Copyright Infringement for painting?

Asked about 3 years ago - Fishers, IN

I made a small canvas wall hanging for my niece's room. The image is of a cartoon character on Nick Jr. I printed a coloring page off their craft/activity tab of their website and traced it onto the canvas and painted it. I've showed it to a few people who now want to buy one but I'm not sure if this is possible? If I am sticking to these coloring pages and just painting them without alteration, is that still copyright infringement? A few people have told me that using materials available to the public poses a grey area. For example, I see many people using the iron-on transfers from the website and selling t-shirts. I'm just not sure what's allowed.

Attorney answers (5)

  1. Paul Overhauser

    Contributor Level 5

    Answered . It is good that you've identified this issue early, before it turns into a problem.

    It is most likely that the character is subject to copyright protection. However, there is a slight chance that the copyright has expired. For example, the copyright in the original "Mickey Mouse" character has expired. It is also possible that the website owner uses license terms that expressly authorize the type of use you contemplate, although that seems unlikely to me.

    A practical solution may be to email the website, explain what you'd like to do, and ask for their permission. They may grant you permission, although they may also expect a royalty on sales that you make.

    Paul Overhauser
    317 891-1500
    www.overhauser.com

  2. Paul Overhauser

    Contributor Level 5

    Answered . It is good that you've identified this issue early, before it turns into a problem.

    It is most likely that the character is subject to copyright protection. However, there is a slight chance that the copyright has expired. For example, the copyright in the original "Mickey Mouse" character has expired. It is also possible that the website owner uses license terms that expressly authorize the type of use you contemplate, although that seems unlikely to me.

    A practical solution may be to email the website, explain what you'd like to do, and ask for their permission. They may grant you permission, although they may also expect a royalty on sales that you make.

    Paul Overhauser
    317 891-1500
    www.overhauser.com

  3. Maurice N Ross

    Pro

    Contributor Level 20

    Answered . This is not a grey area. You cannot do this legally unless you obtain a license from the owner of the IP rights in the cartoon character---copyright and trademark. You are preparing what is known as a "derivative work"---a work that builds upon a work that was created by someone else. The only way you can do this legally is by obtaining permission from the owners of the IP rights in the character.

    Since you are using a coloring page from the craft/activity tab of a web-site, it is at least possible that the owner of the copyrights/trademarks in the characters have already granted you a license to use the character for purposes of arts and crafts projects. But the terms of use probably restrict this license to non-commercial/personal use. It would be worthwhile to retain counsel to carefully review the terms of use to determine precise what rights you may have already been granted to use the cartoon character--but chances are the terms of use prohibit you from using the character for purposes of preparing products for commercial sale.

    This is not a grey area. You need a license or else you cannot use the character. The fact that you see people using iron-on transfers to make and sell T-shirts does not make it right. Unless the Terms of Use give people the right to use the iron-on transfers to make and sell T-shirts, the people who do this are engaging in illegal activity. The fact that a lot of people engaging in infringing activity does not make it right.

  4. Pamela Koslyn

    Contributor Level 20

    Answered . Cartoon characters are protected by copyright, trademark, and state unfair competition law, and sinec this IP is owned by someone else, there's no way for you start making and selling products using this character. If you're geting advice from anyone who's not an IP lawyer, stop listening to it.

    Many other shave asked this question, just search Avvo for "characters" and "infringe."

    I'm only licensed in CA. Please note that this answer does not constitute legal advice, and should not be relied... more
  5. Vincent T Lyon

    Contributor Level 11

    Answered . Mr. Ross had the best answer - it depends on the terms of the license on the website.
    For example, a picture in a coloring book is a drawing protected by copyright. Coloring it in is creating a derivative work - theoretically an infringement of copyright.
    However, coloring in is precisely the nature of a coloring book, so you have an implied license to use the picture for its intended purpose of making a derivative work by coloring it in.

    Now do you have a right to make a painting from a picture online? In this case it sounds as though the picture was intended to be printed out and colored. If you choose to color it in oils instead of crayon, that's your business.
    But if you are transferring it to a medium other than paper, you may be overstepping the bonds.
    Assuming you have a license to print it on any medium and color it, then I doubt copyright would prevent you from selling your work based on the first sale doctrine. However, as Mr. Ross pointed out, the license to color, if express instead of implied, may have restrictions.

    I also wanted to post a correction for Mr. Overhauser:
    Mickey Mouse is still protected by copyright. Currently the copyright on Mickey Mouse is scheduled to expire in 2023. Mickey Mouse is also a registered trademark though, and trademarks never expire as long as they are being used, so trademark law still applies.

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