Each month in 2022, PeachtreeESQ.com (with the help of The Law Office of Trey Ross, PC) will collaborate with a business, influencer, or citizen in Georgia and publish an article involving a legal question which the person’s followers may find interesting.
This month, our spotlight is on professional artist and illustrator, Marcus Williams. Marcus is the Co-Creator of Tuskegee Heirs and he’s a true innovator in the art community. In addition, Marcus has received international attention for his parodic works involving various comic book characters.
Learn more about Marcus and his amazing work by visiting his website: https://marcusthevisual.tumblr.com/. You can also follow Marcus on Facebook at https://www.facebook.com/marcus.williams.5439 or on Instagram at https://www.instagram.com/marcusthevisual/?hl=en
How can I draw and sell comic book characters which were created by others?
Question: I’m an illustrator and I love creating fan art of popular comic book characters. I’d like to start selling my work online and at comic book conventions. How can I draw and sell comic book characters which were created by others?
Brief Answer: There are several ways to legally draw and sell characters which are not yours. The obvious way is to obtain the copyright owner’s permission via a license agreement which gives you a right use or create “derivative works” (i.e., works which copy or borrow from the original in some way).
However, there are also legal options which don’t require permission, licenses, or payment to the copyright owner. For example, a free option is to create a clearly parodic work (i.e., “a parody”).
By creating a new, transformative work which is clearly understood to be a parody of the original work—and offers some type of critique or criticism of the original work—your use of the character can be permitted by the “fair use” doctrine.
Still, it is important to note that relying on the parody defense is generally going to be a gamble. The reason: If your new work is challenged by the copyright owner of the original work, a federal court will likely need to determine whether your parody is indeed a parody for the purpose of the fair use doctrine. Every case is different. Moreover, both the US Congress and the federal courts have stressed the importance of avoiding a “bright-line rule” on what constitutes a permissible parody.
However, do not be dismayed. The law does give us some guidance on what the courts will consider a permissible parody. To learn more about what the courts will consider a permissible parody, review the full article below.
I. WHAT IS THE FAIR USE DOCTRINE?
You probably remember being a student in school and your teacher gave you a photocopy of a passage from a book and then proceeded to teach about the passage. Likewise, if you were around in the 1980s, you may remember each time the recording artist Michael Jackson released a new video, an alternative version of the video was release by a strange guy named “Weird Al” Yankovic. Both these are examples of “fair use” which are by law, not copyright infringement (i.e., they are not infringing uses).
Pursuant to 17 U.S.C. § 107, “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
As guidance on what is permitted by the fair use doctrine, the Copyright Act of 1976 provides four factors which the courts—as well as artists like yourself—can rely on and those factors are as follows:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
II. THE FOUR FACTORS IN THE CONTEXT OF A PARODY DETERMINATION
The above-mentioned four factors don’t mean much without examples and the court’s interpretation. One of the leading cases which examines—and gives important guidance on—the above-mentioned factors is a famous U.S. Supreme Court case from the 1990s.
The case is Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). This case involved a famous (or infamous) rap group known as “2 Live Crew” and their producer, Luther Campbell (also known as “Uncle Luke,” “Luke Skywalker,” or simply “Luke”). In Campbell, the rap group’s song “Pretty Woman” was accused of copyright infringement of Roy Orbison’s rock song “Oh, Pretty Woman.”
The rap group claimed that their version of the song was a parody. The original song, “Oh Pretty Woman,” centered around a somewhat humble man’s adoration and praise of woman he’d seen public. On the hand, the rap group’s song “Pretty Woman” could be seen as a critique of the original: The rap version featured part of the original melody but the lyrics were mostly from the prospective of a male chauvinist who disparaged various women. Here’s another way to look at it: Both versions depict a hegemonic relationship between men and women. However, the original version gives women the upper-hand and ends with what may be an act of mercy by a woman, while the rapper’s parodic version involves men being toxic and abusive to women.
Either way, the Supreme Court agreed that the rap group’s version was a parody and explained how each of the above-mentioned factors are to be applied. The information below is a summation of the guidance we’ve obtained from Campbell.
a. Factor #1: “the purpose and character of the use”
Regarding this factor, three things the court is concerned about are (1) whether the new work is “transformative,” (2) whether the new work offers some type of critique of the original work,  and (3) whether the new work will be reasonably perceived as a parody.
When considering if the work is transformative, you might want to ask yourself “Have I used the original work to make something altogether new?” The more transformative the new work is, the better your chances will be of successfully proving that it’s a parody for the purpose of the fair use defense.
