Design · Copyright

Trademark and copy right laws with design parodies

Julie Krafchick Digital Media Professional: Design, Marketing, Startups

November 25th, 2013

I am working on a graphic design project and I was wondering if anyone knew the line of using an imitation/mockery of a trademarked product for commercial use. An example would be, using super mario brothers but putting a modern spin of having them jump through say san francisco. another example could be taking the periodic table and plugging in adobe products instead of the elements.

thoughts? 
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Sean McBeath Founder, Mechanical Engineer at Igor Institute

November 25th, 2013

The legal term that you're looking for is "derivative work." If a work is deemed to be substantially different from the original, it can be protected under this type of copyright. (The other way something like this might be covered is under a "fair use" exception; while these are mostly to allow for discussion and criticism of copyrighted materials, satire and parody are sometimes covered.)

But, as Joel points out, the American copyright system is basically written in favor of and controlled by companies with strong brands (Disney being the prime example).

Joel Magalnick Storyteller. Innovator. Leader.

November 25th, 2013

Regardless of where the line is - and courts have generally ruled in favor of the brands being mocked if it comes to commercial enterprises - if you were to create a campaign that used Mario Brothers, you'd have so many cease and desist letters you wouldn't be able to see straight. Companies like Nintendo and Adobe are very, very protective of their brands.

Bruce Leban Software developer, inventor, innovator

November 25th, 2013

The periodic table isn't owned by anyone, much less a corporation with more lawyers than you. Not true for Mario.

In the US, there are four factors to be considered for determining fair use, but there's no bright line dividing fair use from infringement. https://en.wikipedia.org/wiki/Fair_use

Parodies may be given more leeway but "a modern spin" doesn't sound like a parody to me, since it's primary purpose wouldn't be making fun of Mario or Nintendo.

Antonio Rocha-Ferreira

November 25th, 2013

1st: where to use? Doing what and in what way? Design parodies? What audience? Jurisdiction (where are you, the brand and the product) also plays a key role in all of this.

From an entrepreneurs view Its simple: for a limited audience, to make a point, ok. Can be acceptable and the possibility of backfiring is not that much. Worth the risk.

For commercial use, depends if you wanna risk a lawsuit or not. A single lawsuit can ruin a company in a second. Depending on where that company is registered, of course :D

Some of the exemples you mention (brands) are highly susceptible to causing problems. Others (periodic table) are not so much, because they are free knowledge.

I have found out that exact copies cause usually problems. "Blurred" visions, only using core concepts is usually less risky. Even if Mario is not very perceptible if I see a little guy running with "mario colours" my brain will perceive that. I recognise thats not the one, even that you are using it, but just different enough to not get caught. I've seen this example before and it worked. 

One thing thats also important is to search the web before, try to understand the behaviour of the their legal department. Finding some cases is also helpful because the rulings will have the "boundaries" written all over. 
If they are very active I wouldn't go for it. 

If your product depends on other brands to "work", I would strongly advise you to sought a professional before any launch. You don't want to spend a lot of money just to discover you burned it.

Bruce Leban Software developer, inventor, innovator

November 25th, 2013

More accurately, if you use someone else's work, you can get sued, period. Sure for personal/academic/personal project, the odds of getting sued may be low.

I can't help you if you don't think Nintendo will be upset if you put Mario on a cable car and sell it....

As to quotes, I think (IANAL) it's much easier to pass the fair use test for isolated quotes -- even well-known ones -- used for non-commercial purposes. For example, I'll cite "Go ahead, make my day" as a good example of a well-known quote, and I think that my chances of being sued for that are fairly low. But if I were to name my day spa: "Go ahead, make my day spa" I would not be at all surprised to get a cease and desist from someone. Ditto for selling it on ipad cases.

Julie Krafchick Digital Media Professional: Design, Marketing, Startups

November 25th, 2013

Thank you all for your help. This would be for commercial use (so to make a profit). The project I am working on doesn't rely on this, it is just one outlet I was looking to explore. I am also based out of San Francisco but my LLC is in Delaware. They would be sold online on consumer gear such as glasses, ipad cases, etc. 

Does anyone know about quotes? for example, movie quotes or also utilizing characters names? 

Joel Magalnick Storyteller. Innovator. Leader.

November 26th, 2013

There's an article today on Geekwire that can give you a taste of what would likely happen if you were to move forward on this project: http://www.geekwire.com/2013/goldieblox-beastie-boys-fight-legal/

Rob G

November 26th, 2013

no offense to the attorneys on this thread, but really GoldieBox?  you are a startup and you parody a well known Beastie Boys tune to get some buzz/recognition and maybe a super bowl ad via Intuit and when the Boys ask what you are doing YOU sue THEM?  I might be inclined to find a new lawyer if i was Debbie (the founder). 

John Adolph ♫ "Some people call me the firm lawyer / Some call me the startup CEO / No people call me Maurice"

November 25th, 2013

Are you looking to profit off this or is it more in the line of an artistic project?

Patrick Roch Founder & CEO at Roch Systems

November 25th, 2013

The courts have consistently protected the public's right to use the trademarks of others in order to engage in criticism, commentary, news reporting and other forms of noncommercial expression. 

 

See:  http://www.dmlp.org/legal-guide/using-trademarks-others

 

However, as the article states, it HAS to be *really* criticism, commentary, news reporting and otherwise NON-COMMERCIAL. 

 

***ANY graphic design, such as is described, is likely to be commercial use.***

 

That is to say, if someone’s going to USE the trademark in design, it’s not likely to be any of the exempted areas above.


Hope this helps!