I want to design trading cards based on an intellectual property that already has an official trading card series. My cards will be purposefully derivative and not include the names of existing characters. The illustrations on the cards will be of existing characters but be purposely stylized and abstract to deliberately appear unofficial, as to avoid any confusion that these are part of the official trading card series. I will sell these to make back the cost spent to print them but I will not profit. I will most likely lose money.
Help is appreciated. Thank you.
Copyright law is a difficult area, and is fraught with land mines. You will need a copyright attorney to review the original work, as well as yours to determine if there is infringement.
In addition to the previous answers, some of the existing characters may be protected under trademark law. Please seek the advice of an IP attorney to review all of your issues.
Unless your work is truly "transformational" it is likely that the cards will infringe the originals. The fact that your use of the original is for commercial purposes rather than commentary or parody will weigh against you in the fair use analysis.
At first blush, what you are describing sounds very problematic from a copyright infringement perspective. We cannot however offer conclusions here over a free and quite public Q&A forum. So before you invest any further, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
Best regards,
Frank
Natoli-Lapin, LLC
I suggest that you invest your energies and creativity elsware, as what you describe is copyright infringement. If you need further advice, I suggest that you also contact an experienced Copyright attorney who can advise you in confidence. Many Copyright/IP firms offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Copyright attorney who can assist you.
These derivative works, in all likelihood, will violate copyright law. It is irrelevant that you will not profit (or that you might lose money). There is no non-profit exception to copyright infringement.
You admit that you are deriving your illustrations from existing characters on existing trading cards. That is almost certainly infringement unless your illustrations are deemed artistically transformational---a transformational work is a work that conveys a fundamentally different impression or meaning when compared to the original work, or is intended to constitute serious commentary on the original work, or is a parody of the original work. It is highly unlikely that your illustrations would be sufficiently transformative to constitute fair use and avoid a copyright law problem.
Further, you may also have an equally serious problem under trademark law. Characters often are protected as trademarks----your use of these characters in your derivative unofficial trading card could be deemed to create consumer confusion insofar as consumers might believe that your unofficial trading cards are somehow officially associated with the original trading card serious, its authors and owners.
Finally, if the characters reflected on these cards are live human, such as athletes or celebrities, your use of their images on your derivative cards might violate their rights of publicity/
Here is the fundamental truth about IP laws: Anyone who tries to take shortcuts by capitalizing on the fame of others, such as famous artists, celebrities, singers, athletes or characters, will almost certainly violate intellectual property laws unless licenses are obtained from the owners of the various relevant IP rights. We reward people who do the hard work of creating valuable, original works of art, music, film, theater, authorship or science with Intellectual property rights---and our system does not look with favor on those who try to piggyback on the hard work of others without paying appropriate license fees.
The U.S. Copyright Act of 1978, as amended, automatically confers a bundle of exclusive rights upon the creator of an original work of authorship. Among them is the exclusive right to create "derivative works" based upon the pre-existing work protected by copyright. The derivative work itself may also be subject to copyright to the extent of its originality beyond the initial, underlying work on which the derivative work is based. Accordingly, under the Act, you cannot create a derivative work based on someone else's protected work without (1) written permission to do so from that person, and if none (2) without risk that your work infringes the copyright of that owner. The legal standard for copyright infringement is the making without authorization a "substantially similar" reproduction of the copyrighted work of another. As mentioned by my colleagues, you should seek the advice of an experienced copyright attorney before proceeding with your plan.
