Fair Use for Webcomics

As comic creators, there are do’s and don’ts on how we can handle the usage of copyrighted material in our comics under the name of parody.  The biggest question I get asked is “Do I have to get permission to use another creator’s characters in my comic?”

The short answer is no. Here’s why, and, more importantly, how.

Why is it you can use another comic character, or even TV/movie celebrity in your comic?  Fair use under parody is how.  I hate definitions, but let’s define parody.  A parody exists when one imitates a piece of work, such as literature, music or artwork, for a humorous or satirical effect*. Feel like you’re in school again?  Yeah, me too!  What that says is you’re allowed to use any type of copyrighted material as long as it is in a humorous or satirical manner.  This is how Saturday Night Live can make fun of popular commercials and products.  It also explains parody songs.  The work is protected under Fair Use.

There are specific legal tests** to verify how you are using copyrighted material under parody, and I will link to those references at the end of this article.  I am not a lawyer, so it is good to investigate these links and do a bit of research to ensure what you plan to do is legal or not.

But back to using comic characters in your webcomic.  I recently used another creator’s characters as the gag in a comic.  In the comic, I use the primary characters from the webcomic “Pinkerton”.  I did not get the creator’s permission as I used them in a humorous way… thus legal under fair use.  See the example frame at left.

My next example is I’ve used a copyrighted character from the TV series “Quantum Leap” and did so in a very short storyline where Sam “leaped” into my character Robyn’s body.  As this was done for humorous effect, it fell under Fair Use, even in this case where Sam appeared in three contiguous comics.  So I had the “Quantum Leap” character Sam drop in and solve a problem for my characters.  It was a fairly creative way of ending a situation for my characters.  And it was legal under fair use.

There is a difference between Fair Use and simple stealing.  Making a t-shirt with “Calvin and Hobbes” on it, then selling it for profit is not legal.  Using the characters in your comic is legal if it is done under Fair Use limitations (see the references below **).

Well, you ask, how did someone like Andy Warhol use Marilyn Monroe’s image in a painting and not get sued?  The reason is called appropriation as specifically used in an artistic medium.  And that is the topic for my next article.

* Source: http://www.publaw.com/parody.html

** Source: http://en.wikipedia.org/wiki/Fair_use

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14 Comments

  1. Tread lightly with Fair Use and Copyright infringement, folks. It is something that easily draws the ire of artists everywhere.

    Unless you have the consent of the artist, make damn sure that your parodied work is indeed a parody. I don’t mean to start up with semantics, but a parody is much more than just an imitation for humorous effect.

    If you’re going to parody someone’s work and have it fall under fair use, the parody has to be a humorous commentary on the actions and behaviours or situations that a character or person portrays. Inserting characters and making a funny doesn’t cut it. You have to make sure the parodied characters don’t ‘break character’ and act in a manner that is unlike them for the sake of being funny.

    You can stretch that somewhat, so long as the original intent of the creator isn’t to defame the character or person. Political cartoonists take the most heat for this because they incite responses from their satirical looks at contemporary politicians. The minute these politicians are shown in a negative light and truly out of character, there is a case for libel.

    My suggestion for new people in webcomics for using copyrighted characters is to make a connection with the artist and gain permission via a simple proposal. If that fails, think long and hard about using other people’s intellectual property online and cover your bases. IP law is a whole other can of worms that can supercede Fair Use in the courts.

    Just be careful! Don’t use people’s copyrighted work for monetary gain, and don’t use that work in a negative light and you’ll be fine.

    • Ah, political cartooning is a whole ‘nother ballgame and frankly those cartoonists have a great deal more guts than I.

      But, I was primarily focusing on using other characters in your comic, although briefly, as in my example of Pinkerton.

      Now, I’m certainly not saying *don’t* contact the creator. I would say it would be a good idea as it creates networking. But, popular creators are bombarded with requests and questions and often they are over-looked or simply trashed due to time constraints. Not because they are against your idea, but they just don’t have time to respond to 100’s or 1000’s of emails everyday.

      The simple point here is, you *can* use the characters, if used properly. Your point is to tread lightly on that, and I agree.

  2. I think Mad Magazine did the most involving Fair Use and Parody. They did things that I would think you couldn’t do, yet they did them time and time again. It’s a very tricky line to cross, I used Scott McCloud’s character at the the end of comic I did called 52 Weeks. He was used as the wise old sage that decided the central character did not truly “Understand” comics yet and sent him flying off the mountain. So in effect I was parodying Scott’s position as a webcomics guru. I believe this falls within fair use, but I am not entirely sure.

