Legal Question in Intellectual Property in Texas

I'm starting an shirt-selling business with my friend and we wanted to use previously existing anime characters for some of our designs. My legal concerns about this are: a) is it legal to do this without getting direct consent from the creator, b) what changes would we need to make for it to be legal, and c) since it is for profit would we need to give royalties even if the character wasn't copied exactly?

My friend is able to change the positions of characters, so that the positions, at least, would be original, but I don't believe that's enough.

Thank you for your help :)


Asked on 10/01/10, 5:34 pm

1 Answer from Attorneys

Jeffrey Schubert Schubert Law Group PLLC

The copyrights in the created work, ie, the anime characters, arose in the creator at the time of creation. The copyrights include not only the right to prevent others from copying the characters but also to prevent others from creating derivative works. The slightly modified characters that you mention would be derivative works. A derivative work is generally any work you create that is based upon the original character. The only way to get around this is to create a new work that is not based upon these characters. The alternative is to obtain a license or purchase the rights to create the derivative work or to copy the original works from whomever owns these rights. Unless these characters entered the public domain, which would be unusual, the answers are (a) no, (b) create a completely new character, (c) very likely, you will need permission from the owner of the copyrights. Note that the copyright owner's ability to enforce the copyrights is a different issue but assuming the characters are popular, which is why you would want to place them on shirts, the copyright owner can likely enforce the copyrights and likely has an interest in doing so.

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Answered on 10/07/10, 8:30 am


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