Tagged: Copyright

Judge rules that an illustration style can’t be a trademark

Yesterday, Judge Janis Sammartino handed down a ruling in our ongoing case, Dr. Seuss Enterprises v. ComicMix, allowing the case to proceed to discovery while narrowing the allegations in significant ways. Buried in the order is a very important point that has implications for the entire comics industry, to wit (with footnotes and citations omitted):

Plaintiff claims Defendants misappropriated “the unique illustration style [of] the characters and backgrounds found throughout Dr. Seuss books, that have come to be instantly recognized by consumers as source identifiers for Dr. Seuss.” Defendant argues trademark law does not protect an artistic style. …

Most courts have held there is no trademark protection for the “style” of an artist. Style is a matter more properly protected by copyright law. …

Plaintiff cited no authority to support its assertion that its general “style” is a protectable trademark. Plaintiff only argues that the book can be subject to both trademark and copyright protection and that distinctive characters can qualify as trademarks. Plaintiff claims the Ninth Circuit has recognized Plaintiff owns trademark rights to “the character illustration of the Cat [in the Hat’s] ‘stove-pipe hat’.” But the illustration of the Cat’s hat is different than the general “illustration style” and non-specific “characters and backgrounds found throughout” Plaintiff’s books, in which Plaintiff asserts trademark rights now. And Plaintiff does not allege trademark rights in any specific character or background image in [Oh, The Places You’ll] Go! The Court is not holding illustrations of specific characters within Go! are precluded from trademark protection, but at this stage of the proceedings and based on the information in front of the Court, the Court finds that Plaintiff’s claimed general “illustration style” is not protectable.

What does this mean for comics? It puts plainly what many artists in the comics industry already knew: you can’t be legally dinged for drawing like Jack Kirby, or Neal Adams, or John Buscema, David Finch, Jim Lee or anybody else— not directly copying art, which might lead to a copyright infringement claim, but drawing in the style of a particular artist (or if you prefer, a particular school of art, like, say, the Bolognese or Kubert school) isn’t a trademark infringement. When we speak of an artist’s “trademark style” we’re not actually speaking of a legal trademark, and as such it’s not something that can be legally claimed.

And this means that if, say, Ty Templeton draws a portrait of me looking like I was drawn by Dr. Seuss, there’s not a thing Dr. Seuss Enterprises can do about it.

Of course, this is generally a good thing. This means that no artist can be charged with stealing someone else’s “trademark style” or the way they draw (or for that matter, how they shoot a photograph or a movie). We all learn from each other, we all influence each other— particularly in comics— and we all build on other works and artistic traditions and styles to create new works of art to tell stories.

If you’d like to read the ruling, click here.

The Law Is A Ass

Bob Ingersoll The Law Is A Ass #408


Sometimes I’m not here to tell you what went wrong with a story. Not what I usually do, but sometimes a story just gets the law right. Doesn’t stop me from writing about it. I can have as much fun explaining why the law works the way it was portrayed in a story as I can explaining why the law doesn’t work the way it was portrayed in a story. In fact, I can have more fun. When I write about why a story is right, no one gets mad at me.

Champions v2 #7 is one of those stories that got it right. For those who haven’t read it, the new Champions comic tells the adventures of some teenaged Marvel super heroes who teamed up after they became disillusioned with the behavior of the adult Marvel super heroes. Particularly their behavior in Civil War II.

I don’t blame them. I’ve spent long hours writing about how I’m disillusioned with the recent behavior of Marvel’s heroes. Only I didn’t limit it to Civil War II. There’s also Standoff, Death of X, Inhumans v X-Men, Secret Invasion, Dark Reign and just about every crossover this side of Marvel’s first Civil War story. Or the other side of Marvel’s first Civil War  story, for that matter. (I’m looking at you Heroes Reborn.)

Anyway because they were disillusioned, Ms. Marvel, Spider-Man (the un-Amazing Miles Morales version), and Nova left the Avengers to form the Champions. Other young super heroes joined them. Their goal was to become heroes who would not use excessive force or unnecessary death to accomplish their goals. (I presume Champions will still use necessary death; like when the book needs a sales boost, but maybe that’s just the cynic in me.)

After their first adventure, Ms. Marvel made a speech laying out the team’s manifesto. “We’re in a war for a better tomorrow. Join us. Help us to not take the easy road, and – I promise we’ll fight every fight they can throw at us. Help us win the hard way – the right way – not with hate, not with retribution, but with wisdom and hope. Help us become champions.” Videos of the speech went viral and made the Champions’ mission public giving them a manifesto destiny.

