even so much when other folks draw Hellboy as commissions and sell them to collectors. He is less happy when people do their own Hellboy art and sell it as shirts or mugs and stuff.

So, here we have a case of DC taking a private commission from artist to collector, and using that art to make a statue for sale to the public without even saying, hey man, we're making this a product for sale. I'm having a hard time ever remembering anything like it happening before. Sure, sometimes after the fact, a company will ask an artist if they can use a commission as a cover, or the artist even will offer the art to the company to be published as a cover after the fact. But at that point the company pays the artist publishing royalties. It's all on the up and up.

Mike's response on Facebook last week when he saw it seemed to be that he wasn't angling for anything, since he knew it was DC's character and all. He just seemed shocked they hadn't at least contacted him to let him know it was coming out. So sure, comic companies don't usually go after artists over trademark violations over commissions, it's one of those unspoken (so far) understandings that artists have with the comic companies. But I'm unaware of a time when a company has just outright used a commission without checking with the artist first.

I'd be really curious to hear DC's side of things.

 

 

Everyone who collects commissions should watch this presentation on intellectual property law at San Diego’s Comicon a few years ago. 

Bottom line, yes...that Batman commission arguably violates DC’s copyright.

 

[ESeffinga]

Of course it does, and mike doesn't dispute that. The point is that they took a work they didn't pay for, to make a mass-produced item for sale, which is highly unusual for a large company. Normally they pay (very small) fees or at least make creators aware, and often comp them copies of the final product.

 

I've heard of cases of DC or Marvel printing t-shirts, or mugs, or statues or whatever, using art they did already pay for and own (i.e. art from a cover used to make statues, or shirts) and not alerting the artists. It makes for unhappy artists of course, but there's nothing legally wrong with that. They own the trademark and the copyright for the work. And in fact, the last part of that youtube video is pertinent. If Mike used their character, then legally they could say he forfeits any other rights he has to the work he created, potentially speaking.

 

In this instance, DC certainly owns the trademark to be sure, but not the copyright outright. Or it's hazy. As the creator of the work in question, that would normally be owned by Mike, unless paid for, or some other agreement made. Since what they did quite clearly copied a work he authored. Even if they own the character. Which is what make it hazy and unusual. But since they own the trademark, he seems like he's simply surprised they didn't say hey, we are planning to use this before making it, marketing it, etc.

Edited January 4, 2018 by ESeffinga

[ESeffinga]

Or to put it a different way, if this approach was adopted across the board, a company like DC could go on CAF, pick out their favorite Batman commissions from any artists they liked, and publish a book of them. They wouldn't have to pay any creators anything. Or find Batman shirts made by just about anybody on the internet, and make shirts, and mugs and keychains and whatever... and pay no one.

Take some fan art and put it on the cover of the next issue of Batman. Saves them the cost of paying a pro artist.

Etc and so on.

[Rick2you2]

1 hour ago, ESeffinga said:

Or to put it a different way, if this approach was adopted across the board, a company like DC could go on CAF, pick out their favorite Batman commissions from any artists they liked, and publish a book of them. They wouldn't have to pay any creators anything. Or find Batman shirts made by just about anybody on the internet, and make shirts, and mugs and keychains and whatever... and pay no one.

Take some fan art and put it on the cover of the next issue of Batman. Saves them the cost of paying a pro artist.

Etc and so on.

I think DC may get into trouble if it push this too far.

But first, let me get to the earlier point: even if there were copyright (or trademark) violations, there will still be a generally enforceable contract. It's just that people could owe damages for violating copyright and trademark rights. That's a different subject.

My own knowledge of intellectual property is limited, but I would suggest that the artist would win. Here is a website discussing defenses of acquiescence, laches and waiver in the context of trademark defenses to offending later marks. Presumably, some form of these defenses would also apply for copyright violations. http://privacyandip.blogspot.com/2011/10/common-questions-when-should-i-enforce.html

 

[alxjhnsn]

It's the pedantic guy again.

Mike's painting infringes on DC's trademark - not copyright.

Unless Mike sold the copyright to the image to the commissioner (unlikely), Mike holds the copyright to the image - not DC or the commissioner.

