Can referencing famous comics in your own comic infringe copyright?
February 7, 2017 1:35 PM   Subscribe

I’m collaborating on a comic series that makes reference to copyrighted comic book characters in a couple of specific ways. I want to make sure this doesn’t expose us to copyright infringement or other legal snafus.

1. Title: The overall title of our series has nothing to do with any copyrighted properties, BUT issue 1 is called “Issue 1: Death of Superman” (as a pivotal setpiece in the story centers around the Death Of Superman comic release day).

2. Character: In our comic, one character dresses up as General Zod from the Superman universe to visit the aforementioned comic store. He bases the look on the film version of the 70s-80s Superman films, not the comic universe, if that’s relevant. In-character he refers to himself as General Zod. It’s totally clear that it’s a normal guy in a costume, not an appearance of the actual Zod.

If it’s relevant, our comic is like an indie slice-of-life period piece (think like Ghost World type thing), so it’s not something anybody would ever mistake for an actual superhero comic, or knock-off, and it’ll be clear that there’s no intent to mislead a reader/buyer about what it is.

My instinct is that these are examples of fair use, as the comic takes place in the real world where such comic characters exist and are well-known and there’s no intent to mislead. However we’re not lawyers so we thought we should ask. Thank you in advance!
posted by churl to Media & Arts (7 answers total) 1 user marked this as a favorite
I’m collaborating on a comic series

You will probably get some good answers here.

In addition, a business venture needs a legal budget. You need a lawyer and careful research that is focused on your specific publication ideas.
posted by JimN2TAW at 1:41 PM on February 7, 2017

I think this will be a bit of a legal hornet's nest. My google-fu is failing, but I remember there being some legal difficulties just with Faith Erin Hicks having a comic called "The Adventures of Superhero Girl" because there are trademark issues regarding the term "superhero".

I think it'd be safer to obfuscate the Superman specifics with a made up person like "Admiral Penny Farthing" or something, or find a different existing comic hero with the appropriate Creative Commons license.

(I looked up Una the Blade, for instance, and she is under a Creative Commons Attribution-NonCommercial-ShareAlike International License, which means you can use it, credit it, but can't make money off of it or claim the copyright yourself.)
posted by jillithd at 2:02 PM on February 7, 2017

As an example, Moose Lake is a comic that looks to have the Creative Commons Attribution International license that can be used, even commercially, as long as it is credited.
posted by jillithd at 2:06 PM on February 7, 2017

IANAL, but I think you would be fine. Alex Robinson's Box Office Poison (Which is being reprinted in monthly comics, in colour, right now!) was a slice-of-life series with a heavy pop culture bent that had references to and depictions of Stars Wars properties (Toys, costumes) & comic characters (Reproductions of Tijuana Bible-type parodies). You could try asking him if there were legal issues, but I'd be surprised if there were. The series has been in print for 15+ years without any changes to the content that I'm aware of. As you say, it will be clear that you're not trying to pull a fast one and you're not reproducing copyrighted material.
posted by Alvy Ampersand at 2:48 PM on February 7, 2017

I think you're OK on #2, but #1 is probably a problem. Think about it this way: If you were writing a novel, you could have a hero who references in some way, Holden Caulfield's character in The Catcher in the Rye. Talks about him, impersonates him, imitates him, whatever. By name. That's fine, it's fair use. (The original Caulfield character makes a bunch of cultural references, himself, in Catcher.) But, if you then called your book The New Catcher in the Rye, or something like that, you'd hear from the lawyers for J. D. Salinger's estate. (IANAL)
posted by beagle at 3:00 PM on February 7, 2017

If you're in the US, copyright law works a little differently than you seem to be thinking; there isn't really an absolute threshold where you are definitely on the right or wrong side of a line. Rather, there's what's called a "fair use" defense, if you get sued. A lawyer can tell you what would likely cut in your favor and what would likely cut against you if you were sued, and give you a sense of how safe you were, but you wouldn't know for sure until it happened. Eyeballing it, the for-profit nature of the venture would cut against you, but you'd probably be able to define your work as transformative/commentary/parody and it wouldn't be substantial, so you might be fine. Only a lawyer working for you could give you a good sense of it.

More important to your than copyright law, though, might be trademark law, which works totally differently. It might be that you can refer to Superman abstractly (as suggested above) but can't use the word Superman, or show the logo -- or it might be that you can do those things but have to stay away from specific quotation like "The Death of Superman." I agree with those who think you should talk to a lawyer with specificity about your particular project.
posted by gerryblog at 3:54 PM on February 7, 2017 [3 favorites]

IANAL, and I think you need to talk to an actual lawyer familiar with Intellectual Property law, for 2 reasons:

1) "My instinct is that these are examples of fair use" is fine and all, but "fair use" is determined by actual court cases and precedents set by those court cases. If DC Comics sends you a "Cease and Desist" letter, you don't just get to send them back a latter that says "fair use" and that's the end of it. Your and our instincts may be worthless when it comes to what has actually been determined to be "fair use" as a result of various lawsuits. You need an expert opinion from someone who is familiar with case law on the topic.

2) "Copyright" and Trademark" are similar concepts but operate under very different laws and precedents, and with a major iconic character like Superman (and maybe even Zod) you may be wandering into trademark problems more than copyright problems. Again, advice from an actual expert who can look at your material in person is what you need.
posted by soundguy99 at 3:54 PM on February 7, 2017 [3 favorites]

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