It also inspired other young people to do good things such as clean up beaches or build low-income housing. These people tagged their activities with the Champions’ C logo to show solidarity with the Champions’ agenda. So the Champions put their copyrighted logo into the public domain. That way anyone could use it when doing a good deed and promote the cause.

Now as this is a comic book story, we know no good deed – especially the good deed of a super hero team – goes … Well, I was going to say goes unpunished, but Frank Castle wasn’t anywhere near this story. Let’s say goes unopposed by a super villain team.

The super villain team du jour was the Freelancers, a team of super powered juvenile delinquents for hire. Usually by big corporations looking for someone to do their dirty work. Like shutting down protesters who were trying to block Roxxon from building an oil pipeline. Or displacing homeless people who were living in tents on land where some other corporation wanted to build luxury condos.

The Champions and Freelancers fought a couple of times until the Champions finally won a decisive victory. Or as decisive as any comic-book victory can be in an era where writers have discovered the phrase “To be continued!”

After their victory over the Freelancers in Champions V2 #7, the Champions learned two things. First, they learned there’s a SPOILER WARNING! coming. (As in I’m about to reveal the cliffhanger of Champions Vol 2 #7, so if you don’t want to know what it is, you might want to read something else; like Marvel’s original Champions series.) The second thing the Champions learned was that while they had put their copyrighted logo in the public domain, the Freelancers had received a trademark on the Champions’ C logo. Now the Freelancers were licensing the Champions logo for “huge amounts” of money to companies making, “Luxury goods. Gated communities. Cigarettes,” to undermine the Champions’ crusade and make themselves a fortune.

How could the Freelancers trademark the Champions’ logo, when the Champions had the copyright on it? Because like a lot of people, the Champions didn’t realize there’s difference between copyright and trademark. While both are part of what the legal profession calls Intellectual Property Law, they cover and protect entirely different things.

Copyright grants the creator of any creative endeavor the right to control who can make or distribute a copy of the work. Copyright is an IP protection for creators.

Trademark, on the other hand, is an IP protection for businesses. It means someone established a mark they use in their trade and have the right to dictate who can use the mark in their business. They can. Anyone they license it to can. But other businesses can’t.

Under current copyright law in America, a person gains a copyright in a work of art as soon as the artwork is completed. However, to obtain a trademark, someone must apply to the U.S. Patent and Trademark Office for the mark. If the Office feels that the requested trademark is valid, it can award the applicant the requested mark.

Some things can be trademarked, even though the original copyright associated with the property has fallen into public domain. Edgar Rice Burroughs’s original novel Tarzan of the Apes fell into public domain in the United States many years ago. But Edgar Rice Burroughs, Inc. https://www.edgarriceburroughs.com still holds a valid trademark on the name Tarzan. So while anyone is free to reprint a copy of the novel, ERB, Inc. can prevent that reprint from using the trademarked name Tarzan on the cover.

In our story, the Champions owned the copyright on their logo and allowed it to go into public domain so others could use it to promote the cause. However, they forgot to get a trademark on the logo. So, unlike ERB, Inc., they don’t control their own logo. Instead the Freelancers control the Champions’ logo and are licensing it to any business that wants to spite the Champions.

The lawyer in me is amused by this story. Not only because it was perfectly correct in its portrayal of the legal system, but also because I can’t help but think it was inspired by the real-life legal dispute between Marvel Comics and Hero Comics over the trademark on the title Champions.

What trademark dispute? I may write about that one of these weeks. Just as soon as I figure out a way to make the topic entertaining. Remember, I said the lawyer in me was amused. But only lawyers would find a trademark dispute amusing.

Soderbergh’s “Last” Film, Side Effects, Due on Disc in May

SideEffects_Final-PosterUniversal City, California – From Academy Award®-winning director Steven Soderbergh (Traffic, Contagion) comes this suspenseful tale of intrigue starring Channing Tatum (Magic Mike, 21 Jump Street), Academy Award® nominees Rooney Mara (The Girl with the Dragon Tattoo, The Social Network) and Jude Law (Sherlock Holmes: A Game of Shadows, Anna Karenina), and Academy Award® winner Catherine Zeta-Jones (Chicago, Ocean’s Twelve).Side Effects will be available on Digital Download on May 7, 2013 as well as Blu-ray™ Combo Pack, DVD and On Demand on May 21, 2013 from Universal Studios Home Entertainment.