As to the legality of it all, it's not at all obvious that a statue based on a painting infringes on the painting copyright. It is obvious that the painting infringed on the trademark of Batman held by DC.

It is rude though to make the statue from painting without letting Mike know. It's unlikely that DC couldn't contact him or didn't know it was his work. That's just common courtesy - which isn't all that common, I guess.

Later.

[Rick2you2]

57 minutes ago, alxjhnsn said:

It's the pedantic guy again.

Mike's painting infringes on DC's trademark - not copyright.

Unless Mike sold the copyright to the image to the commissioner (unlikely), Mike holds the copyright to the image - not DC or the commissioner.

As to the legality of it all, it's not at all obvious that a statue based on a painting infringes on the painting copyright. It is obvious that the painting infringed on the trademark of Batman held by DC.

It is rude though to make the statue from painting without letting Mike know. It's unlikely that DC couldn't contact him or didn't know it was his work. That's just common courtesy - which isn't all that common, I guess.

Later.

You aren't being pedantic. I get it. 

Mike's argument would be that it is his unique creation of the design of a Batman image perched on a high chimney which is his intellectual property, and further, that DC acquiesced to public use of its Batman trademark for commission work as a long-standing practice.  Moreover, DC is attempting to "pass off" the Mignola design as authorized by the artist (a different sort of Lanham Act violation). But I would agree with you it isn't a clear case.

Anyway, I'd rather leave this sort of stuff to the office. 

[Rick2you2]

Just briefly, here is the Lanham Act's relevant language from Wikipedia. See how it compares:

15 U.S.C. § 1125 - False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

[vodou]

I like this odd case...I'd say that DC is sort of daring Mignola to make something of it. Knowing he won't, they're free to march forward in whatever manner they choose. None of the actions taken by commissioner, Mignola, or DC bothers me at all. I think it's fun. And I think it would be a ton of fun if DC did start using (let's say) "unauthorized" Batman (or other DC owned properties) images for whatever they felt like. For the artists that are smaller than the character/DC it would be a boon, and the reverse for the reverse (Mignola in this case). Fun fun fun.

If I was the commissioner though...I would be a little concerned of the possibility of a test case occurring where I'd have (by far) the weakest leg to stand on among all parties. And the smallest pockets too. But not really; one can still plead general "but everybody's doing it" stupidity and barring any obvious mal-intent usually be let off with a warning. And lose the commission original (of course).

[eewwnuk]

12 minutes ago, vodou said:

 

If I was the commissioner though...I would be a little concerned of the possibility of a test case occurring where I'd have (by far) the weakest leg to stand on among all parties. And the smallest pockets too. But not really; one can still plead general "but everybody's doing it" stupidity and barring any obvious mal-intent usually be let off with a warning. And lose the commission original (of course).

the commissioner just hit the commission jackpot.  having ones commission become a published piece, in this case published as a DC statue, is a huge win. 

[vodou]

1 hour ago, eewwnuk said:

the commissioner just hit the commission jackpot.  having ones commission become a published piece, in this case published as a DC statue, is a huge win. 

Normally I'd agree, but hard to say on this one. Most of the value was already baked in at pop - Mignola, Batman, color. Different story if it's Garcia-Lopez or another stable-like artist. That DC is published without any Mignola involvement...also not the best case scenario (for enhancing value to the top of range). Published yes, but not created with that intention under DC editorial oversight. Is this more valuable in the end, yes that's likely, but I'd say at a much smaller percentage than if it was a more generic artist, more generic character, created officially and intended for publication.

[F For Fake]

While DC may have every legal right to make the statue, it just seems odd that someone in the creative department wouldn't reach out to Mike, just to keep the relationship positive. They've made statues based on his work before, (which I'd assumed were with his full cooperation, but now I'm wondering if that was the case after all?) and they were very popular. The Black and White statues went through two editions and continue to be a big seller, from what I can tell. So if there is clearly a demand for DC tchotchkes based on Mike's work, it seems like it'd be in DC's interest to foster the relationship further, in the event that they wanted to produce something for which they DID need his permission down the line. Just an odd way of doing business, even if it's within their rights.