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JSonnabend
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Re: Cartoon character
« Reply #5 on: Dec 22nd, 2006, 7:07am »
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Hasn't the "Superman" character been trademarked? I am sure I cannot just use him in a comic of my own without incurring the legal wrath of the owner?

Whether or not the Superman character has been "trademarked" is besides the point.  It is protected by copyright, and so you're not free to "use him in a comic of [your] own".
 
Also, utilizing a character in a serialized literary work, by itself, doesn't render the character a trademark.  To the extent the article you cite suggests that, it's wrong, period.
 
The title of a serialized literary work may become a trademark, e.g., the "Superman" comic books, but that doesn't create trademark rights in the character.  The artcle excerpt does mention "the reproduction of Superman's image on various tie-in products," which does create trademark rights in many instances.
 
- Jeff
« Last Edit: Dec 22nd, 2006, 7:08am by JSonnabend » IP Logged

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pg1067
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Re: Cartoon character
« Reply #6 on: Dec 22nd, 2006, 8:50am »
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The others have discussed the distinction between owning trademark rights and registering a trademark.
 
There are several benefits of registering trademarks.  Among other things, it puts the entire country on constructive notice of your asserted rights.  It also provides certain evidentiary presumptions and additional remedies for infringement.
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Andrei
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Re: Cartoon character
« Reply #7 on: Dec 22nd, 2006, 12:20pm »
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Interesting points brought up, but I have a question.
 
As an artist, I am entitled to draw whatever I want and do with the result as I please. So Theoretically i should be able to do a painting of superman (with no reference) and sell it for as much or as little as i choose without givign any credit to the owner of teh character, as long as i do not use the tradewmarked Sueperman logo or any typeface or treatment associated with it.
 
Am I right?
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Isaac
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Re: Cartoon character
« Reply #8 on: Dec 22nd, 2006, 12:49pm »
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on Dec 22nd, 2006, 12:20pm, Andrei wrote:
As an artist, I am entitled to draw whatever I want and do with the result as I please. So Theoretically i should be able to do a painting of superman (with no reference) and sell it for as much or as little as i choose without givign any credit to the owner of teh character

 
Actually, Superman is so pervasive that trying to suggest that you'd never seen a picture of the character before is not going to be convincing.    For infringement, even an unintentional reproduction from a picture you cannot recall seeing can constitute copying.  
 
And of course independent recreation would not be a defense against whatever trademark/Lanham act cause of action the owner can bring.
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Isaac
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Re: Cartoon character
« Reply #9 on: Dec 22nd, 2006, 2:08pm »
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on Dec 22nd, 2006, 12:20pm, Andrei wrote:
As an artist, I am entitled to draw whatever I want and do with the result as I please.

 
That's so overly broad that it is obviously not correct.
 
on Dec 22nd, 2006, 12:20pm, Andrei wrote:
So Theoretically i should be able to do a painting of superman (with no reference) and sell it for as much or as little as i choose without givign any credit to the owner of teh character, as long as i do not use the tradewmarked Sueperman logo or any typeface or treatment associated with it.
 
Am I right?

 
No.  There are two basic elements to a claim of copyright infringement:  (1) that the defendant had access to the work, and (2) that the two works are sufficiently similar.  Unless you "do a painting of superman" that is so dissimilar to any prior depiction of the character that your painting cannot be identified as "a painting of superman" (in which case, what would be the point?), then you'd be dead in the water.  As the other response noted, no court would take an "independent creation" argument seriously.
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