Ban Pop Art!

The law team at DC Comics is hassling art dealer Kathleen Cullen because she showed a series of "gay Batman" watercolors by the New York painter Mark Chamberlain. DC wants to take away the unsold pictures, and it wants invoices for the pieces that were already sold, presumably so it can track those down and collect them as well. I can't improve on Carrie McLaren's comment: "I hope she told them to make their own gay Batman watercolors."

Serious question: If the culture industry had been as obsessed with purported copyright and trademark violations four decades ago as it is today, what would have become of pop art? I have a hard time imagining Roy Lichtenstein producing his oeuvre in today's legal environment.

Comments

[fluffy]

Isn't this fair use parody?

[Warren]

Reason no. 423 to do away with copyright.

[Jeff A. Taylor]

Reminds me of the old Lenny Bruce Lone Ranger bit.

http://www.law.umkc.edu/faculty/projects/ftrials/bruce/brucemonologues.html

Batman's a fag. Bet you got mascara under that damn mask ain't you?

[Jesse Walker]

It's absolutely a case of fair use, Fluffy. But companies like D.C. love to fire off cease-and-desist letters that wouldn't stand a chance of holding up in court. The cost of counsel, the hassle of a legal fight, or sheer ignorance of the law is enough to make a lot of folks fold, even though they'd surely prevail before a judge.

(If I could introduce a loser-pays rule to just one area of the judicial system, it would be intellectual property suits.)

[Jeff]

One used to find Kirk/Spock erotica charcoal sketches and engravings at SF conventions with frightening regularity.

Here's some pop art featuring MST3K characters
http://www.mst3k-fic.com/g.html

[Jeff]

And we musn't forget Alex Ross' magnificent Ambiguously Gay Duo painting:
http://www.alexrossart.com/rossreport/oct2001/duo.html

[fulloflove]

Batman's gay? When I saw Christian Bale as Batman, I thought he was god. Oh brother... my world is ending.

[mediageek]

The cost of counsel, the hassle of a legal fight, or sheer ignorance of the law is enough to make a lot of folks fold, even though they'd surely prevail before a judge.

I've heard that the reason they do this is so that if a legitimate case of copyright infringement ever does come along, the judge can't dismiss it because of a lack of defending the copyright in previous instances, even if these weren't really copyright infringement.

Always seemed like a lame argument to me, but there you go.

Oh, and I give this thread about ten minutes before Julian shows up and posts a link to "Spiderman Makes You Gay."

[Jesse Walker]

I've heard that the reason they do this is so that if a legitimate case of copyright infringement ever does come along, the judge can't dismiss it because of a lack of defending the copyright in previous instances, even if these weren't really copyright infringement.

You're confusing trademarks (which need to be defended to be maintained) with copyrights (which don't).

Not that there aren't a lot of foolish trademark suits out there. Some people are claiming marks in things that shouldn't be trademarkable in the first place.

[Shannon Love]

Jesse Walker,

The legal distinction between trademark and copyright in the matter of franchises such as comic book characters has grown rather blurred in the legal system. After all, "Batman" has an existence separate from any of the tens of thousands of copyrighted stories he has appeared in within many different mediums. If somebody has the inherent right to use the Batman character in their own otherwise original work why couldn't they eventually just crank out their own Batman comic?

I think it highly likely that DC is playing cautious here and treating the character as a trademark. It will help them in the future if somebody tries to argue they let Batman as a generic character slip into the public domain. Traditional legal distinctions that allow the use of characters in parody or satire might protect IP owners but the trend of the courts in recent years is to erode such protections. If I was in DC shoes I wouldn't want to bet the farm on it.

[Julian Sanchez]

Don't be silly mediageek. I'm going to post a link to this.

[Jeff]

Here's a story on gay comic book heroes:
http://www.gaycitynews.com/gcn31/twodimensional.html

[Anon]

Well, let the Lichtenstein litigation begin...

Anon

[Jesse Walker]

Shannon: I don't think there's a legitimate trademark claim here. The possibility of consumer confusion -- of someone thinking the paintings were actually produced by DC comics -- is just about nil. And again, parody has traditionally been protected.

