Q: Use of Superhero Images - Marvel & DC

A: Comic characters/superheroes can contain both copyrights and trademarks. As such, there are two types of intellectual property rights associated with both.

You need a license for the copyrights associated with the actual images/drawings of the characters. You need a license for the trademarks associated with the Marvel/DC branding logos as well as some of the character logos.

Marvel/DC do not have protection over general superhero tropes or themes, but they do have copyright protection over the features of the superheroes that make them unique from other characters/heroes.

It's better to create your own characters unless you want to reach out and pay them a license to use their images and such. If you create your own, then you want to make them as unique as possible. If you take a character like superman and then only change minor things, then you could still be at risk. It'll ultimately depend on the nature of changes and the type of IP (copyright or trademark) as to the level of change needed.

There's no magic formula or percentage amount of changes to make to guarantee you have transformed a copyrighted work or a registered trademark enough to avoid infringement. You may run into the problem of transforming the copyrighted work to the point of it becoming a derivative work, which would also require a separate license. Derivative works are basically new works that are substantially based on the primary copyrighted work, or if you think of taking a copyrighted character and putting them in a different story line or setting.

Fair use is a legal defense where you admit you have fully copied the copyrighted work, but you claim to have a justification. If you're wrong, then you have admitted to copying the work on the record. There are 4 factors the court uses for each case to see if there is a fair use in that instance. No two cases are exactly the same. It's tricky.

Think about fair use like this. When an art teacher posts a picture of a painting to discuss in class, they are only using the work to the extent necessary and for commentary/criticism. If it's found that you used more of a work than necessary for the purpose you have and/or your purpose isn't one of the commonly accepted ones, then you are at a high risk of being liable for copyright infringement.

The commonly accepted forms of fair use are using the copyrighted work for criticism, commentary, and news reporting. If your use of the character image is not for one of those, then it becomes an incredibly high bar to clear to show you have a fair use, if not impossible.

Especially if you plan on selling the app, it's safer to either create your own superheroes or to seek out Marvel/DC to pay for a license.