Charities have realized that comics characters are an effective way to get money and attention, but for every authorized use — such as the Met’s superhero fashion exhibit or Diane von Furstenberg’s Wonder Woman collection — there are countless other examples of charities using comic-book icons without permission. Every so often, a publisher clamps down on one of these initiatives–and their reward is typically negative press. Just this month, for example, DC Comics was criticized for not giving the Heroes Initiative permission to include pictures of DC properties in The 3-Minute Sketchbook.
Singling out DC is a bit unfair — Marvel has had its own share of charitable controversy, and DC has allowed its characters to be used for other charitable projects — but the broader question raised by such incidents is not unreasonable. After all, if the money is going to a charity, why shouldn’t a publisher just let its characters help a good cause?
One major reason is trademark law.
In a nutshell, a trademark owner must protect its marks if it does want to lose them. A publisher that turns a blind eye when other organizations use its marks to raise money could end up seeing a court declare those marks to be generic or abandoned.
The need to police one’s marks extends even to authorized licensees. If a trademark holder merely grants what is called a “naked license” — permission without sufficient quality control — a court could have a legal basis for concluding that the trademark had in fact lapsed.
This puts a company in a difficult position. It could, to avoid bad PR, set up a licensing contract and monitoring mechanism designed to enable as many charities as possible to use characters for a good cause, but at some point the company will feel the need to draw a line to avoid tarnishing the brand. A character drawn nude or having sex, advocacy for a controversial cause, an image used in ways that compete with a commercial licensor — there are any number of situations that could prompt a company to refuse to allow a particular use, and in some cases the potential for bad publicity would be worse than if they’d never licensed the characters at all.
The need to monitor, for example, might help explain why a company may be hesitant to license to a charity associated with comic artists as opposed to some other cause. Given the culture of artistic autonomy, especially in the indy realm, exerting corporate control over a comic art fund raiser might not only result in bad press but damage professional relationships that the company might otherwise want to nurture.
Given the potential hazards, we shouldn’t be surprised — or too judgmental — when a publisher exercises what might seem to be extreme care in the charities it allows to use its marks. There is, however, at least one relatively easy option for a charity that wants to license a comics character without too much fuss:
Licensable Bear – he lives for it!