That said, you raise an interesting point when you argue that, since "the trend of the courts in recent years is to erode such protections," DC might not want to gamble on whether this will undermine their trademarks. It would be a peculiar outcome indeed if the ongoing encroachment on fair use rights, which has been driven by the big content companies, were to end up undermining their trademarks by blurring those traditional distinctions. (Some might even call that poetic justice, but the long-term effects would be even worse for free speech, so I won't root for it.)

[drf]

oh shit, Julian. the "Giant Sized Man Thing" was hilarious.

Shannon - methinketh your posts resemble GG's...

If anybody remembers the 70s series "the Persuadors", there were definitley homoerotic undertones between Roger Moore and Tony Curtis. Actually, "hit you over the head with a hammer" fits better.

[Jeff]

Other gay batlore: There's an episode of Batman Beyond where Terry took Bruce to Batman: The Musical. As the cast sings a chorus of "A Superstitious Cowardly Lot" Bruce looks at Terry and says "You hate me, don't you?"

There was also a Mad TV skit where Tommy Tune and Ben Vereen star in a Batman musical, thrusting their hips during a rendition of "Down the Batpole."

And if anyone's gay in the Batman family, it's Alfred, although Bat-Mite certainly leans that way.

[Jesse Walker]

Didn't The New Republic run a homoerotic Batman-Robin cover at some point in the '90s?

No, seriously. I think they did.

[dpotts]

Reason no. 423 to do away with copyright.

I've said it before and I will say it again, people make no sense when they vigorously defend property rights, but only when it comes to tangible things like real estate, or resources. When it comes to the products of someone else's labor that are more intangible, like words or ideas, do you really believe in a free-for-all? Just because DC comics and their attorneys, or Metallica and theirs, or whoever don't understand the concept of fair use, that really isn't a valid reason to trash the concept of intellectual property rights altogether.

[Julian Sanchez]

Yeah, I've seen the cover yr talking about.

[smacky]

Julian, thanks for that link.

drf, You're finally now realizing that Gary is Shannon Love? I knew this months ago, when Gary and "Shannon" were arguing "back and forth" and other commenters were telling them to get a room.

[Herman]

Didn't The New Republic run a homoerotic Batman-Robin cover at some point in the '90s?
I remember the cover but not the magazine. TNR is a good guess. I doubt Ma Jones would do something so pop-culturey.

[mediageek]

Jesse-

Now you know why I'm not a lawyer.

In the same vein as Julian's link, Maddox had a similar, though less extensive and somewhat less funny example of the same here.

[Not an H&R Regular]

In the same vein as Julian's link,

Hee hee...you said "vein"!

...and "link"!

Hee hee...

[Jeff]

Mediageek, that link is worth it if solely for the use of the phrase "untamed monkey love."

[Seamus]

"When it comes to the products of someone else's labor that are more intangible, like words or ideas, do you really believe in a free-for-all? Just because DC comics and their attorneys, or Metallica and theirs, or whoever don't understand the concept of fair use, that really isn't a valid reason to trash the concept of intellectual property rights altogether."

But intellectual property isn't property at all, except in an analogous sense; rather, it's a license from the state. There is no "natural right" to be the exclusive publisher of a particular work. The state created that right, and the state could take it away. (Of course, if you're a legal positivist, you believe that all rights, or at least all property rights, are creations of the state. I really have nothing to say to such a position.)

And while I'm at it, it's at best a metaphor to say that the government "owns" the airwaves. Again, the government simply grants a limited, and revocable, license for their use.

[ChicagoTom]

it's at best a metaphor to say that the government "owns" the airwaves

Not to quibble but,
I've always known the theory to be that the PUBLIC owns the airwaves. The government just manages and protects them for us.

[Seamus]

ChicagoTom:

Whatever.

[Fred]

How is it "fair use"?

Do what you want - i don't care - but don't kid yourself: Batman and Robin are copyrighted material.

[Eion]

"How is it "fair use"?
If some use of copyrighted material is a parody, it cuts toward that use being fair (see, e.g., the 2 Live Crew case).

I'd be surprised if DC Comics didn't drop this - their legal people seem like pretty reasonable non-rabid types.

[mediageek]

How is it "fair use"?

clicky-clicky

[mediageek]

Jeff, as far as "untamed monkey love" goes, is there really any other kind?

