A student of mine, knowing of my interest in Info/Law, pointed me to a recent notice that Marvel Comics sent to its artists warning them to avoid excessive copying when working from potentially copyrighted source material for inspiration. The notice is reproduced here.
Marvel is notorious for being grossly overreaching and litigious in relation to its own asserted intellectual property rights (see, for example, here and here), so it is interesting to note the downright avuncular tone of its warning to its own artists to avoid infringement:
There’s been some confusion regarding the use of copyrighted materials in work submitted to Marvel … We know you want to bring an incredible sense of realism to the page and we want to support you. … By working together, we can create a work that is both inspired and unique.
Yet beneath the indulgent rhetoric lies a policy that may be more limiting than necessary (it’s hard to tell). The company’s proposed “rule of thumb” for artists is that if the work for Marvel appears “derivative” of the source material, then “you have gone too far and taken too much.” Of course, the creation of “derivative works” is an exclusive right of the copyright-holder (see 17 U.S.C. 106(2)), but not all works with overlapping elements are “derivative” in this legal sense. A garden-variety postcard photograph of the Empire State Building has a fairly thin copyright, and an artist likely can use it as the basis for a comic book panel featuring the skyscraper in the background.
In the end, Marvel must conduct the same fair use analysis as any other creator. Though there would be some poetic justice if Marvel held itself to the same unduly restrictive rules with which it seeks to bind others, I hope that their editors interpret “derivative” in the appropriate spirit — allowing the sort of borrowing that fair use permits. (And then I hope they tell their lawyers to recognize the same rules for everyone else too!)