Fan conventions are a place for industry professionals, celebrities, and pop culture icons to interact with their fans directly and bless the lucky few with autographs. Cons also offer independent artists an opportunity to display their portfolios and sell their wares directly to a dedicated consumer base. The most popular fan art pieces at comic book conventions are typically unlicensed fan-art of super heroes, pop culture characters, and video game icons. When visiting C2E2 last month, I witnessed an intriguing convergence of a pop icon and pop art which had perplexing legal implications.
While visiting C2E2 I met a young woman who had won the opportunity to get an autograph from the marvelous all-father of comics, Stan Lee. She explained that she was ecstatic to win, but terrified as well because initially she had nothing with her for Stan Lee to sign. In a rush, she bought the first thing she could find in the fan artists’ block that had Spider Man on it. What she ended up with was a print of the Spider Man Desk internet meme (the image that accompanies this article). Surprisingly, Stan Lee had no problem signing the suggestive print – offering his signature and a laugh with an exclamation of “Excelsior!”
First off, that is downright awesome and hilarious. God bless Stan Lee for loving his fans enough to sign a piece of art lampooning one of his own beloved characters. However, in doing so Stan Lee effectively endorsed a piece of artwork infringing on his own intellectual property – the very kind of fan art that receives cease and desist letters from Marvel every day. Not knowing anything about copyright law, my new friend was just thrilled she had met Stan Lee and had a cool autographed picture to prove it. Me on the other hand…my brain hurt.
The images, characters, and even character histories of our favorite comic book and video game characters are protected under copyright laws. Large companies like Marvel zealously enforce their copyrights rights to both quash competition and to increase their own licensing revenue. Though actively protecting its copyrights is good for Marvel’s bottom line, it often comes at the expense of alienating its dedicated fan base who produce and distribute unlicensed fan art. The end result is a duplicitous balancing act that is the most obvious at fan conventions. On the weekend at fan conventions across the country, copyright holders like Marvel share a common space with and praise the fan art they will be planning litigation against on Monday.
Copyright enforcement usually begins a cease and desist letter like this. The copyright holder puts the infringing work’s owner on notice of their infringement and can typically threaten litigation or offer sale of a license to the infringer. The infringer can then either fold or fight. Purchasing a license or calling it quits is the fastest resolution for small time infringers, but for those in for the long haul there are numerous frameworks for the defense for infringing works. The most common defenses to copyright infringement that are relevant to most comic and video game fan art are fair use, parody, and satire protections.
Fair use parameters are outlined in 17 U.S.C. §107. Fair use is an affirmative defense which makes copyright infringement allowable in certain circumstances. Courts weigh the nature of the work, whether it is commercial or not for profit, how much of the copyrighted work is reproduced, and the market effects on the value of the copyrighted work. Infringing works that are academic or for news reporting purposes are usually eligible for fair use exceptions, for example. In regard to our humble Spider Man Desk internet meme, however, it is far more likely that the parody and satire defenses of fair use would be more applicable.
The Supreme Court has held that parody and satire qualify for fair use protections under §107. Parodies and satires typically bring new content or commentary to the table. At that point, their new “transformative” nature is taken into consideration and is weighed against the degree they infringe an original work. If a work is funny or offers some kind of socially redeeming commentary on the original work, chances are that it can qualify for fair use as well. It’s a good thing too because without this kind of legal defense framework, we would be denied the pleasure of virtually every example of referential comedy there is.
It would be fascinating to read a court opinion applying fair use to internet memes and fan-made merchandise. It’s not a grey area of law, but it would be great to see some distinctions carved out for new uses. In the meantime, it’s good to know that parody and satire are still strong defenses that can shield fan artists from copyright litigation. Stan Lee certainly seems to enjoy the fan art based on his creations. He definitely knows the value of fans’ good will and the free advertising their fan art provides. If his legal team at Marvel did too, maybe fan artists would have less to worry about.