Week_03
Legal and IP Frameworks / Comparing different case studies, Media use and Equity ownership
Lecture notes:
This lecture explores copyright overview and principles, and is presented by Alec Dudson, Kevin Poulter and Jonny Mayner. There will be case studies to highlight copyright issues.
We will ask the following questions:
- How do we become aware of naming and copyright issues?
- What are the basic pitfalls of illegal practice?
- What are the common areas of copyright process and the ethical and legal factors most commonly affecting graphic designers? (Model Release, children, ethics etc.)
Measures to be taken, when setting-up legal protections
How to protect your IP portfolio
Check the UK IPO database, to ensure that the relevant article is not already in use.
Register your Trademark; Not only should you register your trademark, domestically, you should seek to register the relevant Trademark in all of the territories, that you intend to operate in.
Written Contract; Establishing an iron-clad, written contract, prior to the commencing of the project. In this document, all parties should seek to establish their respective roles and the services, that they intend to provide. This agreement, should also outline the parameters pertaining to legal liability and financial matters.
Indemnity; Put in place policies that guarantee protections in the event of unforeseen circumstance. -This will allow the company to protect its financial investments and ensure, that its employees are safe-guarding against liability claims.
Establish a paper-trail, and take subsequent steps to document this record, meticulously. -In the event of a copyright claim, such records can prove to be an invaluable resource, in the assembly of a legal defence.
Forensic Data; In the event of a claim becoming the subject of a court hearing, it may be possible to present metadata as a form of evidence, in the defence against the copyright claim. This point highlights the need to retain all detail records of the creative process.
Damage to Reputation; Outside of the legal arena, the public forum is a tenuous pillar on which the success of most businesses rest. Therefore, the diligent management of this relationship is a sound action to take, in order to protect your IP. -A task exacerbated by the exponential growth, that has been observed in the use of Social Media. Public perception, is perhaps, more valuable to businesses than at any point prior.
Unregistered Rights; This is the right of ownership that is established by the creator, through the act of creating the respective item.
Third Party Infringement; How you choose to engage with Social Media can have detrimental consequences, for your IP. By posting your work online, you may risk infringing upon the rights of another creator, therefore, reflect on the items that are being entered into the public domain.-Are they reflecting poorly on your IP? Or do they in any way, pose a risk to the validity of your IP? Do said items risk infringing upon an existing copyright due to the disparities, in International Law?
Case study
Captain Marvel VS Captain Marvel
Created in 1939, by Fawcett comics, Captain Marvel has been at the centre of an industry dispute, that has been on-going for Eighty years. This conflict first began when DC (Darkhorse Comics) the creators of Superman, whom had first appeared a year earlier in 1938, made a Trademark infringement claim, against Fawcett comics. This is followed by a cease and desist order, in June of 1941. Not until 1948, does the case finally make it to trial, with the Judge ruling that Captain Marvel is indeed, an infringement on the Superman Trademark.
Three years later in 1951, the case goes to appeal, the Judge overseeing the appeal concludes that, “While the character as a whole, may not be an infringement, the powers, the plots, and other components of it, might be.” After the receipt of this verdict, Fawcett are confronted by the choice between, seeking a retrial or launching a second appeal, which is deemed as being somewhat of a, forlorn action, by the legal team at Fawcett. In response to this difficult decision, it is decided that the comic book division at Fawcett will be closed.
Extraordinarily, the issue then remains dormant for over Two decades, until 1968. As as an aside: This period of time is often referred to as being The Golden Age, in the Comic book industry. Therefore, it is intriguing to consider that one of the most celebrated properties in the industry was largely inactive, during this period.
During 1968, we see the emergence of a new publisher in the comic book industry. This new company chooses to use the name Marvel, as its namesake; A decision that sets in motion the first of many conflicts to come, with DC (Darkhorse comics) The first of which arises in 1972, when DC acquires the rights to the Fawcett catalogue, including: The original Captain Marvel.
With Marvel having secured the Trademark for the name, Captain Marvel, in 1967, they are now in a position to make a Trademark infringement claim, against DC. Undeterred, DC promote the character of Captain Marvel in a new series of comic books, using the character sparingly, so as to not violate an earlier licensing agreement, that they had established with Fawcett. In a further effort to avoid a legal conflict with Marvel, they refer to the character as “The original Captain Marvel”.
In 1991, DC acquire all rights from Fawcett and begin using the character more aggressively, however, they are still unable to refer to the character using his namesake, making promoting the character difficult. This challenge was finally resolved in 2013, when DC rebranded the character of Captain Marvel, previously referred to as the original Captain Marvel, as Shazam.
As an observation: Even though, the character is fundamentally the same character as that of the original Captain Marvel, remaining largely unchanged since 1939, it is only the assigning of a new name that allows DC to market the character, without the risk of infringing upon the, Marvel-held, Trademark.