[Jeff]

I really don't think this is meant as parody. Like the Kirk/Spock drawings I mentioned earlier, or the fanboys who take pictures of nude models and Photoshop them so they're in Superhero costumes (yes, it happens a LOT), I think it could described as an erotic fantasy. Drawing the duo nude isn't really ridiculing or getting humor out of the subject matter. That would require the Boy Wonder bent over the hood of the Batmobile...

[mediageek]

I suppose, then, you'd have to ask the artist what he's trying to accomplish. Are his paintings meant to be a serious indulgence in roleplaying/superhero fetishism?

Or, much like Julian's link to Superdickery, is he just taking the concept of double entenders and unintentional innuendos and making them well, neither double nor unintentional for the sake of parody?

[Xboy]

Innuendo...heh heh.

[Eion]

"I really don't think this is meant as parody."
(see, I got my italic tags right this time!)

I'd argue that it's mocking (and commenting on) the clean-cut, square jawed, all-American and really pretty innocent image of Batman and Robin (think the '60s Burt Ward/Adam West version). Under Campbell v. Acuff-Rose, this seems like a pretty easy case.

[Peter Bagge]

In my personal experience in working with DC, I've noticed that their in-house legal department spends most of its efforts inventing reasons for its own expansion or mere existance, in that they routinely invent problems and issues that otherwise aren't problems or issues at all. There is no "copyright grey area" in the story Jesse recounted. At every comic convention dozens of artists are making and selling drawings of Batman on demand, often right under DC's noses. DC doesn't care and never did. They're legal team is simply feeling under-utilized again, apparently.

DC's lawyers have also become their de-facto censors, by routinely telling the editors, writers and artists what they can or cannot say just in case someone MIGHT object to it...

Here's my favorite DC Lawyers story: They once told the editor of a "Space Ghost" comic that they'd sue if Batman made a cameo in one of their issues, even though DC also publishes Space Ghost! Yet the lawyers refused to back down, even after the editor pointed out that they were threatening to sue themselves.

[jw]

"I'd argue that it's mocking (and commenting on) the clean cut, square jawed, all-American and really pretty innocent image of Batman and Robin..."

I'd argue that it's hatred of the good for being the good.

[Danimaux]

Seamus:

Of course, if you're a legal positivist, you believe that all rights, or at least all property rights, are creations of the state. I really have nothing to say to such a position.

All property rights are creations of the state. This makes them unique among our rights and explains why the Bill of Rights only provides for just compensation when the government exercises its eminent domain (i.e., rescinds what it has granted). Legal positivism has nothing to do with it -- personally I prefer negative rights -- but it is what it is. Not so much a "position" as an "acknowledgement."

[jw]

No where in the Constitution, as I read it, is there anything that could be construed as the creation or even granting of property rights or any other kind of rights. There is, however, the recognition and protection of various rights.

Everything I have ever read about the Founding Fathers' thinking on the subject indicates that they were of the opinion that The State neither creates nor grants rights. Actually that is reflected in the very careful wording of the Constitution(wording that the convention delegates argued over for days on end.) Rather, I believe that they were of the mind that we are endowed with rights by our Creator. Property rights would be a logical extension of the right to life.

[Danimaux]

Legal doctrines pre-dating the Constitution, such as the public trust doctrine, and Supreme Court precedents concerning Indian treaty rights pre-empting citizen's property rights, give support to the idea that property rights are derived from the sovereign. The government may therefore define the limits of the property right, e.g., how much of your tidal lands you actually own, etc.

Once granted, however, the right is protected by the Constitution from uncompensated takings. But the gubmint may take property. Think about it: can the gubmint, in its infinite wisdom, strip you of your right to free speech, so long as it pays you a fair price for it? There is a difference, because property is the one positive right. Whether or not it is "granted" by the constitution, the property right has in practice been treated as one that derived from the sovereign since long before anyone came up with "legal positivism," which I find repugnant.

But I am open to the possibility that I was woefully misled by pinko law professors. It's happened before.

[jw]

Danimaux,
Actually, property rights as well as all our other rights seem to be treated still as being derived from "the sovereign." The sovereign these days being the People or the federal government.
Your remark about pinko law professors reminds me of the Old Left(new?) assertion that property is theft. Said assertion ignores the fact that the concept of property rights or lawful ownership is necessary and implicit in the concept of theft.
By the way, if the name Danimaux is French, you are not allowed to post at this site.

[jw]

My last comment above was meant in jest; just in case anyone took it otherwise. 🙂