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Batman costume...copyright infringement?

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FischTaleBatman costume...copyright infringement?
by on Sep 6, 2006 at 9:39:15 pm

This might be a stupid question and maybe a little paranoid, but I AM PARANOID about anything dealing with copyright.

I have some shots of a little kid running around in a Batman costume. We shot this as part of a documentary. It's used in a section talking about kids being kids and having fun. No one ever mentions Batman or alludes to the kid being a superhero or anything like that. It is just one of several B-roll shots of kids goofing off.

Is the use of the Batman costume and symbol a copyright infringement? As of right now I'm not using the shot because I just wasn't sure about the copyright issue so I figured, better safe than sorry. However, I know the producer loves the shot, so I want to have a definite answer when she asks me if we can put it in.

Thanks for any insight!

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Michael MunkittrickRe: Batman costume...copyright infringement?
by on Sep 7, 2006 at 5:30:29 pm

[FischTale] "Is the use of the Batman costume and symbol a copyright infringement?"

1. The mere sight of the child in the costume could be, and most likely would be overlooked as happenstance.
2. The visible logo, or crest of the DC character Batman would neccessitate a letter of clearance from the owner.

Considering that you're the "safe not sorry" type, it would be best to omit that shot or cleverly hide or distort the visible logo so as to be generally clear of copyright claims. If you opt to get a legal clearance, understand that it will be a month before you will hold the written legal paperwork as the wheels of inductry turn very slowly at DC.

A point of reference would be a shoot from a few years ago where one of my partners shot a spot for a regional collegiate bookstore. They had a lead character that resembled Superman and needed to get a clearance before the ad agency would run the spot. DC sent them a letter almost 45 days after the spot was due to be PULLED off the air, an entire three months after the initial request. Bet you butt that they would respond far faster if there were claims of infringement.

Michael Munkittrick
Gainesville, Florida USA

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FischTaleRe: Batman costume...copyright infringement?
by on Sep 7, 2006 at 5:36:37 pm

Thanks for the info. The shot is nice, but not critical, so it's gone!

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shvrRe: Batman costume...copyright infringement?
by on Sep 8, 2006 at 12:07:32 pm

I wouldn't be so quick to dismiss the shot. If it's a good shot (and good shots can be hard to come by) that really pertains to the subject matter at hand, then it's worth keeping. Remember, their is such a thing as fair use.

Obviously, you need to make you own decisions, but I personally resist the copyright paranoia when I have the sense that the shot is legit and really helps me make a point.

Of course, if you were talking about using Batman music and close ups of the Batman Crest and really making Batman stylized segment out of that shot, then that is clearly a different matter. But if this is simply incedental - a kid playing in a costume - then I would keep it.

Fuzzy blocks and pixelated faces are not pretty things and really distract from the content as everyone wonders what the hell are you hiding there - avoid them is possible.

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Michael MunkittrickRe: Batman costume...copyright infringement?
by on Sep 8, 2006 at 1:12:14 pm

[shvr] "Remember, their is such a thing as fair use."

Unfortunately, that latitude is not extended to trademarked logo and likeness or he'd be free and clear. The simple fact is that if he isn't certain, it's best not to trek too far from the comfort zone.

Michael Munkittrick
Gainesville, Florida USA

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Tim WilsonRe: Batman costume...copyright infringement?
by on Sep 9, 2006 at 2:06:07 am

Note that Fair Use is limited to personal, critical, or scholarly use ONLY, and even within that, with some very tight restrictions. It applies strictly to copyright.

There is no such thing as fair use for trademarks. There are non-infringing uses, say, a news story on kids costumes, but for an even vaguely commercial work (ie, if YOU get paid for it), the lawyers are bound by law to come after you. In order to preserve a trademark, they're required to come after every single known, or even possible, infringement. An undefended trademark is an unenforceable one. No trademark holder can afford for this to happen. They can all afford lawyers.

Note that courts have become increasingly friendly to trademark holders, thus much broader in their definition of infringement. A recent case had a court upholding Disney's contention that the phrase "glass slipper" infringed on their Cinderella trademark...even though the phrase comes from a story in the public domain that Disney never paid a dime for.

Here's something else to consider. Copyright infringement lawsuits are limited to the damage actually inflicted -- you'd have to pay up what it would have cost to obtain the rights legally, plus your legal costs and theirs, plus any additional penalties. Not fun, but mostly survivable.

For trademark infringement, your maximum liability is the *potential* value of the trademark! I don't know the value of a trademark like Batman, but the potential is surely in the billions. Now they'll likely not come after the full value of the trademark even if they truly believed a shot like this constitutes an infringement, but you mess with this at your genuine peril.

Short version: you won't win a fight against a lawyer. Pulling the shot was definitely the better part of valor.

A short PS about MTV blurring logos. They sometimes blur inappropriate things on clothing -- pictures of guns, obscenities, etc. -- and that's that. Something like a Nike logo on somebody's hat in a Spring Break special would certainly be a non-infringing use. So why blur it? Because of MTV's brilliant and inviolable rule: if you want your logo on our airwaves, pay for it, sucka. Gotta love that. Not meaning that to sound ironic or in any way condescending -- seriously, you gotta love that.

