“You should make (insert idea here)”
People often give us design suggestions. I love this, it helps me know what is on my customers minds.
And I keep a list. Currently elephants are trending. And turtles.
However many of the suggestions are from popular movies, comics, and sci-fi franchises.
The designs are therefore protected under copyright law, by companies with big budgets and expensive lawyers.
We have neither of those things.
“But so and so is doing it.”
Yes, many small companies and artisans produce items that use images and logos from popular books, movies, sci-fi franchises, etc.
Some are legal, some are not. As with most things involving the law, its complicated. There are 3 legal reasons someone may use copyrighted material:
1. They purchased the license
2. They are covered under fair use doctrine (more on this later)
3. They are not selling the art (usually safe, but not always)
And one illegal reason.
4. They are violating the copyright but don’t make enough money (yet) for the big boys to sue them.
Reason 4, in my opinion, is a shaky foundation on which to build a business.
Get too successful and I may have to stop producing the popular items that made us successful. Do’h!
I prefer not to poke the bear.
So what constitutes fair use?
I am not a lawyer, but I play one on the googles. This is what I could turn up.
When considering fair use, the law looks at 4 factors.
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
- Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- Effect of the use upon the potential market for or value of the copyrighted work
Or as I translate them:
- Me teach ok, make money bad
- Information ok, creative mostly bad
- Small bit ok, big bit bad
- Me make big money off your stuff bad
Numbers 2 and 3 have some grey area, and this is where many artists sneak into fair use territory.
3 is what makes re-mixing and sampling of music legal.
Creative material that is transformative can be fair use. Via nolo.com:
“…the status of a transformative work seems to be defined by two questions:
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?”
For example, many of the amazing graphic artists at comic book conventions are transformative and therefore fair use of the source material.
Parody (not satire) can also be fair use. This is also tricky territory. Via Stanford:
“In a parody, for example, the parodist transforms the original by holding it up to ridicule. At the same time, a work does not become a parody simply because the author models characters after those found in a famous work.”
Parody must reference the work it is inspired by to be considered fair use, not simply use the characters.
A Lumen design, such as the one above, does not fall under any of the Fair Use rules.
Maybe when we are millionaires we will buy the rights.