After her husband (Tatum) is released from prison for insider trading, Emily (Mara) begins suffering from terrifying anxiety and turns to psychiatrist Dr. Banks (Law) for help.  But when Banks prescribes an experimental drug for her, the side effects have chilling and deadly consequences. Full of unexpected twists, Side Effects is the sexy psychological thriller that critics are calling “wildly unpredictable!” (Marlow Stern, Newsweek).

The Blu-ray Combo Pack allows fans to watch Side Effects anytime, anywhere on the device of their choice.  It includes a Blu-ray disc, a DVD, a Digital Copy and UltraViolet™ for the ultimate, complete viewing experience.

•                Blu-ray disc unleashes the power of your HDTV and is the best way to watch movies at home, featuring perfect hi-def picture and perfect hi-def sound.

•                DVD offers the flexibility and convenience of playing the movie in more places, both at home and while away.

•                Digital Copy provides fans with a choice of digital options to watch on devices such as iPhone®, iPad®, Android, computers and more.

•                UltraViolet is a revolutionary new way for fans to collect their moves and TV shows in the cloud.  UltraViolet™ lets consumers instantly stream and download to tablets, smartphones, computers and TVs.  Now available in both the United States and Canada.





•                ABLIXA COMMERCIAL – the fictional drug portrayed in the film

•                INTENIN COMMERCIAL


Cast: Jude Law, Rooney Mara, Catherine Zeta-Jones, Channing Tatum, Vinessa Shaw and Ann Dowd

Directed by: Steven Soderbergh

Written by: Scott Z. Burns

Casting by: Carmen Cuba, c.s.a.

Executive Producers: James D. Stern, Michael Polaire and Douglas E. Hansen

Producers: Lorenzo di Bonaventura, Gregory Jacobs and Scott Z. Burns

Co-Producers: A. Sasha Bardey and Elena de Leonardis

Director of Photography: Peter Andrews

Production Designer: Howard Cummings

Editor: Mary Ann Bernard

Costume Designer: Susan Lyall

Music by: Thomas Newman


Street Date: May 21, 2013

Copyright:  2013 Universal Studios.  All Rights Reserved.

Selection Number:  61123859

Running time:  1 Hour, 47 Minutes

Layers:  BD-50

Aspect Ratio: 1.85:1 Widescreen

Rating:  Rated R for sexuality, nudity, violence and language

Languages/Subtitles:  English SDH, Spanish, French

Sound:  DTS-HD Master Audio 5.1


Street Date:  May 21, 2013

Copyright:  2013 Universal Studios.  All Rights Reserved.

Selection Number: 61123858

Running time: 1 Hour, 47 Minutes

Layers: Dual Layer

Aspect Ratio: 1.85:1 Anamorphic Widescreen

Rating:  Rated R for sexuality, nudity, violence and language

Languages/Subtitles:  English SDH, Spanish, French

Sound:  Dolby Digital 5.1

‘South Park’ Creators Sued Over Lollipop King In ‘Imaginationland’

Imaginationland Episode I

Step 1: Sue Trey Parker and Matt Stone, the creators of South Park, for copyright violation.

Step 3: Profit!

Lollipops are meant to remain wholesome. This according to Exavier Wardlaw, creator of the children’s show “The Lollipop Forest,” who slapped Matt Stone and Trey Parker of “South Park” with a lawsuit claiming the show ripped off his lollipop character and defiled it.

TMZ obtained the details of the copyright infringement lawsuit against “South Park” filed by Wardlaw. The lawsuit alleges that the “South Park” character Lollipop King is a hack version of Wardlaw’s “Lollipop Forest” character Big Bad Lollipop. Wardlaw claims that his wholesome show was defiled when his character was exposed to “unwholesome language and sexual innuendo.”

Three episodes of “South Park” from 2007, entitled “Imaginationland,” featured Lollipop King and showed the candy being choked by a Storm Trooper, witnessing a suicide bombing and watching Kyle and Cartman engage in oral sex, TMZ notes. Still, “Imaginationland” scored an Emmy in 2008 for Outstanding Animated Program for a show one hour or more.

Wardlaw was seemingly unimpressed.

via ‘South Park’ Lawsuit: Creators Sued Over Use Of Lollipop King In ‘Imaginationland’.

