Am I gonna get sued?

[Tatterdamillion]

So I am in a three-piece band (two guys and one gal). We play pop alterno music. I recently made some homemade T -shirt using one of my favorite covers of the silver age, So, is this OK to make en masse. Either way what do you think?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Sal]

probably not, as long as you don't sell the shirts. it's possible you might have to put a copyright blurb on the bottom of the image or something, but that would be a stretch

[FatComicMafia]

Well, you plan on selling them I think....so that is a good question....

 

 

I know if you critique the image while using it you might be able to get away with it.

 

Hard to say.

 

You're Band might get some good PR if DC came after you.

 

The fairly known Punk band Jawbreaker sold concert T-shirts with the Morton salt girl on it for years until the company came out after them. I think for your local shows, until you start filling up arenas and selling them, you're probably OK.

 

As for suing, Sure, I guess these lawyers can sue you for just about anything.

[comix4fun]

So I am in a three-piece band (two guys and one gal). We play pop alterno music. I recently made some homemade T -shirt using one of my favorite covers of the silver age, So, is this OK to make en masse. Either way what do you think?

 

 

 

It's a little more complicated than this but to avoid trademark/copyright infringment you need to make the image approx 34% different than the original.

 

If you make enough changes from the original....it becomes different enough to be considered it's own image.

 

Of course any trademarked phrases or copyrighted characters would have to be changed/eliminated.

 

Chris

[Aman619]

you woudnt get sued, but id DC sees it you will get a "cease and desist" letter warning you to stop using their trademarked property. After that, who knows, but they will have taken their legal step to protect their property and would then be in a position of strength to pursue the matter should you continue and they see fit to go after you. Chances are they wouldnt.

 

You could send them the image and ask for permission. Theyll probably let you provided you promise not to sell anything with DC property on it. So if you plan on becoming very successful or selling tee shirts etc you might as well pick a different and totally original design YOU can own now at the beginning.

[SolitaireOne]

... you will get a "cease and desist" letter warning you to stop using their trademarked property.

 

Yet wouldn't some publicity from a possible "cease and desist" action push the awareness/ focus on your band into the stratusphere and therefore perhaps be worth it?

[Aman619]

theres no publicity. Just a piece of paper in the mail, like a business letter.

[binarysunrise]

you woudnt get sued, but id DC sees it you will get a "cease and desist" letter warning you to stop using their trademarked property. After that, who knows, but they will have taken their legal step to protect their property and would then be in a position of strength to pursue the matter should you continue and they see fit to go after you. Chances are they wouldnt.

 

You could send them the image and ask for permission. Theyll probably let you provided you promise not to sell anything with DC property on it. So if you plan on becoming very successful or selling tee shirts etc you might as well pick a different and totally original design YOU can own now at the beginning.

 

I believe if you ask for permission, they will tell you no. Which might put you in more of a legal quandry than if you didn't ask. I asked once, and just got a form letter saying something to the effect of "not on your life"...

[Aman619]

probably. depends on the usage. of all the comic dealer ads with DC characters likenesses that we see , some of them must have asked for (and received) permission. But using Superman in a comic store ad (that is a customer of DC) or a dealers ad (more of a stretch but not harming DC in any way) is probably far less a "threat" to them than a band logo or such. Yeah, he should either just use it and hope for the best, or pick another image.

[batman_fan]

The only permission I have seen has been for business cards or advertisement that promoted places that sold the copyright owners merchandise.

[grandz-migration]

So I am in a three-piece band (two guys and one gal). We play pop alterno music. I recently made some homemade T -shirt using one of my favorite covers of the silver age, So, is this OK to make en masse. Either way what do you think?

 

 

 

It's a little more complicated than this but to avoid trademark/copyright infringment you need to make the image approx 34% different than the original.

 

If you make enough changes from the original....it becomes different enough to be considered it's own image.

 

Of course any trademarked phrases or copyrighted characters would have to be changed/eliminated.

 

Chris

 

This is correct information. If Warner Bros. wanted to be very strict they could bring legal action. You and the t-shirt company could be sued if they Warner Bros. wanted to pursue action because there is enough of the original cover reproduced.

 

As long as they don't get wind of this you're fine.

[innocuous]

Gee. I bet no one from DC reads these boards.

[valiantman]

This particular question is very interesting to me...

 

In this case, you have a book that is NOT a "typical representation" of the D.C. entity.

 

Minor changes, such as:

-removing the DC logo on the top left

-changing the word "Showcase" to "Featuring" (or something similar)

 

... would leave you with an image of scuba divers (not distinctive to D.C.)

and a tiki-monster thing that is not a "known D.C. entity" (such as Batman, Superman, etc.)

...the Approved by the Comics Code label doesn't belong to D.C. anyway,

and a t-shirt doesn't have any relevance to the Comics Code.

 

So... what would remain "D.C." about a graphic that doesn't have anything that's specifically "D.C."?

 

Additionally, a musical (band) utilization for a non-specific comic book cover image

is not an infringement on the intent/usage of the comic book cover image.

(Is D.C. going to launch a competing scuba diver tiki monster musical group?)

 

If it was Superman, you'd be out of luck.

If it was Batman, you wouldn't get away with it forever.

But this isn't anything that's "D.C." the way D.C. is known in the industry,

it's unlikely to be confused by anyone who is a reasonable observer,

and removing specifically D.C. things could be enough "alteration"

to qualify the image as significantly different from the original.

 

At that point, what would D.C.'s argument be?

[comix4fun]

At that point, what would D.C.'s argument be?