Also, when using the fair use doctrine, a parody requires that you somehow comment on the original author’s work. For example, one of the things illustrator Marcus Williams is well known for is his “Swaptober” series. During October, Marcus “swaps” the gender (and often times the ethnicity) of a well-known comic book character. Marcus also takes the opportunity to illustrate the new character in a way which makes the new character eye-catchingly attractive in contrast to the original which may be conservatively illustrated and/or bland. This type of “swap” may be a critique of everything from traditional gender roles, to race, to body image, or as a challenge to conservative views on dress and appearance.
It is important to remember that if the new work is not somehow critical of the original author’s work, “use isn’t fair” and other factors become more important. When there is no critique, you can lose your right to call your work a parody.
Lastly, the work must be reasonably perceived to be a parody. However, neither the quality, the brilliance, nor one’s taste for the parody’s commentary is relevant to fair use determinations. For example, you may think 2 Live Crew’s version of “Oh Pretty Woman” is total trash but that’s irrelevant to the court’s determination as to whether it’s a permissible parody.
b. Factor #2: “the nature of the copy-righted work
This factor requires courts to consider whether the original work was something the copyright law was meant to protect. For example, our copyright laws are meant to protect “creative works.” Creative works differ from works which are simply the compilation of factual events (e.g., news stories), ideas or methods of operation which are generally not protected by our copyright laws.
Also, since this article is focused on the drawing of comic book characters, it’s probably a good idea to assume that the illustration you’d like to use is something the copyright laws were meant to protect.
c. Factor #3: “the amount and substantiality of the portion used in relation to the copyrighted work as a whole…”
In regards to this factor, the courts will examine how much of the original work has been copied. For example, did a person simply photocopy the original work and place the pirated copy on the market and thereby make it a market substitute of the original work? That type of copy is not likely going be considered a “fair use”—it clearly wouldn’t be a parody.
Still, the court has no hard-and-fast rule on how much can be permissibly copied; the quantity of the copying will vary depending on the purpose and character of the use.
In addition, this factor is tied to the fourth factor since the court will have to examine “the degree to which the parody may serve as a market substitute for the original [work] or potentially licensed derivatives.” 
d. Factor #4: “the effect of the use upon the potential market for or value of the copyrighted work…”
This factor does not really matter if the work is a parody which is transformative of the original work.
Although criticisms within the parody may destroy the market for the original work (e.g., people may lose interest in the original work after viewing your parodic work), the parody itself has a different market function than the original work and doesn’t displace demand for the original work in a prohibited way. For example, selling a parody is not the same as photocopying an illustration and selling the bootleg version.
To be clear, suppressing demand through criticism/parody is not a copyright violation but usurping demand by simply supplanting infringing copies into the market is a violation of our copyright laws.
While copyright laws give an artist a right to control who “makes copies” of her work, it doesn’t prohibit other artists from offering critiques of the work. Such critiques can be protected by the fair doctrine if they are legitimate parodies of the original work. There is no bright-line rule on what constitutes a fair use. However, the court will examine four factors when deciding if a new work is indeed a parodic work and thereby considered a “fair use” of the original work.
NOTE: If you need assistance drafting a contract, will, or other legal document, consider using PeachtreeESQ.com; it’s a Georgia-focused legal technology company powered by real lawyers licensed in our state.
Also, if your legal needs are complicated, feel free to contact an attorney at The Law Office of Trey Ross, PC. The firm’s web address is www.treyrosslaw.com and they are based in the Atlanta metropolitan area.
 17 U.S.C. § 107 (2021) (providing “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
 510 U.S. 569.
 In 1997, a case in the 9th Circuit provided that a work wasn’t a parody when there was no clear ridicule of the story or style of the original work. Dr. Seuss Enters., L.P. v Penguin Books USA Inc., 109 F.3d 1394 (9th Cir. 1997) (providing that the new work was simply a retelling of the O.J. Simpson story and was not a critique of Dr. Seuss’ “The Cat in the Hat”).
 However, although you cannot copyright facts, ideas, systems, or methods of operation, you may have some rights to the order and way in which you have arranged the facts into a publication such as a film, journal, or book. In some instances, the order in which you assemble facts can be a form of creative expression. See e.g., Feist Publications, Inc v. Rural Telephone Service Company, Inc, 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)(providing that copyright does protect “facts [which] have been ‘selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship’”).
 510 U.S. 569.
 Campbell, 510 U.S. at 597.
 Campbell, 510 U.S. at 591-592 (providing that even if the critiques “kills demand for the original, it does not produce a harm cognizable under the Copyright Act).