

Help: Likeness used in comic - thegoleffect
http://artisdifficult.wordpress.com/2010/06/21/berserker-barrage/

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ramanujan
It boggles my mind that you are even considering a lawsuit over this. First,
adaptations, tracings, and parodies are almost certainly fair use. Second, it
is completely unreasonable and counterproductive for you to be "angry". Email
the graphic artist and get a beer with him, you two seem to be mutual fans.

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pbhjpbhj
>First, adaptations, tracings, and parodies are almost certainly fair use.

Parody can be fair use (<http://www.law.cornell.edu/uscode/17/107.html>;
caution annoying interstitial) and protected internationally I gather but is
not always. The original costume probably could pass as a parody (or be deemed
personal use) and so be fair use whilst this comic-book image doesn't look
parodical it's just a commercially used derivative in a different media.

Adaptations of other's work (that use a "substantial part") are not allowed
without permission of the original creator.

Tracings? You think it's OK to duplicate someone else's copyright work as long
as you trace it? That's almost the definition of a slavish copy - like
considering copy-pasting the binary presentation of an MP3 to circumvent the
creators rights.

Marvel are presumably distributing this internationally? Remember that fair
use is a lot narrower in some non-USA jurisdictions.

Lastly, is the owner of the convention photo copyright sure that this is a
copy of his image. Presumably others could have taken pictures of this guy at
the same time?

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scotty79
I think that's the trouble with the intellectual property rights today.

You feel happy and thrilled that someone used something yours in something
good, but you are afraid that you are sucker for feeling that because course
of action that is touted as moral and right is to sue their asses.

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iaskwhy
Can't you just be happy about it? I would...

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mcknz
He's just looking for advice -- copying is copying and the guy has a right to
feel more than one way about it. It's the action that matters.

That said, I would look definitely look at this as an opportunity to make
contacts, get work, etc.

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achew22
It is obvious that you care about the series. Contact the publisher and let
them make the first move. If they want to be jerks about it then be jerks back
but at least give them the chance to make it right.

As a side note, you countered their rip off by taking a whole page out of
their book and putting it on your website. Just saying.

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jmtulloss
I'm pretty sure excerpts are considered fair use.

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_delirium
True, but it's also possible that the comic's reference, as a small part of
the total work, to a fan image on the internet is also fair use. I guess it
might turn on the extent to which the original image was passed around (which
I don't know at all)--- you have a stronger fair-use argument referencing
things that are part of popular culture, as opposed to, say, randomly taking
something out of a high-school yearbook.

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pbhjpbhj
They used the whole work, a photo.

He's not only using an excerpt of substantially reduced quality but also
reporting and/or critiquing the work. Lastly the work he's critiquing is in
part a derivative of his own work and so the presentation of at least that
derivative [half-page] image could not be a copyright infringement IMO unless
he'd licensed away the right to duplicate it (this would not be true if it was
transformative).

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dtf
Well that's disenchanting. I've always admired the skill and imagination of
comic artists, and now we find out they're just tracing!

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timinman
You probably deserve something for snapping the shot - but if you try to get
something from them, I hope you pass on something to the 'model', after all,
the creativity behind it is his. From legal standpoint - do you have a model
release?

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Tyrannosaurs
As the photo has never been commercially released (and still wouldn't unless
he tried to formally sell it to Marvel) I'm not sure he needs one. Remember
it's not his photo that needs to be published.

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Tyrannosaurs
Man Wolverine has let himself go...

Realistically it's not in your interest to sue them - the upfront costs and
risk of losing would outweigh the likely financial benefit.

That said, I might drop them an e-mail pointing out the similarities,
including the two images, say you're a fan and you're not looking for money
but perhaps ask for a signed copy of the comic or whatever as a thank you.

If they don't get back to you or get all shouty then you let it go and you've
still got a good story to tell. If they do then maybe you get a signed comic
book and a good story to tell.

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lionhearted
Wait a second - you're dressed up as Wolverine, which is a mark owned by
Marvel:

<http://weeklyrot.files.wordpress.com/2009/04/wolverine14.jpg>

They do something cool and put you-dressed-as-Wolverine in a comic book, which
doesn't make them any money or cost you any money in any way, shape, or form.
There's no damages. And it's something pretty cool you can show your friends.

And your inclination is to... sue them?

Strange world.

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Hagelin
I thought this too and upvoted you accordingly, but as I read the other
comments and reread the post I realized they didn't actually put _him_ in the
comic, they used a photo he took of someone else who was dressed up as
Wolverine.

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StudyAnimal
Where did they see the photo? Did you post it on a site where a CC-like
license can be assumed?

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Robin_Message
IANAL, but I'm pretty sure there is no website in the world where a "CC-like"
license can be assumed. Either you release something under a specific license,
in which case it is obvious, or you have not stated a license, in which case
you definitely retain the copyright and things like, I don't know, _creating
commercial derivative works_ is not allowed!

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DougBTX
Bask in the limelight?

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rameshnid
Guys, I think it's a funny post or is he serious?

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confuzatron
Both.

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sliverstorm
I confess, when I clicked the link I was very skeptical, but that is blatant.
No judge on earth would rule they didn't mimic your photo.

It comes down to what you want to do. Do you want to be a fan (blown-up of the
page) or do you want money (and to tear down the company that makes something
I gather you like)

If it was me, it would hinge on whether I liked the company. I mean, if my
favorite company in the world infringed on me, I would absolutely not sue them
for a billion dollars and destroy something I loved.

edit: if you wanted damages you would have to be able to prove _irrefutably_
that your picture is authentic and predates the comic. And I mean,
irrefutably. If proof of the date it was taken relies upon the date of the
convention for example, you had better be able to prove _without a doubt_ this
picture was taken at the convention.

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jancona
You could wait for the DMCA take down for reproducing their image, and then
initiate a negotiation.

