who would own the rights in this scenario?

[buttered toast]

Alright, so I have another artist friend who wanted me to get one of their questions answered here by you lovely people!

The question they proposed is quite the conundrum to describe and rather tough to answer.


The friend in question has an ugly looking dragon creature that they own the full legal rights to.
They enjoy drawing fanart, and has been drawing their favorite characters as monster versions for laughs.

There is one character they are attached to that they have monsterfied and has been drawing them all the time. (I think the character is from nickelodeon)
The monsterfied character has all the original characters clothing and hair,but the species is of their monster creature.
My friend claims the character is a parody since they use the monsterfied character to not only poke fun at the actual original character but to poke fun at their own monster species.
They also use them as an example as to show how a person goes about daily life after being turned into one of these monsters. (I guess these are were creatures? )

The question proposed, who would own this "monsterfied character" if at all. I want to say the character is a grey area and that no one owns it, but that is just me.

1. My friend?

2. Nickelodeon?

3. Both parties would own it?

3. Grey area?

4. no ownership exists?

 

[FlyingRon]

Your friend has rights to his creative work. The question is whether he is also infringing on Viacom's copyright and trademark rights. It's not sufficient to just declare something a parody and say fair use makes it OK. It may or may not be fair use. Fair use isn't some preemptive strike either. It's something you can raise as a defense once you are sued over your infringment.

Further, I'm not seeing the parody aspect. Just because you transform the character into another form doesn't make it a parody.

Trademark is even more involved. Viacom may have trademarks on the characters and parody isn't a defense here.

 

[quincy]

... The friend in question has an ugly looking dragon creature that they own the full legal rights to.
They enjoy drawing fanart, and has been drawing their favorite characters as monster versions for laughs.

There is one character they are attached to that they have monsterfied and has been drawing them all the time. (I think the character is from nickelodeon)
The monsterfied character has all the original characters clothing and hair,but the species is of their monster creature.
My friend claims the character is a parody since they use the monsterfied character to not only poke fun at the actual original character but to poke fun at their own monster species.
They also use them as an example as to show how a person goes about daily life after being turned into one of these monsters. (I guess these are were creatures? )

A parody is more than "poking fun" at another's copyrighted work. A parody when done well will comment on or criticize the original work, adding new expression or meaning to the original. Dressing up a monster in clothes borrowed from a copyrighted character will not on its own qualify as a parody.

Although there are many cases where courts have been asked to decide if a new work can be seen as a parody of an original copyrighted work or if the new work infringes on the rights held in the original work, here is one case that provides a closer look at the factors a court weighs when deciding whether a work meets the elements necessary to qualify as a parody or whether the new work is merely an attempt to capitalize off the original work by drawing attention to the new work. Here is a link to Campbell v. Acuff-Rose, 510 US 569 (1994):
https://www.law.cornell.edu/supct/html/92-1292.ZS.html

And here are some other parody cases your friend might wish to review:

Dr. Seuss Enterprises v. Penguin Books USA, Inc, 109 F.3d 1394 (9th Cir 1997): http://caselaw.findlaw.com/us-9th-circuit/1384979.html
Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc, 479 F. Supp 351 (N.D. Ga., 1979): http://www.leagle.com/decision/1979830479FSupp351_1784.xml/METRO-GOLDWYN-MAYER v. SHOWCASE ATLANTA CO-OP. PROD.
Suntrust Bank v. Houghton Mifflin Co, 268 F.2d 1257 (11th Circ 2001): http://caselaw.findlaw.com/us-11th-circuit-1332488.html

"Fair use" is not permission to use another's copyrighted work but rather a legal defense that can defeat a claim of infringement. A combination of factors are analyzed by a court when looking at fair use. These factors include the purpose and character of the use of the original, the nature of the original work used and the nature of the new work, the amount and substantiality of the portion of the original work used in relation to its whole, and the effect of the use on the value of or market for the original work.

Again, there are many cases where a court has been asked to decide if a new work created by using the copyrighted works of another can be seen as a fair use of the original copyrighted work. For a good (and clever) look at fair use in general, here is a link to Stanford University's Center for Internet and Society and Professor Eric Faden's "A Fair Use Tale" video: http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale

The question proposed, who would own this "monsterfied character" if at all. I want to say the character is a gray area and that no one owns it, but that is just me.

1. My friend?

Your friend will hold copyrights in any original and creative work he creates. If his "monster" is of his own creation, he owns the rights in his monster.

2. Nickelodeon?

Nickelodeon (Viacom) will hold copyrights in any original and creative works that are created for Nickelodeon (Viacom) where the rights have been licensed or transferred to them by the author of the original and creative works.

3. Both parties would own it?

Under certain circumstances, yes.

3. Grey area?

"Grey area" only in that it often takes a court to decide who owns the rights to a work and to decide if one work can be seen as infringing on the rights of another.

4. no ownership exists?

Copyright ownership would exist, in the situation as described by you.

I agree with FlyingRon that trademark rights (and the infringement and/or disparagement of) must also be considered.

 

[buttered toast]

The thing is, I don't think they are breaking any legal laws as they are not actually doing anything illegal with the character, just drawing it for fun.
They use the character on a Roleplay blog from what they showed me.

 

[quincy]

The thing is, I don't think they are breaking any legal laws as they are not actually doing anything illegal with the character, just drawing it for fun.
They use the character on a Roleplay blog from what they showed me.

If they are copying copyrighted elements of someone else's work, they are infringing on the rights of the copyright holder - even if the drawings are created just for fun.

Even "for fun" infringement can be costly for the infringer, if the copyrighted work they are using is registered with the US Copyright Office. With a federally registered work, the copyright holder is eligible to collect in damages from an infringer statutory damages of between $750 to $30,000 per infringement.

Your friend should either seek authorization from the copyright holder to publish drawings that borrow from an author's copyrighted work, or he should have his drawings reviewed by an IP attorney in his area, who after a personal look and comparison can better be able to determine if the use can be seen as infringing.

 

[buttered toast]

Thanks again for all the help. I have gone ahead and informed my friend that it would be best to talk to a copyright lawyer about this.
I doubt nickelodeon would do anything or care about someone drawing simple innocent sketches of a monster character wearing one of "their" characters clothes but they should do so anyway.

It can't hurt.

If I ever hear back from my friend about what the lawyer says I will let you all know.
Hopefully this thread wont lock me out at that point.

 

[quincy]

Thanks again for all the help. I have gone ahead and informed my friend that it would be best to talk to a copyright lawyer about this.
I doubt nickelodeon would do anything or care about someone drawing simple innocent sketches of a monster character wearing one of "their" characters clothes but they should do so anyway.

It can't hurt.

If I ever hear back from my friend about what the lawyer says I will let you all know.
Hopefully this thread wont lock me out at that point.

If the monster is only wearing clothes that are not distinctive and not tied directly to the copyrighted character, there generally would not be a problem. If, however, your friend is purposely invoking the copyrighted character by dressing his monster like the character, there could be a problem.

A personal review by a lawyer in your friend's area, to see exactly what it is your friend is doing with the other's copyrighted material, would be smart. It is better to learn now if his use is likely to be seen as infringing rather than have your friend receive from the copyright holder a cease and desist letter, a demand for money, and/or a date to appear in court.