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[southx]

I'm a professional photographer interested in making portraits of people dressed in Halloween costumes.  What potential legal issues could I run into when selling a portrait of a client dressed as a trademarked/copyrighted character?  Would I hold the copyright to the image free and clear?

Here is my current thinking, please correct me where I'm wrong.  The subject's costume is itself a derivative work if its based on someone else's artwork, that much is pretty clear from my research.  My image of them is a portrait of the person in the costume, the costume is coincidental from my point of view as I would be happy to photograph them regardless of what they were wearing and did not in anyway direct their choice of wardrobe.  Would this likely qualify as "fair use"?  Regardless, would it even be considered a "derivative work"?

What about a case where an individual has a very good representation of a character and its not obvious that its the subject under the makeup/mask? 

I also do not intend to describe the images using the trademarked names of the characters (i.e. portrait of "Johnny Smith" as opposed to portrait of "Batman").

I would rather not go the "work for hire" route and transfer copyright responsibility to the client, but would that be a viable option to side step liability?

My only intended uses, currently, would be to sell physical prints and digital reproductions to the clients themselves and to use the images for promotional purposes.  What are my risks in this context?  What if I wanted to expand that usage?  How about resale for editorial use?  My understanding is that as long as I hold the copyright, I can sell the image to whomever I wish and that its up to them to sort out permission regarding usage and content...  is that correct?

With the vast array of global artwork that exists it seems unreasonable to expect that I be aware of each character, foreign and domestic, that my customers may choose to dress up as.

Thanks.

[Kaitlin]

Under the situation you describe I would be very surprised if there would be a problem, but you're wise to be cautious and prepared.

As far as trademarks go, if the use being made of a picture of a mark would not be likely lead someone to think the trademark holder sponsored the picture, then the use is not a "trademark" use.  The only theoretical trademark problem I see might be if the trademark were exploited in a way that made a point of disparaging it in a way that would seriously affect its value to the owner, but there's a lot of latitude for art to be viewed as speech, so even in that unlikely scenario I would think freedom of expression principles would kick in. 

As for copyright, while I would like to think that what you describe is abundantly fair use, you never know who's going to complain about what these days.  There are a some knowledgeable folk active in the copyright forum who may be able to give you some good thoughts. 

With respect to making the portraits a work for hire, if the photographs would actually constitute a copyright violation, that would not get you off the hook.