In closing, I would highlight the view, that the comic book industry is particularly susceptible to such developments, and this is partly due to the fact that there is a blurred line between, that which is to be considered original and that which is to be considered plagiarised.-A certain degree of artistic license is necessary for the industry to function, successfully.
Workshop challenge
The Challenge
Select a designed object and highlight the key areas that may infringe copyright or require IP protection.
The break-down and Analysis of the publication of a Graphic Novel
The following areas will be at risk of copyright infringement and may require IP protection:
Artwork
Copy
Colour-work
Ink-work
Lettering
Phrases
Merchandise
Characters
Plots
How can we protect our IP?
Contracts
All parties, to include external partners that are operating in international territories, shall be subject to a contractual obligation. No external parties operating in international territories may distribute the book, without prior permission from the creators.
Trademark
All work should be secured under a Trademark, both domestically and internationally.-A Trademark should be acquired for each territory, in which the company desires to operate.
Copyright
All content should be copyrighted, and all rights pertaining to the relevant parties, should be clearly outlined.
Financial liability and the distribution of Revenue
The contract should clearly outline the financial stakes for all parties involved, including; The risks that will be adopted by each of the relevant parties; The allocation of financial liabilities; Any, and all, sums of capital, accompanied by the stating of which relevant parties will be responsible, for each sum; The distribution of Revenue; And any other matters pertaining to financial considerations.
The Rights of the creators
How many creators will be involved in the creation of the book? Will each party have a financial stake, in the sharing of profits? Or will they be paid a pay-per-page, rate? All parties whom will have a role in the completion of the project must be declared, prior to the commencement of the project. Creators to include: Writers; Pencilers; Inkers; Colourists; Cover-Artists; and all other contributors.
Licensing
Which of the relevant parties retains the merchandising rights? If there are to be agreements with external parties, how will they impact project, going forward?
Stakeholders
All stakeholders must be declared, in the contract. Furthermore, each party must clearly outline the commitments made and the required returns, for their involvement in the project.
Production costs
A comprehensive analysis of all production costs should be included in the contract, not limited to; The start-up costs; The cost of materials and services; The number of staff required, accompanied by a schedule outlining the extent of each parties involvement, and the total cost of this participation. Specifically, in regards to producing a Graphic novel, the budget would seek to account for the printing of proofs; and if the subject of an international release, the production of foreign language editions.
Domestic distribution
All distribution channels shall be firmly established, prior to the commencement of the project. In this case, this may include: The hiring of a logistics consultancy, and the provision of the infrastructure required to roll-out a new product; The allocating of funds, to secure promotions such as media spots, a product launch event, in-store incentive schemes, and endorsements; Partnerships with the relevant distribution outlets, such as regional and national companies, specific to the comic book industry.
International distribution
All international partners will need to establish a contract, outlining the details of their role in the project. In the process, establishing the role of the respective parties, and the criteria for the successful implementation of the conditions outlined, therein. It would also be important for the creators and their partners to establish the validity of existing Trademarks and copyrights, subject to the respective laws, in each territory.
Marketing and Promotion
The role of all external partners will be clearly outlined prior to the project commencing, with the role of external partners such as Marketing consultancies and Full service Design agencies being firmly established in a contract. The marketing consultancy would be hired to oversee all promotional content and events, with support from the graphic design agency. All uses of artwork from the graphic novel, would be subject to permissions given by the creator. No unauthorised use of the Trademark or copyright would be permitted, without clear confirmation from the holders of those IPs.
Pay per page, rates and Fees
All relevant creators would be reimbursed either through the implementation of a pay-per-page strategy, or paid a one off fee upon completion of the relevant items. All creators retain the rights to their work, and may receive future royalties, in some instances.
Group Discussion
Bibliography
Maerker, J (2014). Superheroes for hire? Marvel comics and Jack Kirby heirs settle character copyright dispute. [online] Trademarkandcopyrightlawblog.com. Available at: https://www.trademarkandcopyrightlawblog.com/2014/10/superheroes-for-hire-marvel-comics-and-jack-kirby-heirs-settle-character-copyright-dispute/ [Accessed 14 June. 2020].
Bailey, J (2019). Copyright, Trademark and the Tale of Captain Marvel. [online] PlagiarismToday.com. Available at: https://www.plagiarismtoday.com/2019/05/29/copyright-trademark-and-the-tale-of-captain-marvel/ [Accessed 16 June. 2020].
Alderson, R (2015). Tokyo Olympic Games logo embroiled in plagiarism row. [online] TheGuardian.com. Available at: https://www.theguardian.com/artanddesign/2015/jul/30/tokyo-olympics-logo-plagiarism-row [Accessed 14 June. 2020].
JohnPrinceBranding 