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!
October 22nd, 2008 at 10:56 am
Because of the highly litigious nature of our society, such over-compensation for one’s trademarks is now considered reasonable. Time-Warner (DC’s patron) are the same folks who clamped down on the tweener who was running a Harry Potter site, sending a cease and desist letter and making the papers for being a bunch of big muggle-beaters. But does anyone remember the nursery school in florida that got threatened with a lawsuit because they had (unauthorized) paintings of Disney characters up in the classrooms? And how Warner Brothers immediately sent a professional art crew down to paint Looney tunes characters instead, free of charge (and with lots of fanfare)? There’s endless examples of this, and they all sound bullyish, but they’re all pretty reasonable, *from the company’s viewpoint*.
But the problem is, there are absolutely people out there who would take every example of a use that was not authorized, whip up a claim that the company has not enforced their trademark, and before you know it we’d be bemoaning the fact that Fictional Comics might not own Major Mighty Muscles anymore because of of some fan web site. It became quite popular to do when video became big business – a guy would claim a movie was out of copyright and in the Public Domain, and therefore he could release copies of said films without any oversight or fees. (It’s a Wonderful Life and Night of the Living dead are the two best examples). Closer to home, the reason the THUNDER Agents’ copyrights went through such an ordeal in the 90′s was because people were claiming they’d lapsed, and soon everybody was putting out their own version. And need I mention the Valiant Comics mess from only a year or so back? With millions, potentially billions of dollars standing on it, companies are well aware of the dangers of not enforcing those trademarks and copyrights, and are exceedingly cautious, to the seeming point of lunacy.
Yes, the companies could set up a department to handle fan and charity use of their characters, and set up a turnkey process for getting permissions (a starters kit of legalese for websites, et al), but usually it’s just plain cheaper to write charity XYZ a check as a donation rather than have to go through the mishegas of writing up the paperwork. Lucasfilm knows full well where their money comes from, so they have LOTS of such systems in place. Time Warner simply has more important things to think about than whether or not a few comics fans get their noses out of joint.
This is another one of those “Required vs. Right” scenarios. The Company has to decide whether the minor amount of PR they’ll get for these uses equals the amount they’d have to spend in due dilligence to get it done safely, from a legal viewpoint. Considering the case they’re in with the Siegel estate, they know all too well the problems that come up with rights. Usually, they decide it’s not.
October 22nd, 2008 at 11:25 am
I’ve always wondered where the companies stand on the position of their characters in Fine Art. There is an artist named Anthony Lister who does these large canvases of comic book characters, such as Batman, Spider-Man, and Superman. Sometimes he combines elements of their costumes to make them somewhat unique, but usually he’ll just paints them in their original form. His pieces sell for large sums of money, and he has books published of these paintings. Isn’t he infringing on DC and Marvel’s trademarks?
Check it out at:
http://www.anthonylister.com/gallery.cfm?mixedmedia=yes
October 22nd, 2008 at 5:13 pm
It’s important to distinguish between trademark and copyright here- trademarks have to be defended, copyrights don’t, but trademarks are narrower in scope.
I actually wrote a short story for a DOCTOR WHO fanthology that was published in 2001, called “Lifedeath”. It was for charity so the BBC turned a blind eye, but it really couldn’t be promoted as a Doctor Who book or do anything that would make it look official, so instead of the WHO logo, the cover and spine had an image that was based on it but manipulated it into a more abstract icon. With superheroes it’s tougher because at least for the big ones like Superman and Wonder Woman, their actual appearance is trademarked, and of course we’re talking about visual representations.
Lister and others may be able to get by on a “parody”/commentary defense.
October 22nd, 2008 at 5:53 pm
I’m not sure that the Met Museum exhibit was what you would call a “charity” event or cause, as most people don’t consider multi-million-dollar museums charities.
Diane von Furstenberg’s line certainly gives a “portion” of proceeds to a charity, which is commendable for another multi-million-dollar corporation.
However, Wonder Woman has been the central figure for three years now in the grassroots event WONDER WOMAN DAY, wherein comic creators from all over the world have donated art for auction, with 100% of the money going to Domestic Violence shelters and a Women’s Crisis Line. Not only has the event garnered worldwide press (except in the comic book world, where it seems un-newsworthy), but the Mayor of Portland declared it Wonder Woman Day (a super-hero declaration of this sort in other cities is generally only reserved for big corporate-sponsored events).
In the first two years, $47,000 was raised, almost half of what the Siegel auction raised, without the benefit of TV stars and company presidents.
For those who’d like to learn more about the event this Sunday October 26, or see the 200+ pieces of fantastic art up for auction, go to http://www.WonderWomanMuseum.com
And remember that not only do 100% of the monies go to the charities, but it’s done BY comic book people FOR comic book people.
October 22nd, 2008 at 6:41 pm
What about stuff like this: spidermanfightscancer.com They obviously have not gotten Marvel approval to use the character, logos, etc (which are all over the boy’s small town on banners and ads downtown) but can you feel good about going after a toddler with cancer?
October 25th, 2008 at 2:47 pm
@David That’s actually a hot issue in some parts of the IP world. Many artists have infringed on corporate copyright and trademark, and corporations are beginning to take action.
@Evan Interesting story! I should note, though, that the parody/commentary defense isn’t as effective or applicable as many artists think.
@Andy The Met, like some other multi-billion-dollar organizations such as Yale and Harvard, is a charity exempt under 501(c)(3). More info here: http://www.guidestar.org/pqShowGsReport.do?partner=justgive&npoId=390161
@Jake You raise the dilemma that many companies face more often than most people realize.
Charitable initiatives that brand themselves with a character without authorization typically are infringing on trademark and copyright, and especially in regard to trademark the negative consequences for the rights holder can be substantial. Saying–as has become the norm nowadays–that the event is for a charity and that no copyright/trademark infringement is intended doesn’t do much of anything legally–just because my bumper sticker says “no speeding intended” when my car is going 100 mph won’t get a ticket dismissed.
Nonetheless, enforcing IP rights in such a situation can be a highly uncomfortable affair. As @Vinnie indicates, lawyers for a business corporation face difficult strategic decisions on a regular basis.