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Superman drawings removed from auction

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Several people sent us think link to a Boing Boing post about a children’s cancer charity benefit being shut down because of unauthoized use of DC characters. Organizer Alex explains:

I messed up. I just got notice that two of the Superman related auctions have been removed from the site and the rest are probably next. I don’t know what to do now. I have to start canceling auctions and issuing refunds. That means all the fees and such I’m now responsible for which is money i just don’t have, and I have no idea if I’m still obligated to the middleman ebay uses for their charity auctions.

I’ve gone ahead and canceled the auctions still running that featured Warner Bros properties. I’m not sure what to do about the ones (like the ones that were canceled by DC) that are already completed. I’ll be talking to ebay, paypal, missionfish (the people that handle ebay’s charity donations) the artists and auction winners.


While this sounds very very crappy, esp. given all the other charity auctions going on, bear in mind this was mostly likely a Warner Bros. thing and had nothing to do with DC Comics. Boing Boing readers were reminded of the time that Disney lawyers requested a children’s day care center paint over murals of copyrighted characters Mickey and Donald, etc. GRINCH.

  1. I can understand (legally) the argument Disney has against the display of their copyrighted characters in a public place, but can Warner Bros. legally get away with forbidding someone from auctioning off products that depict a copyrighted character?

    That’s like Ford suing a police department for selling a Taurus in a police auction, or Nintendo suing someone for selling his Wii on Craigslist.

  2. Not really.
    I’m assuming these were original art produced for auction, and not art from any Superman comic or official Warners product?
    eBay is full of artists selling sketches of copyrighted characters; it’s impossible to say how many get pulled or who gets cease and desist letters. But Warner has every right to go after unauthorized use.
    Not very good PR going after charitable auctions, though. Some suit apparently didn’t read the auction copy in full.

  3. >> That’s like Ford suing a police department for selling a Taurus in a police auction, or Nintendo suing someone for selling his Wii on Craigslist.>>

    Not quite. Ford presumably made that Taurus and sold it, and Nintendo made and sold the Wii. The people who own them have a right to re-sell them.

    The charity auction offered such things as:

    Batman and Robin illustration by Bard!

    Superman’s rogues gallery by Paul Salvi!

    Supergirl illustration by Mike Netzer!

    Supergirl drawing and lots of cool Love and Capes swag from Thom Zahler!

    Batmobile illustration by Eric Stettmeier!

    Superman illustration by Dave Bertrand!

    Superman on a dinosaur print by Chris Haley!

    …none of which were produced by or under license from DC. So they don’t really parallel re-selling a Taurus. More like selling a car made with Ford’s patents and trademarks used without Ford’s permission.

    Which doesn’t address the fact that any of these items, sold in Artist’s Alley at a con, would have likely passed unremarked on, but that’s not a legal principle; those sales could be objected to as well on the same grounds. And as noted, this isn’t DC, it’s someone at Warner Bros. who probably doesn’t know these things get sold at cons, too.

    kdb

  4. @Vinic: Actually, it’s more like a fashion company suing a store for selling a fake bag imprinted with a copied trademark or design, a car company shutting down production of a knockoff car that infringed on its trade dress or design patent. That sort of legal action happens all the time.

    It’s important to remember the broader context here. Fake branded comics merch has gone viral, and company lawyers have ramped up enforcement proportionally. A company that allows charitable bootlegs to thrive arguably undermines the validity and effectiveness of its other enforcement efforts. This is particularly important in regard to trademark, where a brand owner can actually lose its IP protection if it does not police the mark.

  5. Vinic-

    I’m figuring the artwork being auctioned was not work that Warners or DC authorized artists to do. I don’t think it’s a situation of an artist who drew an issue of Batman and owns the physical pages donating that art to charity, but someone correct me if that IS the case.

    Most of the time, the companies that own the trademarks and copyrights on these characters let this stuff slide. But if they want to stop it, it’s their right, if the artwork was not authorized by them. If they wanted to go through ebay, deviantart, livejournal, any artist alley at a con, and so on and find all the artists who are doing paid commissions of their characters and send them cease and desist orders, they can. They usually just DON’T, so it seems very unfair when they single out one person or group who’s doing it and let others get away with it.

  6. You know…this all could have potentially been avoided if the guy trying to run this charity deal had inquired about permission first. I haven’t read any of his quoted responses that detailed e-mailing a contact at DC Comics to clear it first or to clear it now. I could be completely wrong about whether he sought any permission. But…if he hasn’t…then it is kinda silly that he’s just sitting on his hands now rather than asking for permission for the remaining auctions and even clearance for the ones that have already completed their financial transactions. I don’t want to say he’s settled into the victim role too quickly, because he’s said he’s not trying to play a victim…but he is taking a defeatist stance far too easily.

  7. I just had an eBay auction (I’m selling a licensing style guide for Batman: The Animated Series) taken down on the basis of an Intellectual Property violation, despite the fact that I’m selling only the item, not a license or the right to reproduce what’s contained in the item.

