Earlier today, I received a comment from a user called JYHASH on the article about The Perils of Fan Comics. The question itself was quite long so I won’t reproduce it all here. For the purposes of this quick post, I’ll reproduce only the key points:
If you’re doing a spoof, isn’t that something that is covered under fair use? What about sprite comics? What if I don’t charge for merchandise, etcetera?
First of all, thanks to JYHash for such thought-provoking questions. This is, unfortunately, not something I can answer in a way that will be 100% accurate for anyone who reads this. In fact, without knowing exactly where you are in the world, it’s hard to give you advice that I can guarantee will be 100% accurate for any particular person. The reason for this is that the question involves both copyright and trademark law; both of which have that wonderful quality of varying from country to country.
Here in the UK, ‘spoofs’ and ‘parody’ do not hold the same weight as a defence as they may (“may” not “will” – I’ll get to that in a second) in the US. Here in the UK, the concept of “fair dealing” (we don’t use the term “fair use”) does not protect parody or satire. Instead, we must look to cases such as Baigent and another v. Random House Group Ltd  EWCA Civ 247 and Designers’ Guild Ltd v. Russell Williams (Textiles) Ltd  to tell us just how far we can go in using something protected by another person’s copyright.
I dealt with this concept in more detail in my article What The Da Vinci Code Tells us About Copyright here on How ‘N About, in essence, a person is liable for copyright infringement (and not “guilty of” it since, despite what those obnoxious “copyright warnings” from FACT and the RAAA would have you, copyright infringement on its own is not a crime) if they reproduce a “substantial part” of another person’s work.
What counts as a “substantial part” is not limited to lifting text, graphics and music from a work but extends also to “how the work is composed” and “the expressions of its themes”. In other words, if you set all your stories on a “Federation Starship”, use Starfleet uniforms and discuss the latest problems with the Romulans, you can expect trouble.
The extent of the trouble you get will come down to one of two things: whether you are damaging the original work, and whether you are damaging the integrity of any trademarks. This is where the issue with regard to Star Trek really gets messy. The Starfleet insignia (the triangle on the original series uniforms, the com badge, etc.) are trademarks of Paramount studios, as are several other aspects of the show and its related media.
There is no “fair use” or “fair dealing” defence when it comes to trademarks, because trade marks are insignia that show you are the owner of the business, property, etc. they relate to. In short: if you don’t have permission to use it, you should not use it. It’s like putting Nike’s “swoosh” logo on clothing you made. Just don’t do it, or be prepared to get a No Holds Barred Beatdown when you get caught. Why? Because a trademark that is not rigorously defended is lost, plain and simple. It’s the reason I can call my vacuum cleaner a “Hoover” even though it’s a Dyson; or the French can call their refrigerators a “frigidaire”. Ever heard of a tannoy system? That used to be a trademark, too.
Copyright is a little different. You don’t have to rigorously defend a copyright because you don’t lose it like that. Copyrights expire after a certain amount of time, they are not perpetual unless lost, like a trademark. So copyright holders can take a more pragmatic view of their properties. Paramount doesn’t sue the arse off anyone who puts up a website about Captain Kirk and generally turns a blind eye to a lot of fan productions because they know these are helping to keep Star Trek alive while there are no new shows. Other copyright holders may take the same view.
It doesn’t mean they have to.
Any copyright holder is well within their rights to send a cease and desist if they don’t want someone using their property without permission. Just as I would be well within my rights to demand that a trespasser leave my house, Paramount can tell the makers of Ensign Sue Must Die! to cease production (unless they have a licence to produce the product – I don’t know if they do or not, but if they don’t, what I’m saying here stands).
The fact that someone is selling work based on a copyrighted property owned by someone else adds extra weight to the demands of the real owner. If you are making money from an endeavour, that will often be evidence enough that the copyright holder is losing out on potential revenue. In short, you just provided all the evidence the copyright holder needs to claim damages against you. Expect a large legal bill if they decide to pursue the matter.
That doesn’t mean giving copyright-infringing material away for free will keep you out of court however. Just because you aren’t making any money doesn’t mean they couldn’t have made any. A decent legal team could, if they were so inclined, still show that you reduced the earning potential for the copyright holder by producing your work for free.
You may be able to play within the realms of parody and thus avoid some or all of the legal ramifications of using someone else’s toys but parody is very limited. Remember that parody pokes fun at the original work. It is not a licence to simply make new “joke” products in and of themselves, based on an original work.