What is a trademark anyway?

Chamber005

Chamber005

Carbonite Member
So, I brought this up over in Questfest briefly, and I've just always been really curious about American trademark law. I see all of these YouTube videos and films made for Comic Con fests using character like Batman, Superman, Wolverine, Punisher, Spiderman -- whoever, and I get that you can't use an emblem (like the Superman shield) or a typeface with specific title/design (like, "X-men: The Age of Apocalypse", or "World's Finest"), but how can parody be legal in copyright (e.g. Harry Bottom and the Half Inch Prick), but if someone makes a homemade James Bond flick (and receives no profits) they can be issued a Cease and Desist?

Or, I should ask -- has any studio or corporation ever actually won a case in this regard? Do corporations like Warners or Marvel or DC really have any legal recourse when a trailer like "Grayson" is tossed around at festivals for no profit? And, if they did, wouldn't they have most certainly made Grayson or Batman: Dead End go away?

I mean, if I wanted to call a character in a story Sherlock Holmes and give him a pipe to smoke and set him in the late 1800s, where does the trademark infringement begin -- if you aren't actually selling the property to an audience?
 
There's trademark and copyright (in your example of Sherlock Holmes). It is a gray area that requires legal insight. In the case of YouTube, there is a rather large pending lawsuit already in place. Because of the ad revenue garnered by the site, the creator/poster may not be making any money, but YouTube is somewhere in the process. The issue is more of a "is money being made anywhere in the viewing chain that is because of the content?

Michael
 
There is no gray area. You have either protected your mark or you have not.
You can put TM after your logo after you have started the trademark process... which takes a few months. After it's legally registered, you can then use the circled R as a sign that your logo is indeed owned by you and protected.
A copyright atty can handle this for you.
 
Chamber005 said:
I mean, if I wanted to call a character in a story Sherlock Holmes and give him a pipe to smoke and set him in the late 1800s, where does the trademark infringement begin -- if you aren't actually selling the property to an audience?
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If the character is in the public domain, as I believe Sherlock Holmes is, you are free to do anything you want with it.

The creators of Batman and Superman or any of the other superheroes own the rights to their creations. The sell the movie rights to filmmakers, generally the big studios, who then own the movie rights as layed out in their contracts. You can bet that includes serialization. Sometimes, for reasons of their own, they may choose to overlook a copyright infringement, if they feel it is to their advantage, but they may just as easily send out a cease and desist letter to be followed by legal action if necessary.

Owner of trademarks have to be ever vigilant that their trademark doesn't end up in the public domain as a part of common language. Think Kleenex® instead of tissue, Q-Tip® instead of cotton swab or Xerox® instead of copier.
 
Blaine said:
If the character is in the public domain, as I believe Sherlock Holmes is, you are free to do anything you want with it.

The creators of Batman and Superman or any of the other superheroes own the rights to their creations. The sell the movie rights to filmmakers, generally the big studios, who then own the movie rights as layed out in their contracts. You can bet that includes serialization. Sometimes, for reasons of their own, they may choose to overlook a copyright infringement, if they feel it is to their advantage, but they may just as easily send out a cease and desist letter to be followed by legal action if necessary.

Owner of trademarks have to be ever vigilant that their trademark doesn't end up in the public domain as a part of common language. Think Kleenex® instead of tissue, Q-Tip® instead of cotton swab or Xerox® instead of copier.
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See, I get logos (like the Superman shield), and I get titles with specific typeface -- but if you made a movie about Spiderman or Blade or The Shadow, could the office that holds copyright over that "character" actually force you to not show your movie online? I've gone to a lot of people's sites where they offer "free DVDs" of their fan films if you donate $20 dollars or more, thus making them not-for-profit.

Andy Warhol made a fan film Batman Dracula without securing any rights, as did Hugh Hefner and many others. I see thousands of people every day selling "commissions" of art work that show Superman or Batman or Spiderman. I've never heard of Marvel or DC ever showing up at a Comic Convention and slamming their fists down and telling Jim Lee he cannot draw a picture of Catwoman and sell it for $100 (which is exactly what artists do at conventions). So why do fan films seem to be so much a grey area? Why can't a person make a Star Wars movie and sell it, if they can draw a picture of Luke Skywalker and sell that?

I cannot see a distinction between making a Batman movie and taking a picture of someone in a Batman suit and selling it on ebay. I wonder if everyone is just scared of big corporations so that they don't even attempt to make money off of their fan films.

This is all just very interesting to me. It's like, "talk about Dracula, Frankenstien and the Wolfman all you want, but I'll see you penniless if you show a guy in a batsuit on camera" -- this seems to be the perspective of a lot of these fan filmmakers, when I'm not positive the copyright holders can actually copyright an idea (e.g., a guy named Bruce Wayne lost his parents as a kid and then grew up and decided to dress up like a bat and fight crime).
 
There is no way you ever win a lawsuit against a parody, it's completely protected under the First Amendment. It's really essential to having a free country that you be allowed to poke fun at anything you choose in a parody fashion, and that is something courts won't touch with a ten foot pole. Everyone in a legal department knows this, too, so you're not going to see many lawsuits against something like Scary Movie or whatever.
 
The gray area I was referring to in my post was about who gets revenue when posted on YouTube. Not about the validity of a trademark, registration, or copyright.

Michael
 
JonathanLB said:
There is no way you ever win a lawsuit against a parody, it's completely protected under the First Amendment. It's really essential to having a free country that you be allowed to poke fun at anything you choose in a parody fashion, and that is something courts won't touch with a ten foot pole. Everyone in a legal department knows this, too, so you're not going to see many lawsuits against something like Scary Movie or whatever.
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But that's my point. How do the courts have the right to distinguish between parody and, say, re-invisioning an existing story.

I mean, some people would say Scary Movie was a parody, but every movie, even the most far fetched comedy (like Spaceballs) still requires some dramatic content in order to survive.

I wonder if where these fan films put themselves in precarious positions because they're using either A) The name of the trademarked character in the title (like "Batman: Dead End" or "Star Wars: Revelations"), or B) They're using a specific trademark.

I just don't see why I can't draw a cartoon about a mouse and call him Mickey and make a profit -- so long as the name of the movie isn't "Mickey Mouse and the Fire Breathing Carpet Muncher".

(I'm not actually that concerned with making a fan film -- I just don't understand where Intellectual Property ends and free speech begins. I mean, how...in the WORLD does a show like Heroes get to exist using the exact same powers as the X-men and most of its plot points? Is it because Claire is a girl and Wolverine is a boy? Why can't Heroes put a guy with a healing factor and adamantium claws on its show and call him Wolverine? Why is THAT trademarked and yet all the things that make up Wolverine cannot be? The whole thing just seems bizarre to me.)
 
Chamber005 said:
But that's my point. How do the courts have the right to distinguish between parody and, say, re-invisioning an existing story.
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I just don't understand where Intellectual Property ends and free speech begins. I mean, how...in the WORLD does a show like Heroes get to exist using the exact same powers as the X-men and most of its plot points? Is it because Claire is a girl and Wolverine is a boy? Why can't Heroes put a guy with a healing factor and adamantium claws on its show and call him Wolverine? Why is THAT trademarked and yet all the things that make up Wolverine cannot be? The whole thing just seems bizarre to me.)
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Courts have the right to decide because they have the power of the State, with its army and police force and their very big guns, behind them to back them up. As citizens we have contractually agreed to abide by their judgment even if we disagree with it.

The whole thing hinges on the notion that ideas and concepts by themselves cannot be protected, only the specific and tangible expressions of those ideas.
 
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