Sunday Mailbag: Parody and Copyright and Prints?

These are a couple of follow up questions I’ve gotten via Twitter or email on the subject of selling prints of copyrighted characters:

You mention that making limited edition prints is allowed. I’ve never heard that before. Do you have any source for that?

I would not say it’s “allowed”. I’d say it is better defensible under a First Amendment defense because “fine art” is better recognized as a traditional vehicle for free speech. That advice was imparted to me by lawyers I consulted in a Chicago based firm specializing in Right of Publicity and Copyright issues when researching an article I was writing. They cited a related trademark case: Mutual of Omaha Insurance Co. v. Novak, 836 F.2d 397 (8th Cir. 1987). In that case the defendant Novak used the Mutual of Omaha logo as “Mutant of Omaha” with the tagline “Nuclear Holocaust Insurance” and a severed head version of their “Indian head” logo to decry the use of nuclear power. Novak lost the case in part because, while they were clearly voicing political opinions on nuclear power and this was obviously a parody, they produced this parody on T-shirts, mugs and ball caps. The courts cited these commercial and mass-produced items as commercial merchandise and not recognized vehicles of free speech, rejecting a first amendment defense. They really lost the case on other grounds, but that was part of it. In a similar case, L.L. Bean Inc. v. Drake Publishers Inc., 811 F.2d 26 (1st Cir.), appeal dismissed, 107 S.Ct. 3254 (1987) the defendant won that one (in part) because their parody using a variation of the L.L. Bean logo in the article “L.L. Beam’s Back-to-School-Sex-Catalog” in High Times was published in a magazine, which is a well documented form of free speech, as are books, fine art and, by inference (see: Andy Warhol) limited art prints. Whether you sell those things, as magazines and books and fine art clearly are, is immaterial. In ETW Corp. v. Jireh Publishing, Inc. 332 F.3d 915 (2003), Tiger Woods sued artist Rick Rush, who created a painting sold as a limited edition print and a large edition lithograph, that featured Woods in the center in several poses. The painting, which celebrated Woods’ 1997 victory in the U.S. Open, also depicted several past winners of the tournament superimposed over the leader board in the background, a caddie and a golf scoreboard. Woods was clearly the dominant focus. Woods argued this was nothing but “sports merchandise” and not worthy of First Amendment protection. The court disagreed, in part citing that limited edition prints and lithographs are recognized vehicles of free speech as “fine art”. He really won the case because they determined that the images depicted went past being about Woods and were depicting the artist’s own ideas and expression, but the fact these weren’t being sold on T-shirts and mugs helped Rush’s case. That one is being appealed right now, BTW.

However, there are other precedents that, even in dissent, allow that free speech should be independent of unusual venues of expressions. In Comedy III Productions v. Gary Saderup, Inc.,The California Supreme Court upheld an award against portrait artist Saderup in favor of the estates of the Three Stooges over t-shirts and prints bearing images of the Stooges by Saderup. It was originally argued that art on a “t-shirt” was not a recognized vehicle of free speech and therefore not defensible by the first amendment. While the CSC did still uphold the award, they rejected this argument citing: “First Amendment doctrine does not disfavor nontraditional media of expression.” That would seem to imply it makes no difference as to the way the art is presented.

That lawyer I interviewed told me selling T-shirts or a mass produced poster, even if you call it a “print”, is not as defensible via the First Amendment as a piece of original art or, at the very least, a signed and numbered limited edition of a piece of original art. Whether that advice holds up in court is another matter.

You mention that you don’t use copyrighted images in your prints. First, isn’t the Batman logo copyrighted? Second, how do you deal with the issue of actors having the rights for their likenesses? I understand it’s representational of your work, and I know I could make a sign showing that I drew a caricature of Jay Leno, and that much of your caricature book is fair use, but selling a print of multiple actors seems like there would be issues with it.

I do use copyrighted images in my prints, I never denied that. James Bond, Doctor Who and Batman are all copyrighted characters. The point is I am making fun of them, saying something about an entire series of entertainment and of the genre to which they belong. I believe that this is fair use under the umbrella of “parody”.

First, the trademarks i.e. the Batman logo you mentioned: I did not draw the Batman logo in my “Bat’s in the Belfry” print. That is a trademark and much tougher to defend using. I also did not use any copyrighted things like the sonic screwdriver or the Tardis in my “The Doctor is In” print (although the costumes are probably copyrighted), nor do I use “Batman”, “Doctor Who” or “James Bond or 007” in reference to these prints. I do this on purpose. Those kinds of elements are much harder to defend depicting, especially trademarks like logos or names.

Regarding the actors and their individual rights for their likenesses, that is probably the least of the gray areas here. What you are referring to is the Right of Publicity, which is a famous person’s right to protect the earning power of their likeness. They do that by demonstrating someone’s use of their likeness is damaging them by either selling something because of their celebrity and not the skill of the seller (which damages their ability to sell a similar item) or by insinuating the endorsement of a secondary product (which damages their ability to sell their own endorsements) and other considerations. Parody aside, it would be hard for any one of these actors to bring a RoP suit against me because they would have to prove that their likeness is what is selling these prints, and they are one of many different caricatures in each piece. That’s why artists like Sebastian Kruger can sell books full of caricatures of different celebrities, as no one can claim they are the reason the books sells. It becomes about the artist’s art, expression, and ideas rather than the one individual. Were I to sell individual prints of each of the different “Sherlocks”, for example, I would be hard pressed to argue against a RoP claim.

Arguing about something being a parody of a fictional character via bigger cheek bones & eyebrows is flimsy. A legit parody of say Batman would be something like a similar spoof called Macman or a Robot Chicken sketch. What exactly is being spoofed/mocked in your prints?

To be fair this series of prints is a little more than just caricatures of the different actors. The intent of the series is to examine, exaggerate and poke some fun at the differences in the portrayal of a single fictional character by many different actors. In my “secret agent man” print for example, I tried to portray Connery as over-the-top suave, Lazenby as the oddball, Moore as a campy goof, Dalton as far-too-serious, Brosnan as just a pretty face, and Craig as the only one that ever looked like they’d really been in a fight. There is some commentary in there, although I’m not hitting you over the head with it.

If anyone wants to argue that I am not really doing a parody here, and that caricatures of the actors alone do not constitute any real expression of opinion, then that’s a valid argument to make. I disagree. One day that may be up to a court to decide. The reality of all of this is that anyone doing an image of a copyrighted character they either do not own the copyrights to, or do not have permission from the copyright owner to do, is open to a copyright infringement lawsuit regardless of if they think they are in the right or not. Lawsuits can be filed whether they have merit or not, and only until they go to court will certain defenses arguing fair use or the First Amendment be decided. This kind of thing will remain common at comic cons until copyright owners start playing hardball and taking people to court and the courts render decisions that set precedent.

Personally, I feel I have good defenses in that the work I sell as prints can be argued to sell based on my art as much as the subject matter, that it is enough of a parody in that I make enough fun of the subjects to be sufficiently a First Amendment issue, and that the collection of many different caricatures makes a right of publicity case unsound. None of that means a damn unless I present it to a court and they tell me it does, or does not. That day may or may not ever come.

Thanks to assorted folks for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!