    • Mad is a FANTASTIC example of how to use things in Fair Use. They had tons of characters in the background of a lot of their parodies. Now, they would change the title of parody on the “Incredible Hulk” to “Incredible Bulk” because titles are handled a lot differently then the actual character itself. I’ve seen eBay referred to as “eBuy” and the like as corporate NAMES are a whole different ballgame and really not covered by the Fair Use law.

      Your usage would qualify as a parody, in my opinion. But, letting Scott know about the usage is a good thing too. Awareness is half the battle in growing a comic and certainly name dropping does not hurt.

      I used Danielle Corsetto’s characters in a comic back in 2008. I did not ask her permission and she was fine with it. She even mentioned it and linked to it on her comic blog… and that was the idea. Getting her fans to tune in to my comic. Of course, I was spending a lot of Project Wonderful money on her site at the time, so that didn’t hurt either. The point is though, I did not need her permission.

      Fair Use is a sticky subject, but if you play be the rules, you’ll be fine.

      • I did in fact let Scott know, I didn’t really expect a response from so I wasn’t too disappointed when I didn’t get one.

        This is actually a pretty interesting topic of discussion, that I think more folks need to be involved in. So come on people POST!!!!

  3. This is a great topic, Byron, because I’ve been recently investigating using outside characters in my own comics. During my time-traveling story in Addanac City, I used Sherman (from Peabody and Sherman) in a rather prominent role.

    When I decided to publish the story in a trade paperback collection, I rationalized Sherman’s usage as parody, since he doesn’t really behave entirely the way he did in the cartoons (plus he’s a grown man in my story). I covered myself in the indicia by calling it satire and parody. I surely don’t want Bill Ward breathing down my neck. Thanks for the article, B!

    • Again, not being a lawyer, this is just my opinion, but you are safe as far as I can tell.

      One of the tests they use is if the usage is the primary focus. You using Sherman (an aged one at that) as a “guest” in your comic is not the primary focus of the comic… Hank is. This story arc is simply one arc of many in your comic. So, in my opinion, since the usage is not the primary focus and since you treated the character with dignity, then it’s just fine to use him.

      I used Sam from Quantum Leap in three comics, but used him in context of his original format and used him tastefully (no sex or drugs). Again, since Sam is not the primary focus of my comic, then it was okay.

      Now IF Bill Ward were to “breath down your neck” most likely you would be served a simple legal letter stating cease and desist. Meaning, remove the character from your comic. Now, if that were to happen, I’d use it as a PR blitz making a big deal of how a “big company” forced the little guy to remove a character from a comic. I’d remove the character, but I’d let the world know I had to do it. Great PR in my opinion.

      Always turn any opportunity into a marketing ploy. Most “bad news” can be turned into positive PR if done correctly. Any news is good news in the PR business. Depends on how you handle it… but that’s another article for another day!

  4. Drezz makes a great point about monetary gain.

    Having done many a comics with celebrities, where your right of use comes in trouble is when it goes up against the person’s “right of publicity”. Selling a caricature image of a celeb on a tshirt can get you in trouble.

    Not a lawyer but I agree that using Sheldon in George’s story arc is fine and even including it in the trade collection b/c again his role is incidental.

    I am always amazed (using cafepress) what shirt designs get pulled for potential copyright issues and other things that never do.

  5. I once had an mage banned from DrunkDuck for having my character (a rabbit) holding shotguns while wearing a tshirt that read ‘duck season,’ but no one had a problem with Jake the Evil Hare beating the tar out of Bulk Brogan, who only by coincidence looks and acts like Hulk Hogan 😉

    It’s a loopy world.

    • Well, yours *could* be perceived as “stealing” the idea of the Rabbit-Duck Season gag from Warner Brothers. WB is a big studio and larger companies love squashing little guys like us. So, it probably was correct for it to be taken down as, again, it could be seen as stealing the idea and not a parody.

      Parody is fine line between perception and intent. I’ve changed some of my comics because I was doing something I felt would be a “nod” or acknowledgment to an idea or artist, but could be looked at as stealing. So, I’ve changed some of my comics even before they are posted.

      Perhaps if you had your character in a t-shirt that said “Duck Seasoning” and instead of a shotgun, it would be one of those large pepper mills that grinds up the pepper as you dispense it. Now that’s parody.

  6. This is a great article, I just used it to explain a reader about how I made a comic using Spongebob without fear of being sued. Many cartoonists, including me, sometimes take fair use for granted, but I think it’s important to be informed in regards to what one does for a living or for a passion.

  7. If I use a Copyrighted character as, for example, Sonic the Hedgehog as a Main Character in a Webcomic, will I be prohibited from publishing and/or selling any merchandise related to that Comic?

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