Boy, this could really suck. Or blow, depending on the type of lollipop.

Watch the video that got the Hugo Awards live stream shut down and interrupted Neil Gaiman

Back in March, I was asked to put together video clips for this year’s Hugo Awards ceremony, which took place during Worldcon in Chicago on Sunday. Simple assignment— find short clips of the nominated works to introduce them to the audience.

Well, it didn’t quite happen that smoothly. As you may have heard by now, in the middle of the Hugo Awards ceremony at Worldcon, with thousands of people tuned into via video streaming service Ustream, from the people in the overflow room at the convention to people viewing it live at DragonCon to people all over the world, the feed cut off just as Neil Gaiman was giving his acceptance speech for his Doctor Who script, “The Doctor’s Wife”, replaced with the words, “Worldcon banned due to copyright infringement.”

Here’s the video in question, the clip reel for Best Dramatic Presentation, Short Form:


Do you see anything in there that violates Fair Use? Of course not. But then, you’re not an automated copyright violation monitoring service, which is what UStream is blaming the problem on. (You’ll note that this video is currently hosted on YouTube, and they don’t seem to be having any problems with it.) I happen to strongly disagree: this service worked almost exactly as UStream intended it to, with the exception that they couldn’t do anything when it was discovered that, whoopsie! The automated service has no intelligence and no off switch, and we’ve just pissed off people with millions of twitter followers. I also note that UStream has been taking down comments on their own site, which of course has not stopped people from commenting on Slashdot, TechCrunch, io9, and CNN stories.

I’m also marveling at the irony of cutting of Neil in mid-speech, as Neil is one of the foremost anti-censorship people in the comics industry, as a board member and major backer of the Comic Book Legal Defense Fund and a supporter of anti-censorship actions on the web going back to the 90s.

We’re still waiting for the full awards ceremony to be rebroadcast. In the meantime, we hope that you were following our Twitter feed, as we were covering the awards live. Universal Geek has posted audio of Neil Gaiman’s Hugo acceptance speech. And here is the clip reel for the Best Dramatic Presentation, Short Form:


Congratulations to all the winners. We hope the rest of the world will be able to see your victories shortly.

UPDATE: Yes, irony of ironies, the video is currently offline at YouTube due to a copyright claim from the BBC. Yes, we’re disputing it.

MARTHA THOMASES: Copyrights … and Copywrongs

MARTHA THOMASES: Copyrights … and Copywrongs

Last week, ComicMix, along with most of the Internet, protested against SOPA and PIPA, two bills that would have seriously compromised our ability to use the web to share information … and gossip … and pictures of cats.

The protests were so widespread that Congress backed down and sent the bills back to committee. It was a victory for those of us who spend all day enthralled by our computer screens, and, more important, it was a victory for the free exchange of ideas.

Still, I can understand the motivation behind the bill, despite how crudely and ham-handedly it was written. The purpose was to protect intellectual property. As a writer, I enjoy getting paid for my work. It would make me grumpy if someone else made money from my efforts and didn’t include me in the payday.

If anything, this hubbub shines a light on our wonky and unfair copyright laws. The purpose of copyright is not only to protect the rights of creators, but also to encourage creativity in a capitalist system. If my writing can make me money, I’ll be encouraged to write more. The same is true for songwriters, artists, choreographers, filmmakers, and comic book crews.

Unfortunately, our particular version of the capitalist system doesn’t work that way.

Songwriters, for example, collect royalties from those who record (and then sell) their songs. In many, many cases, they are not able to get their work published without giving away a large percentage (usually as a co-writing credit) to the publisher. As a result, a lot of musicians don’t care if their work gets downloaded illegally, because it increases their audience and they can make more money – which they don’t have to share – on tour.

On a larger scale, this is true in movies and television. We’ve all heard the stories about actors, directors or screenwriters who supposedly have profit participation in their films, but the studios claim there are no profits.

In comics, at least in so-called mainstream comics, the price for a chance to work for a company that would distribute your creation was your copyright. The most famous example is Siegel and Shuster’s Superman. Things have improved, and if you work for Marvel or DC as a creator, you can now get health insurance and a contract (so you can get a mortgage), but you will still most likely have to agree to work for hire.

The major media corporations try to defend their anti-piracy efforts by saying they are protecting creative people. If only. As Kyle Baker  recently explained, the entertainment conglomerates treat creative people as interchangeable widgets. If one artist wants a living wage, ship the job overseas.