    I think Warner Bros. is stomping on these perceived problems with a fairly large boot (eBay is, of course, quick to acquiesce), and woe be it if you happen to fall into a grey area.

  8. This was posted by Ali (Sometimes Alexis) http://www.myspace.com/xpiratequeenx which I thought was kind of interesting.

    “One thing, though, he says he feels that he was wrong legally, but I’m not so sure. I had a couple of professors who were illustrators or pop artists, and I’m pretty sure that your art is protected so long as it is an original work that is not reproduced, and these auctions were for original work. Original art is a gray area in copyright law, but Andy Warhol and Roy Lichtenstein successfully fought for their right to paint Mickey Mouse, so I’m pretty sure that you could fight to draw Superman. Copyright laws were created to protect creative people, not punish sick kids.”

  9. “I just had an eBay auction (I’m selling a licensing style guide for Batman: The Animated Series) taken down on the basis of an Intellectual Property violation, despite the fact that I’m selling only the item, not a license or the right to reproduce what’s contained in the item.”

    That might be a different issue. Although I’ve seen lots of licensing style guides sold on the secondary market, I also know that some rights holders view them the same way as movie studios consider “for-your-consideration” screener videos or electronic press kits or material designated “not for resale.”

    So it may not be that they’re objecting to your reselling a style guide because they think afraid you’re implying you’re selling rights to the reproduce their trademarks. It may be that they object because you’re selling an item that (in their understanding) cannot be resold because the terms under which it was created and distributed precluded its resale. Which is not exactly the same issue as this charity auction.

    Anyway, that’s a tangential point to the original situation, where I think it’s safe to say that both (1) Warner Bros. could’ve exercised its rights in a more public-relations-aware and less draconian manner; and (2) the organizer probably could have made some inquiries to begin with to make sure it was OK (it would’ve been great if the charity could’ve responded to any overzealous Warner Bros. lawyering by saying, “Oh, but DC said it was OK. See this?”)

  10. As far as I know working for DC, you can draw these characters at a con or ebay as long as it’s a one of a kind original piece of art and NOT a print or reproduction of one image. This is all bullshit anyways since Warner Bros would have to shut down cons left and right if they were really serious about copyright issues. Bootlegging has been going on for decades. They shut a charity auction down where the money goes to benefit some place and they let Johnny Sixpack draw some female Joker character with a dildo in an artist alley. Oh please…If I was that guy running the auction, I’d tell em I’d stopped it but I’d still run it two weeks later. Fuck em.

  11. As for the guy who was selling the style guide on Ebay for Batman. The Style Guide CD that a licensee gets when they purchase the license for products SHOULD and MUST be returned to the copyright holder after the said product was made of license agreement ended. All art that Warner Bros or anyone else gives out is still theirs…that’s how it works and that’s why they told you to take it down.

    As for murals. This is a joke too. I drove past a pre-K daycare the other day and EVERY window pane had a different character from Spongebob to Winnie the Pooh on it. What’s the big deal if it was all painted nicely and professionally???? Which this was. The license holder usually puts the kilbosh on these murals when the characters are OFF MODEL, which in a lot of cases is the reality. I’ve seen some lame ass looking Spidey’s painted on comic shop windows but some wannabee artist.

  12. @Christopher Moonlight: Andy Warhol once defined art as “anything you can get away with.” He & Lichtenstein may have gotten away with it, but that doesn’t make their art a legal precedent.

    The professors would give more sound advice if they relied on actual law. For example, one leading decision in this area is Rogers v. Koons, in which a photographer successfully sued Jeff Koons over a pop art sculpture based on the photographer’s copyrighted work. For more, check out the following links:

    http://en.wikipedia.org/wiki/Rogers_v._Koons
    http://bulk.resource.org/courts.gov/c/F2/960/960.F2d.301.91-7396.91-7540.91-7442.234.235.html

    Similarly, pop art that reproduces another’s trademark also presents a serious risk of an infringement action. There are exceptions in which the use is allowed, but they are not as broad as many artists assume.

  13. If DC is going to quash all unlicensed use of their characters, they are going to have guys working full time pulling down auctions at ebay.

    I would suggest getting aboard ebay’s list of approved charities and directing all of the time and effort using that site as a portal.

    Bill

  14. “Bad artists copy. Good artists steal.” –Pablo Picasso

    This isn’t a copyright issue (unless the art being sold is copied from a copyrighted work) but a trademark issue. Trademark must be vigorously defended, in perpetuity, or else the trademark expires and anyone can use it. (Which is why DC publishes “Shazam” and Marvel publishes “Captain Marvel”, and why MAD Magazine can trademark the grinning head device even though there are historical examples from the turn of the century.)

  15. I think the problem here is as much (or moreso) a trademark question as it is a copyright question. The problem is that American trademark law *requires* that the owner of the trademark take action to stop its use. If you know that people are using your trademark without permission, and you don’t do anything to stop it, then the law says that you’re undermining your own rights to the trademark.

    There are a million different situations where that concept actually makes well and good legal sense, but it also means that you end up with these odd little applications here. But, at the end of the day, strange or not, it’s still what the trademark law requires the companies to do.

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