Remember: something is only "fair use" when the guy or the gal in the black robe with the gavel tells you it is.
Copyrighted and trademarked materials appear everywhere: comic book illustrations & scripts, posters, sculptures, product labels, superhero logos, makeup & costume designs, song lyrics; even the creative selection and arrangement of public domain elements can be protected by copyright. You need to make sure that you have the right to include any of these materials in your book (a process called clearance).
And while you’re at it—did you base any of your comic book characters on a real-life person? Guess what: you may need that person’s written permission as well. Indeed, 3rd party owned intellectual property is the bane of the conscientious artist and filmmaker. Don’t fall into the trap of thinking that just because you own a physical copy—or even the original—of a piece of art that you have the right to use it in your comic book or film. Ownership of an issue of a comic created by somebody else gives you the right to read and sell that issue (or never read and keep mint-in-bag) but it doesn’t give you the right to incorporate its plot or characters into your own work. And that original pencil drawing by Alex Ross that you purchased at the latest Comic-Con? You can hang it in your house, but you can’t put it in your book.
Clearance is the process of evaluating third-party intellectual property that appears or is associated with your creative work to determine whether or not permission is needed to use it. It includes the following steps:
1. Identification of all third-party intellectual property
2. Analysis of potential intellectual property claims
3. Obtaining the necessary licenses and permissions where you need them
4. Removing or substantially changing all third-party intellectual property when you can’t obtain permissions or rely on fair use.
5. If you are using third-party intellectual property and can safely rely on fair use or similar doctrines, explaining to a contracting party (like a publisher) or an insurance carrier (like an E&O insurer) why permissions aren’t necessary.
Incidentally, the “fair use” exception to copyright infringement is not always reliable. Remember: something is only "fair use" when the guy or the gal in the black robe with the gavel tells you it is. In other words, you often have to spend lots of money to go to court and make that argument. It’s often cheaper just to get permission or remove questionable third-party content.
For more on analyzing fair use and tips and tricks on clearance, see The Pocket Lawyer for Filmmakers and The Pocket Lawyer for Comic Book Creators.
Parts of this blog been excerpted from The Pocket Lawyer for Comic Book Creators.
© 2017 Thomas A. Crowell, Esq.
Thomas A. Crowell, Esq. (tcrowell@lanesash.com) is a partner at the law firm of Lane Sash & Larrabee, LLP. He focuses his practice on intellectual property and media law.
NOT LEGAL ADVICE