 

 

I agree that in this situation there little money moving around they may take the "why bother?" stance, but if they wanted to take a position on this

It would probably be something along the lines of:

 

"We are a multi-million dollar company with properties worth in the billions it would mean nothing to us to spend $100,000-$200,000 to drag you into court for the next year to fight the use of an image on a T-shirt that you were going to make little or no money on in the first place."

 

They would not be the first company to use their vast resources to pursue a claim that was potentially dubious simply because they could.

 

Chris

[Mr. Zipper]

Odds are, eventually we'll all be sued for something.

[the blob]

Please do not consider any of the following the giving of legal advice or rely on it in any way:

 

there is no "34% rule." How "different" something is is determined on a case-by-case basis. If you decided the recreate the scene by painting it yourself, you'd have a better shot at not being in violation.

 

and yes, they could sue you, assuming it is registered in the first place - particularly relevant to this pre-1976 material (unless the copyright on that particular image has lapsed because they did not renew their registration, which is relevant to pre-1976 images). Back in the early 1960s. they would have only received a 27 year copyright, and then they could renew for another 27 years. But I dimly recall that Congress has added 10-20+ years to that last 27 year term, I just can't remember right now. I assume, DC being a big entity, that they registered in the first place and renew things. That's a no brainer for Superman/Batman, but this one is, of course, a bit more osbcure. Then again, if they've reprinted it in the last 40+ years, it's likely on the radaar for renewal.

 

For example, my guess would be that many GA images produced by defunct publishers never got renewed and are in the public domain.

 

but they're more likely just going to ask you to cease and desist and sue if you keep on distributing the t-shirts. (TW used to be a client back in my private practice life and that's usually how they did things on this minor sort of stuff). Particularly because you haven't done anything offensive with the image.

 

Better yet, get yourself signed by Warner Records (they still exist, right?) and I'm sure they'll let you use the image!

[comix4fun]

Please do not consider any of the following the giving of legal advice or rely on it in any way:

 

there is no "34% rule." How "different" something is is determined on a case-by-case basis. If you decided the recreate the scene by painting it yourself, you'd have a better shot at not being in violation.

 

 

I agree....I was trying to use a number to denote that the image must be different enough to avoid confusion with the original. Using a number, such as 34%, was an illustration from some of the case I have worked on, to denote how some people identify it. In a visual medium, however, it will depend on the beholder.

 

If you change enough portions, sections, identifing markers so that there is no confusion that the piece is different and new then you are more in the clear. Creating your own image with the "feel" of nostalgia for the old piece is probably the best way to go.

 

And I also agree, the overall look and feel of the piece should be altered to avoid that confusion with the original. The cases of trade-dress infringment that the overall look of the title/logos could be an infringment on its own.

 

The fact that you are not in the same field or industry as DC helps. Not too many people are going to confuse a band with a silver age comic book, but that said avoiding confusion with your band and the DC comics company or their properties is what will put you in the clear.

 

C

[That Ron Dude]

I think your chances went way up when you posted it here.

 

I once needed similar advice and went to a lawyer who told me not to. I spoke to a full-time, professional, well-connected artist who flirted with the same questions every day. He said that there had never been a lawsuit of the kind I spoke of in Canada. He also said that one day someone would make a fortune off such an activity and a lawsuit would commence.

 

He also said that lawyers will give the most conservative advice.

 

Eventually I gave it up, feeling that if I was sued, even when being in the right, I would have to mortgage the house to hire a lawyer. I have no tolerance for that sort of risk.

 

I spoke to another fellow who broke copyright regularly to make a living. He got called on it twice, once with a time magazine painted cover where he picked up on a Karsh photo portrait of Albert Einstein. He said that he later received a letter from the Karsh people, though not a Karsh lawyer, asking for a very reasonable fee for use of the portrait. He did not explain the other occasion.

[grandz-migration]

Please do not consider any of the following the giving of legal advice or rely on it in any way:

 

there is no "34% rule." How "different" something is is determined on a case-by-case basis. If you decided the recreate the scene by painting it yourself, you'd have a better shot at not being in violation.

 

 

I agree....I was trying to use a number to denote that the image must be different enough to avoid confusion with the original. Using a number, such as 34%, was an illustration from some of the case I have worked on, to denote how some people identify it. In a visual medium, however, it will depend on the beholder.

 

If you change enough portions, sections, identifing markers so that there is no confusion that the piece is different and new then you are more in the clear. Creating your own image with the "feel" of nostalgia for the old piece is probably the best way to go.

 

And I also agree, the overall look and feel of the piece should be altered to avoid that confusion with the original. The cases of trade-dress infringment that the overall look of the title/logos could be an infringment on its own.

 

The fact that you are not in the same field or industry as DC helps. Not too many people are going to confuse a band with a silver age comic book, but that said avoiding confusion with your band and the DC comics company or their properties is what will put you in the clear.

 

C

 

True.

 

Also, I am giving advise not as legal counsel, but as a Art-Director who has dealt with Warner Bros. character property for giftware, and used Copyright/Trade mark attorneys for counsel. It is best to use counsel of a Copyright/trade mark attorney. Depending on location, fees for counsel could be between free to $300.00 for a hour of counsel.

 

I will tell you that if you want to use a title of a printed book, magazine, etc, that is not a series, you can do that. A title that is used in a series can, and probably is trade marked.

 

More....I can copyright a style of a character(s), the coloring, and the character itself if it is reproduced as in a series.

Again, I am not giving legal counsel, but sharing what I received from a copyright/trade mark attorney. You will find this out if you elect to counsel with a C/TM attorney.

 

You may want to get counsel: it is very interesting knowledge.

 

P.S. bring a note pad.

[SuperBird]

you'd get a cease / desist. Then you'd be sued if you did not desist.

 

(I'm in design and advertising, we deal with these issues alot.)