Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I'm a sculptor and would like to make reproductions of a bust that I have sculpted, based on a trademarked comic book/movie character, for sale online. I have heard that as long as you produce no more than 99 items that you are allowed to sell these pieces as a "limited artist run" and can thereby avoid any trademark infringement issues.  Is this true?  What recourse do I have if not?  I have seen items that match this description for sale on eBay (for example; a custom sculpture of Spiderman - a licensed Marvel character) and want to make sure that before I do something similar I don't cross any legal firing lines. The short answer to your question is that there is no "99 copies" exception* in trademark or copyright law. (You may be thinking of the 200 copies limitation required to qualify as a "work of visual art." That grants you extra rights as a fine artist but it won't shield you from claims that your work infringes). Making and selling something that's based on someone else's copyright or trademark is most likely an infringement. The Dear Rich Staff believes that seeking permission is probably a waste of time since the movie production company will probably not return your calls. The fact that others are doing something similar on eBay indicates that the people who own the rights for the character are either unaware of these uses or are selectively enforcing rights -- that is they only care about the big fish, not the small ones (You can view eBay's policies, here).  So, although you may cross some "legal firing lines" with your sculpture, it's possible that nobody will shoot at you. 

Dear Rich: I'm working on a graphic novel/comic book. One of the characters will be driving a vehicle of a highly recognizable make and model. Are there legal issues in doing this? If needed, I could alter the car to the point that it's more generic. The short answer is that you're okay using a popular make of automobile in your graphic novel or comic (that's why they call them car-toons) or in most any type of fictional or "editorial" work (remember Stephen King's use of a red Plymouth Fury as the villain in his novel, Christine?). A car manufacturer may battle other manufacturers over the appearance, but those design patent or trade dress rights -- for example, the C-scoop on a Ford Mustang -- are rarely asserted against editorial uses. You may run into a problem if you use the image of the car on the cover of your work, or in the advertising and it creates the impression that the manufacturer is associated with or endorses your work. And you probably shouldn't offer merchandise -- for example, a miniature replica of the car. Of course, the use can also be lucrative if you partner with a car company or get involved in movie and TV product placements. The Dear Rich Staff recommends that if you want to avoid any potential C&D correspondence, use a car that's no longer in production and for which no manufacturer is claiming rights -- like our favorite anthropomorphic characters, Sam & Max (above), and their speedy customized DeSoto. 

Dear Rich: I am a long-time artist, but never serious until now. I took up clay with lost wax in mind, and am now at the point of contacting a foundry to begin the process. What do I need to do and/or know prior to actually sending them any photos? I'm so glad you asked. The short answer to your question is "That depends..." The Dear Rich staff presumes you're concerned about either (1) the foundry ripping off your work, or (2) that the foundry will make some claim of co-authorship. As for being ripped off, as our Dear Rich readers know, you have a copyright in the photos (and any resulting sculpture) without doing anything. You can file a copyright application if you like (we recommend the new Form CO) and that will provide additional rights in the event of an infringement. You could also have the foundry sign an agreement (PDF) not to disclose or reproduce your work. That agreement could also deal with your second issue by having the foundry acknowledge that it acquires no rights in the resulting sculpture (and any rights it does acquire are assigned to you). (This site has helpful information about dealing with foundries.) Our guess is that the foundry is used to artists raising such issues and may even have such an agreement available. If they don't (and the agreement cited above doesn't work), you can put together an informal agreement yourself, or get one from one of Nolo's independent contractor books. All of these suggestions are based on the assumption the foundry is in the U.S. If it's in a foreign nation, you'll have a harder time enforcing agreements and copyright.