The Internet should make it easier for artists to communicate directly with their audiences, without paying the toll of working for a Disney or a Murdoch. It should level the playing field for all entrants.

It should also reduce the price of an admission ticket. Just ask Louis CK.

SATURDAY: Marc Alan Fishman

ComicMix Quick Picks – March 3, 2009

ComicMix Quick Picks – March 3, 2009

Today’s list of quick items:

Anything else? Consider this an open thread.

The latest on the Scans_Daily shutdown

The latest on the Scans_Daily shutdown

Well, this has been an entertaining weekend.

To recap: on Friday, the LiveJournal community scans_daily has been suspended for posting copyrighted material without the permission of copyright holders, which is against LiveJournal’s ToS.

Many people, looking for a focus to blame, have taken out their venom on Peter David, bombarding his site with comments, some supportive, some abusive, and pretty much chewing up computer cycles. This has required moving up a planned migration and upgrade to the site, and there’s nothing like doing an upgrade while a comment storm is going on.

(Incidentally, this person is one of the more obnoxious pinheads I’ve come across in a while, whose argument seems to distill to "I was rude to someone I stole things from, so he took back what I’d rightfully stolen, I think, and this makes him a bad man". I suspect this person felt that the three bears had no right to chase Goldilocks away, let alone eat her– especially since she didn’t like two-thirds of the porridge that she ate.)

Further commentary has been brought up by Johanna Draper Carlson and Gail Simone on the "you’re shutting down a free comics site! Bad!" side, Kevin Church and Lisa Fortuner on the "About bloody time" side, and Digital Strips’ Brigid Alverson giving equal time to both.

As for the scans_daily moderators, the best summation seems to be from schmevil. Stubbleupdate has offered to answer questions in an interview; I’ve already sent a list.


Google Book Settlement Site Is Up; Paying Authors $60 Per Scanned Book

Google Book Settlement Site Is Up; Paying Authors $60 Per Scanned Book

From TechCrunch via Tom Galloway:

Last October, Google signed a $125 million settlement with the Author’s Guild to pay authors for copyrighted works it has scanned and made available on the Web through its Google Book Search project. More than 7 million books have been scanned by Google so far, a large portion of them out of print. Today, the Google Book Settlement site went up, which allows authors and other copyright holders of out-of-print books the ability to submit claims to participate in the settlement.

What do they get? Authors, publishers, and other copyright holders will get a one-time payment of $60 per scanned book (or $5 to $15 for partial works). In return, Google will be able to index the books and display snippets in search results, as well as up to 20% of each book in preview mode. Google will also be able to show ads on these pages and make available for sale digital versions of each book. Authors and copyright holders will receive 63 percent of all advertising and e-commerce revenues associated with their works. With Google Book Search now available on mobile phones, downloaded e-books could become an interesting digital side-business for Google. (But please Google, convert the scanned text into something more easily legible on the screen).

Remember, this settlement is only for the millions of out-of-print books that are making zero revenues for authors and publishers today. So it is not a bad deal all around. Copyright holders have until January 5, 2010 to make a claim.

There don’t seem to be many comics scanned in, but you never know. One wonders how they apply it to periodicals alike magazines and comic books.

Classic Pulp Comics Make Their Way to The iPhone

Classic Pulp Comics Make Their Way to The iPhone

Do you often find yourself waiting in line at the bank, sitting on a train, or hanging out in church thinking to yourself “boy, I wish I could read some old issues of Racket Squad!” Well, you are in luck, thanks to Bit-o-lithic’s ComicZeal, you now can.

Just released for the iPhone and iPod Touch, ComicZeal allows you to read a selection of dozens of copyright-free Golden Age comics for a one-time fee. The smart features allow for landscape and portrait views, remembering your page when you leave the application, and the ability to zoom in on panels, and this could certainly be the beginning of mainstream comics on the iPhone. Here’s just the beginning selection of what ComicZeal has to offer, notably a larege selection of the underrated ACG titles are here:


Eerie–2 Issues

Forbidden Worlds–40 Issues

Out of this World–11 Issues

Outer Space–9 Issues

Racket Squad–29 Issues

Romantic Adventures–5 Issues

Strange Worlds–5 Issues



You can currently pick up ComicZeal in the App Store in iTunes or your iPhone today for a breezy $5.99.