Want your very own Batmobile? Don’t we all. But you won’t be buying one from Gotham Garage any time soon. The 9th circuit court of appeals recently ruled that their replica Batmobiles where in violation of Time Warner’s copyright.
Mark Towle of Gotham Garage and his lawyers argued that cars, cartoon or otherwise, were not covered by the Batman copyright. In a particularly geeky ruling, judge Ikuta wrote “To the Batmobile!…No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” Cars are now people too, at least as far as copyright is concerned.
As an artist who sells geeky jewelry at Cons, stories like this beg the question: what is copyright infringement and what isn’t? Why did Gotham Garage get slammed with a suit but not the thousands of other artists making amazing fan art?
Before I go any further I need a disclaimer.
I am not a lawyer, but I play one on the googles.
Next some background. Copyright is bestowed upon the creator the moment they give their art a physical or digital form. The artist is not required to register the art with the government for the law to apply, although this can help with determining who created something first. Filing for an official copyright license also helps when suing for damages and obtaining reimbursement for lawyer fees.
There are 3 legal reasons someone may reproduce copyrighted material:
1. They purchased the license.
2. They are covered under fair use doctrine (full of grey area).
3. They are not selling their art (usually safe).
There is also one illegal reason an artist may use copyrighted material.
4. They are violating the copyright but don’t make enough money (yet) for the big boys to sue them.
Gotham Garage was caught by the fourth reason, as they were selling replica Batmobiles for $90,000 a piece. Maybe they did consult lawyers before making replicas and believed they were in fair use territory, or had a loophole. But it seems like shaky ground on which to build a business, especially when the bear you are poking is DC Comics and Time Warner, who have deep pockets for lawyers.
So what is Fair Use? And how can artists keep out of trouble?
Without going into too much legal jargon (that I barely understand anyway) there is a legal concept called “transformative” art that allows fair use of copyrighted material. 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?”
This is how much fan art that is sold at Cons sneaks into fair use territory. This art frequently expands on what the originators created. DC Comics, etc, may send a friendly cease and desist letter regardless of whether the artist believes the art to be transformative. The artist is legally required to stop making and selling the art in question until the matter is settled in court.
Many of the larger Cons police the art sold there, at least on paper. They require artists to sign forms stating they have legal rights to produce and sell the items at their table/booth. The Con also reserves the right to ask the artist to stop selling any items they deem illegal. How frequently this is actually enforced is difficult to determine, as I’ve never had a Con representative ask me about copyright nor heard of this happening. However it is highly likely that representatives from big companies will be present at the larger cons, and they may notice infringement.
Online platforms such as ETSY also have anti-copyright-infringement policies. However in practice their enforcement is spotty at best. This recently landed ETSY in hot water recently with their investors. The presence of knock offs and fan art on ETSY should shock no-one who has ever actually used the site. This begs the question how much research the investors actually did before putting down money. But I digress.
Finally, unlike Gotham Garage, most artists don’t generally make much money and there are a LOT of them making fan art. The big boys probably look the other way because it isn’t cost effective for them to go after everyone. All those cease and desist letters or lawsuits would make them look like bullies, which might piss off their fervent fan base. So small artists are probably safe, but I wouldn’t recommend building a large business on fan art. You could end up like Gotham Garage, thousands of dollars in lawyer fees and still have to stop making your most popular item.