The Lines That Separate Homage, Parody, and Infringement

You do not want to get between a mama bear and her cubs. A mama bear will do whatever it takes to protect her cubs and it doesn't matter if the danger is perceived or otherwise. Some companies are the same when it comes to their intellectual properties: Even the slightest challenge is a reason to unleash the lawyers. While some companies are more casual letting others infringe on their rights, all companies will only let others do so much with their IPs.

A common defense is the Fair Use doctrine. The basic idea is that people should be able to critique, make fun of, and otherwise be able to express their opinions. It should be noted that while some use Fair Use as an all-purpose shield, it is not an automatic defense; it has been shred to tatters in court before. In short, while it is a good generic defense, try to make sure that you have a little more going for you when you go to court.

With that said, there are three people who tend to go to war over IP rights: big companies, convention artists, and convention committees. The big companies need to put down any trademark challenges, the artists want to use the trademarks for their art, and the committees are never 100% of where they stand. With that in mind, this should help you to navigate the woods of IP issues and hopefully avoid those mama bears.

CAVEAT: I am not a lawyer, and anything you see here should not be construed as legal advice. Always talk to a lawyer before you do anything that may infringe on any sort of intellectual property rights. While I have interviewed and talked to lawyers, and have done my research, and thus look like I know what I'm talking about, I am still not a lawyer. YOU HAVE BEEN CAVEATED!

Parody

Parody is when you imitate someone else' style for the sake of comedy, usually exaggerating that style. Most countries allow for some form of parody; the idea is that they want to encourage freedom of expression, and that means allowing people to make fun of other people. As such, most countries have some form of the Fair Use doctrine, and thus they allow works that make fun of other entities and works.

An important point that needs to be made here is that what you create is parody; that is, you're making fun of the source material. If you use the source material to go after another target, the courts are less likely to judge in your favor. The example here is a book that targeted the OJ Simpson trial called "The Cat is NOT in the Hat! A Parody by Dr. Juice" that used a style based on that of Dr. Seuss; the courts ruled that the book was a satire that made fun of the trial, not Dr. Seuss, and as such was not subject to protection under Fair Use.

However…do not assume that freedom to do something is freedom from repercussions. Just because you are free to publish something does not mean that you necessarily should. You are still subject to charges of libel, as well as subject to criticism yourself; it that criticism is good OR bad, then so be it. Also, if you've decided to target someone or something, that someone or something is well within its right to target you.

So go ahead and make fun of whatever strikes your fancy. This does not mean, however, that you are immune to being made fun of yourself, being sued, or other potential issues.

Transformative Works

Some works are labeled "transformative"; the idea is that the person taking an established work does something that somehow adds value to original work, either adding new meaning or insight, or otherwise modifying to the degree that it is an entirely new work. The key here is that work needs to have new value; if it has the same intrinsic value and doesn't really add anything new then it's infringement.

Consider the Leslie Nielsen version of the "Naked Demi" picture versus the "Harry Potter Encyclopedia": The Leslie Nielsen version made fun of the original picture; that changed the meaning of the original picture by parodying it. Conversely, the "Harry Potter Encyclopedia" ended up quoting so much from the books that while it did collect and clarify the Potterverse it added nothing new to the material it collected, and as such was ruled "non-transformative".

[Quick Aside: There are four factors to determine if a work is protected by Fair Use: nature of the work, purpose and character, amount used, and competition. We've talked somewhat about the nature of the work and the purpose and character aspects, and touched on the amount used. One other aspect is whether or not the new work poses as competition; keep that in mind as that will come up in a bit.]

Parody Characters

Tired of the legalese? Fine: Sometimes you will want to include characters that poke a little fun at other characters; for example, how Deadpool makes fun of Deathstroke. As long as you are poking fun at the character in question you should be fine; it's when you start getting into satire that there is a problem. As such, keep in mind that if you an obvious version of Clark Kent rushing to the telephone booth, you need to make fun of Kent's propensity to change in public and maybe secret identities in general, but maybe using to make fun of Fox News may be taking it a bit too far.

Similar Characters

Any comics fan knows that there are a lot of similar characters (it seems like everyone has their version of Superman, for example). The key here is that you can't copyright an idea; everyone is allowed to take a recipe, put their stamp on it, and claim the end product as theirs. Thus, you can build powerful flying brick with some sort of beam weapon and sensory abilities. However, I would advise not straying to closely to the original model; you need to put your own spin on the recipe to avoid a court case.

Homage

A homage is simply when you show respect to those that came before by creating a character or similar situation to the character or situation you want to respect. I'd love to say that these are in a gray area, but the reality is that it's pretty black and white: The problem is that for a homage to work the audience needs to not only get it and they can only get it if you're pretty blatant about it. However, if you're too blatant about it then the people you're trying to homage will come after you. And if you do it wrong, so that it comes off as pretentious and lazy, or worse, then it everyone will come after you.

So if you're doing a homage, make absolutely sure that everyone gets it and make sure that you're respectful, or it could cost you on a number of levels.