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shvrRe: Batman costume...copyright infringement?
by on Sep 9, 2006 at 3:32:13 am

It's really sad to see how paranoid everyone had become. Are you really telling me that I have to blur or remove the Nike swoosh on my subject's shoes, the IZOD aligator on my subject's shirt, the Ford logo on my subject's car, the Wells Fargo billboard passing by in the background and finally the 5 second shot of the kid wearing a Batman uniform - all incedental with no intent of infringement. I know it's easy for me to say it with nothing on the line - but if that was a good shot that was pertinent to the content at the moment - I'd keep it.

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Kathlyn LindeboomRe: Batman costume...copyright infringement?
by on Sep 9, 2006 at 3:36:53 am

It's not a case of paranoia, it is simply as case of: Can you see it? Yes? The get rid of it unless you have either permission or really deep pockets and like to pay money to those who OWN the rights -- you don't.



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Tim WilsonRe: Batman costume...copyright infringement?
by on Sep 9, 2006 at 1:39:30 pm

There's perhaps a little gray here.

First, MTV doesn't HAVE to blur a Nike logo. They do it because they want Nike's money -- MTV doesn't advertise anyone for free. In fact, when I ran an advertising company, I did the same thing -- never bought anything with a visible logo. If it had one, like my jeans, I removed all the tags. Bit of wankery, but my feeling really was that I was in the business of being paid to advertise.

However, there's the question of how the image is used. For example, you can't come even close to using Einstein's picture in an ad. He actually trademarked his own image while he was alive, and placed the funds in a non-profit trust to support the founding of the nation of Israel. The fund carries on.

Not meaning to make a political statement here about Zionism or anything. Just an observation that people have been leveraging trademarks for a very long time. And that non-profit organizations are explicitly NOT exempted. They have to raise funds, right? From Einstein's side, the only way to protect the revenue-stream of HIS designated non-profit organization is to protect the trademark.

One more example from the commercial side. Elvis's estate was worth very little when he died. Almost no cash on hand, certainly not enough to keep paying for his house. You know what happened next -- a merchandising blitz like the world has never seen, all based on the trademark of his image.

Here's an interesting exception. The folks at Paramount were genuinely befuddled by fan sites for Star Trek. They understood that these fan sites contributed to the ongoing value of the trademark...but the sites' uses of trademarked images and phrases was absolutely infringing. So what to do? They came up with a plan that remains a precedent: laid out the terms. Here are images for you to use...and if you're doing a good job, we'll give you some exclusives, etc.

And to repeat, there are some non-infringing uses of trademarks. If you're doing a crowd scene in a commercial piece, and the trademark isn't part of the "trade" you're being paid for, no worries.

When in doubt, leave it out. Or ask permission. Or call a lawyer, which will be cheaper than paying one after you get sued.

There are also plenty of books and websites about this stuff, which is one reason why courts are so hardline -- ignorance is no excuse, because it's not that hard to find out the right thing to do.

Start by asking here. :-)

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Michael MunkittrickRe: Batman costume...copyright infringement?
by on Sep 9, 2006 at 6:05:02 pm

[Tim Wilson] "MTV doesn't HAVE to blur a Nike logo."

True, however if you followed the law to the letter, so to speak, MTV would in fact owe dues for use of a registered trademark with the exception of live telecasts.

Overall, the relevance of a trademark's value and the protection of said trademark are often very similar in assumed value. Coca Cola sued Pepsi in the mid 1950s because they deemed the Pepsi product too close to their own and claimed infringement on, get this, NOT the formula but the trademark. Coca Cola WON a landmark case based on an argument that had little or nothing to do with the trademark, but everything to do with the marketability of the Coca Cola namesake. Then Pepsi got even with their "Pepsi Challenge" in the 1980s when they claimed that Coca Cola had done the SAME thing that Coca Cola had claimed Pepsi had done years earlier. It's not a widely known fact, but the original name of the Pepsi challenge was the "Coca Cola Challenge". Coca Cola released the rights to the challenge and Pepsi cleaned their clocks with their own weapon.

The moral of the story is that ANYTHING shown, seen or recognized as a trademark can, and could very well would be defend-able in any US court. The best defense is to KNOW what the corporate "style guide" and allowances are for the logo that's in question. Nearly all of that information can be found in the US Patent Office's online records, which are free for your review. As a guy with extensive use of numerous brands and parodies of official brands, I am reasonably well read on the subject and am extremely confident of the limits of latitude allowed, and extended by law.

Regardless of your decision to use (or not use) the Batman logo, I hope that all of these folks have offered some valuable information to your plight.

Good luck!!!

Michael Munkittrick
Gainesville, Florida USA

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shvrRe: Batman costume...copyright infringement?
by on Sep 27, 2006 at 6:12:34 am

If you watch the IFC channel. There's a commercial promoting Australia and one of the shots is of a kid in a batman costume running across the frame - was the shot you were talking about? - kinda of a strange coincedence. I wonder if they got permission from Warner / DC comics for that...

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