Tuesday, January 03, 2006

IP Issues about Comics Issues

Mark Newport's hand-knit superhero costumes (Daredevil, Spider-Man, etc.) are neat, and the descriptions on the website make an intriguing case that merely by replicating the costumes in a new medium -- the traditionally feminine handicraft of knitting -- Newport has changed the meaning in ways that could justify a copyright fair use defense, and possibly even a trademark nonconfusion defense. But more striking to me are the embroidered comic book cover samplers -- I'd buy one if they weren't $1800.

Though these covers are much more clearly appropriations of someone else's effort than the costumes -- the covers literally underlie the material Newport added, whereas he invested a lot more of his own labor in knitting full-size costumes from scratch -- their trademark and copyright status is clearer. As for trademark, as long as the underlying covers really are from the comics, selling the samplers no more infringes on DC's rights than selling a VW bus whose sides are painted with flowers would infringe on VW's. As for copyright, Peker v. Masters Collection, 96 F.Supp.2d 216 (E.D.N.Y. 2000), holds that painting in oils over a poster of a painting, so that the poster closely resembles the original painting, does not infringe the derivative works right -- but in that case the court found a violation of the reproduction right because the defendant essentially created a new painting on top of the poster. That's probably not what happens here; for one thing, as far as I can tell, the samplers only have yarn on parts of the covers. This might be a case, like the CleanFlicks case, that arguably falls into a gap between the reproduction and derivative works right: not adding enough creative work to be independently copyrightable and thus not a derivative work, but also not engaging in enough copying to be a reproduction.

Still, comics companies have been getting more litigious of late, and Newport is offering his works for sale. I wonder if Newport will receive any threat letters.

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