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Copyright/Trademark Where is the line between "inspired by" and "infringement"??

Discussion in 'Copyright, Trademark, Patent Law' started by Chelle_Creates, Jun 11, 2010.

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  1. Chelle_Creates

    Chelle_Creates Law Topic Starter New Member

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    I design digital scrapbooking supplies and sell "kits". The products are images available as digital downloads only.

    (I can't attach an example because this is my first post)

    But my customer base wants kits that work with the photos they have...like photos of their trip to Disneyland.

    I need guidance about walking the line between "inspired by" and copyright infringement.

    Let's say I wanted to make a digital kit "inspired by" Disney's Toy Story.

    1. Phrases. In my research "phrases" cannot be copyrighted. Does that mean I can make a word-art that says "to infinity and beyond"? Some of the things I've read say that because that sort of quote would be included in a collection with other things that hint of the movie that collectively they would cross the line of infringement. Other examples: "Ka-Chow" or "Fish are Friends"

    2. Images. Obviously I cannot scan and re-use the images from the movie, but let's say I want to make a digital kit "inspired by" Disney's Nemo. Can I include my own drawings of fish? How about an orange clown fish? A black, yellow, and white angelfish, a blue and gold fish, and a turtle? Even if those fish are part of a larger collection...whale, dolphin, etc.

    3. The park. Can I make a "castle" with similar colors to the castles in D-land? Doll-like characters from various countries (small world), a train station, a Matterhorn-like Mountain?

    4. Songs. Can I name a Beauty and the Beast inspired kit "Tale as Old as Time" (a line from one of the songs)?

    5. Names. Are the names of characters from the movies somehow protected? Can I name a kit "Incredibles" or "Lightning McQueen"?

    6. Is there a place I can go to check out what Disney has copyrighted/trademarked/etc? For example, I've heard conflicting opinions about the 3 circles that constitute the mickeyhead/ears. Some people say it's copyrighted (or trademarked) others say it's not or else "the unofficial guide to D-land" wouldn't be able to use that image even if they make it from orange and apple slices.

    Thanks for your help!
    --Chelle
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Sorry about the inability to post links or attachments - perhaps I'll change the latter. We have so many spammers who want to post links that it's just not practical at this time to provide them for new posters.

    Regarding your question, I can't tell you exactly what is and isn't proper without a full review of what you are doing and a proper legal consultation. That said, I'll give you the reality.

    In my experience, Disney is one of the most vigilant companies protecting their intellectual property. If you try to run any YouTube type service where people are uploading content of any type, e.g. video, ringtones, graphics, etc., they will send a tough sounding legal letter before you can say "come again?"

    So let's talk law. Copyright isn't the game here - it's trademark. If there was a character named "Bill Smith" - that would be problematic. But "Lightning McQueen" or something very unique? I'm thinking Disney immediately. Even assuming there is no trademark for that name, you'd be stepping so close to the bounds of passing off your goods as a Disney associated product that Disney's lawyers will undoubtedly find some reason to file a lawsuit and challenge your war chest to see who is right.

    I don't have the time at the moment to go over your examples but let's use the previous paragraph as a guide. If your purpose and the appearance comes off as an attempt to subtly draw the consumer to some association with Disney... then I wish you the best of luck. Let me ask you this - after drawing your own fish, why do you need to tell everyone that it is inspired by Disney's Nemo?
     
  3. albright

    albright New Member

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    From my research, if you are at all attracting customers / interest because of the association to anything Disney related, then that is not going to fly.

    You can certainly create and sell the drawings of clown fish, but the second you associate it with a Disney property, you are probably in violation. You would have to describe it as something like a "cartoon fish" theme and have unique artwork.

    Basically, you can't even sell something as "inspired by", because this means you are banking off of and attracting customers solely because of the marketing and branding the property owner has already done.

    The exception would be "fair use", but from your description this would definitely not be fair use (freedom of expression), since you are not expressing any new ideas like parody or satire of the original work.
     
  4. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I agree with the assessment here. As I said, even if somehow you're skirting the line of being clear or fair use, Disney will undoubtedly see your actions as being "within the zone of danger." And if you're promoting your product as being "inspired by" a Disney character, that mere mention alone doesn't quite pass the smell test, IMHO. Why not start a new game "inspired by the National Football League" which, to some, could mean endorsed? You're skirting a very fine line and playing a dangerous game, IMHO, and likely to lose.
     

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