copyrighted characters

[sabanknight]

As a generic example lets say I was designing a game and I wanted a Mario like character in it. I draw my own mario for the game is this in anyway copyright infringment? If so what if there were difference in the two Marios ex. different color clothing and different hair style, also if this is not illegal does that extend to the name Mario as well?

A second question if such a parodied character is considered copyright infringment how does television get away with it ex. Harvey Birdman created by william street productions as far as I am aware does not own the rights to Hana Barbara cartoons. my hypothesis on this is that they are A) alltered in some way or B) they are in some way considered public domain. another example I can think of is Southpark specificly their parody of Family Guy which the creators of Family Guy are also guilty of on their own show. I guess a sumed up version of this question is how do they get away with it?

 

[FlyingRon]

It's violation of both copyrights and trademarks most likely.

There is a small leeway in the law for parody use.

 

[quincy]

To expand a little bit on what FlyingRon said, you can use a character resembling a copyrighted character (like Mario or the South Park kids) for purposes of a parody or a spoof. This is generally considered a fair use.

However, the parody or spoof must be obvious. Anyone who sees the character must reasonably see it as a criticism or commentary on the original and not mistake it for the original. Only the minimum amount of copyrighted material necessary to conjure up the idea of the original can be borrowed for it to be fair use - in other words, you can not copy the character exactly and expect it to be fair use. And, it would not be fair use if the use of the copyrighted character in this parody or spoof destroys the market in any way for the original copyrighted version.

While not often used, a disclaimer or notice that alerts the viewers that what they are viewing is a parody or spoof can be useful, although it, alone, will not prevent an infringement suit if the other conditions for fair use are not met.

As for changing the appearance of a character for your own use, this can be tricky. A mere change of clothes or hair color can still be infringement if the character still resembles the original copyrighted character. Charlie Brown's round head can be copied, for example, because a round head is not unique. However you could not copy his body shape, distinctive sweater, or his actions and words ("Rats!" is a distinctive Charlie Brown comment and, therefore, should not become a distinctive comment for your own character). Likewise, Marge Simpson's blue hair is distinctive and could lead to an infringement suit if your cartoon character copied this feature.

There was a case where a Superman look-alike cartoon was found to be not infringing, because the cartoon character was nothing like the copyrighted Superman in either actions or in words. He had no super powers. Yet a non-look-alike Superman, if he changes clothes in a telephone booth, has super powers, or is a reporter for the Daily Planet, would probably be copyright infringement.

Your best bet in designing your game and creating your character is to be thoroughly original. One way to be original, if you are stuck, is to read a non-illustrated book with a character in it that is similar to the one you want to create. Then use the image created in your head to create the character.

Disney created Cinderella with blonde hair, although the original folk tales do not describe Cinderella that way - it was merely how she was envisioned by the Disney folks. If you look at the children's section at any book store, you will find a wide-range of appearances in the Cinderellas and Evil Queens depicted.

That is what you should hope to create for your game - something that is uniquely your own. The world already has a Mario. They don't yet have a sabanknight.

 

[sabanknight]

Thank you for your in depth answer this was pretty much what I was looking for. The game however is meant to be a parody of other characters as part of a hook for the game. It probably will just be a little free shareware game but if it was popular it would be a shame if it could not grow to be something more without being copyright murder. Just wanted to get my facts straight before starting production.

As a side note that last bit was a great little quote too bad their already is a Saban

 

[FlyingRon]

I'd also be careful with things like your user name. Haim Saban may take issue with the abuse of his trademarks as well since you seem to be in a related field.

 

[sabanknight]

honestly had to google haim Saban did not know who that was. Saban is a mispelled version(would of spelt it right if I remebered how but over the years this spelling has stuck with me) of a old old Video game character.

 

[FlyingRon]

Well since you're stumping for cartoon characters it would still behoove you not to use something that is the EXACT spelling of one the most influential men in the industry and also the name of the company he created.