Easter Eggs

These are those little itty-bitty touches that you put in hoping that some people catch them and that others miss them, or are at least giving it a blind eye. Everything that applies in the past sections apply here as well, but you should try more for parody than for homage. This means also that you should try to theme your parodies, such as only referencing insects or cars, or making other items resemble other things that do fit the theme (you're doing dogs, so doing Star Wars characters as dogs could work, especially if you make Chewbacca human).

The key is to have some fun, keep it light, and fit your theme, and you should be okay.

Caricatures

Sometimes you will use caricatures (exaggerated visuals based on real people or characters) in order to make a point. Comics have a long history of using caricatures, and that history probably stretches back to the beginning of history. The problem is that people are very protective of their likenesses, especially how it is perceived. As such, they will be looking at how they are portrayed in media very carefully, especially if they have the money to protect that image.

Admittedly, suing for defamation is a little harder for celebrities, but that won't stop them from doing so, especially if the image is especially insulting. As such, using a likeness may generally fall under fair use, but don't abuse that too much.

Public Domain Characters

This is a weird one: In some cases a character may be made specifically so that anyone can use it or it may have fallen between the cracks and somehow become public domain. In some cases the actual copyright may have run out on the character. As such these characters can be used by anyone without much fear. However, make sure that you do your due diligence and confirm that the character can be used.

Two things to keep in mind: Only some aspects of a character may be in the public domain, and a company may be have their version of that character copyrighted. Both of these situations need to be allowed for when you decide to use the character.

Infringement

Not all uses of a character will pass the Fair Use test. As noted above, there are four different criteria used to determine if you are using the property under Fair Use (the use of "property" needs to be noted; the character belongs to someone, or did, and you need to make sure that you are not infringing on their rights). These are the nature of the work purpose and character of the use, how much you are using, and how much competition your use represents.

Most of those have already been discussed; now it is the "competition" aspect that needs to be discussed. A lot of people think there is some gray area here; these people are idiots. Generally speaking, if you are using a character in the same industry as the company with intent to profit from the property, you are infringing on their rights and they are well within their rights to shut you down. While there are some legitimate reasons to believe that they won't come down on you (such as bad PR and you are doing some marketing for them), these are not legal reasons and can not help you if the legitimate rights holder decides to sue you.

In essence, you need to realize that just because someone allows you to do something it doesn't mean that you can't reverse the decision whenever they want. Barring an actual contract, of course.

Fan Fiction

The legality of your fan fiction is going to depend on it passing the Fair Use. However, be advised that you're going to have to show that the work is a transformative one; that is, you're going to need to show that your work actually does add value: You need to show that you're parodying, critiquing, or otherwise adding to the work in question and you need to do so without it seeming to be a post hoc rationalization ("Of course, I was parodying it all along!"). Again: Just because you can do it doesn't make it legal.

Likenesses

Now we're starting to get into trademark law, which is a different kettle of fish. The major difference between the two, for our purposes, is that trademarks need to be enforced in order for the rights holder to keep their rights. That is, if I've trademarked AlfaWolf99 and someone starts putting out AlfaWolf99 toys and I don't at least try to shut him down, I could actually lose those rights and I can only use my copyright (trademarks and copyrights do not need to be exclusive).

Even if a person has not trademarked their likeness, this sort of defensiveness permeates a lot of the reason that some people will go after anyone using their likeness. Interestingly, a lot of case law tends to support this: As a person's face is the basis of a lot of a person's ability to do business, if you start using someone's likeness for something, especially for something to which they are opposed, expect a court case. And Heaven help you if you are using something that has been actually trademarked.

Convention Issues

This is pretty much the ultimate area where people think there is lots of gray, but really there isn't. One quick note and we're off: This applies to any sort of product where someone is attempting to make money from someone else' property, from those Peeing Calvin stickers to online POD shops to cover songs; it's just something that people associate with conventions the most.

Going back to the Fair Use test, the problem is that there is no question that a person is attempting to make money from somebody else' copyright and/or trademark, and is doing so in the same industry as that entity. Unless they can actually justify parody, that doesn't fall under Fair Use. Even if it does, the person can hit the person with a trademark cease and desist letter; again, they need to defend their trademark or it goes away. So while you may be able to get away with it, that does not make it legal. Some companies don't mind the extra marketing and can justify you not being a threat; others will go into attack mode with even the whiff of an copyright violation.

Either way, if you end up making any kind of decent money, they will demand their cut before shutting you down. It just makes better business sense that if you have the talent to copy someone else' product, you may be better off trying to do it with your own product. You know, one you own the rights to.

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Obviously, this can be a contentious issue. This is part of the problem with being an artist: You need to challenge the limits that have been put on you, but should you offend someone too much they can sue. If you take nothing else away from this, that is something that you need to remember: Anyone can sue anyone for any reason. While the judge may dismiss the case, you never know what will happen until you actually go to court. So will you should be unafraid to create fearlessly, be wary at all times that what you create may infringe on the rights of someone else, and some protect their rights like a mama bear protecting her cubs.