Superhero Masks - crafts - copyright

[bobafitz]

Hi,

My other half creates felt masks for kids and sells them at craft markets making a few hundred pounds profit a month. Many of the masks are based on superheroes - spiderman/batman/captain America etc...
Someone recently asked if they could stock them in their shop and it got me thinking more about potential copyright issues.

My question is how does the copyright work on these.

She basically creates her own pattern by looking at lots of images on the net and then makes the mask from that (spiderman - red mask with black web like sticking/batman - black mask with two small black ears...etc)
The masks generally just cover the eyes (not full face)

She doesn't label them as 'spiderman/batman/hulk' simply as "superhero mask'.

Is she ultimately infringing - obviously there are a lot of people recreating superhero in all different shapes and forms and so how is it controlled by those who own the rights for those characters.

We are living and trading in the UK only also...

Thanks
Alli

 

[FlyingRon]

It works that the characters are protected by both copyright and trademarks. Your husband is making what is called a derivative use and when he sells them he is using those marks in commerce. As a result he is infringing both copyrights and trademarks. The copyright/trademark owner can indeed sue him and would prevail in court.

This forum deals with US law only. UK law here: http://www.thelawforum.co.uk. What I have said is also true in the UK (and about 190 other countries around the world). If you have further questions direct them to the UK forum.

 

[quincy]

There have been several lawsuits filed over costumes, including masks, for infringement on copyrights, trademarks and even patents - and some have had interesting results.

The information and the links provided below reflect the laws in the US and should not be taken to apply to the UK (although our IP laws are similar in many ways).

For a look at one case where the copyrightability of a superhero costume was questioned due to its "usefulness" as an article of clothing, there is "Chosun International, Inc v Chrisha Creations, Ltd," 214 F.3d 324 (2005). Here is a link to the case:
http://scholar.google.com/scholar_case?case=756425481838437825&q=chosun+international+chrisha&hl=en&as_sdt=2,5

Published in the March/April 2014 edition of "Landslide" (a publication of the American Bar Association's Section of Intellectual Property Law) was an article written by James E. Daily, Brad M. Desnoyer and Janet Fries, titled "IP and the Comic Book Superhero." This article provides an up-to-date look at comic heroes and how they can be (and cannot be) protected under copyright, trademark and even patent laws. Here is a link to the article:
http://www.americanbar.org/publications/landslide/2013-14/march-april/ip_and_comic_book_superhero.html

Although I agree with FlyingRon that your "other half" is risking a cease and desist notice from the holder of rights in the superhero character (whether sold in the US or in the UK), and there is potential for a lawsuit (both in the US and the UK), there is never a guarantee that any plaintiff will win any lawsuit against any defendant (and this is true both in the US and the UK).

Whether there is a legal risk, and how much of one, will depend on a whole host of facts and factors, and these are best reviewed by an attorney in your area of the world if your significant other wishes to continue with the sale of her masks.