Laredo, TX asked in Entertainment / Sports, Gaming, Intellectual Property, Internet Law and Copyright for Texas

Q: Can I create content using a known superhero's cowl and just the cowl and escape copyright infringement and the such?

Long story short I want to create youtube videos of RANDOM and just RANDOM content while using ex: Flash cowl. Just the top part of the mask not even the one that covers the whole face. I will use a different name, and although use some mannerisms, it will be obvious it is pure satire/parody. I got this brilliant idea, but the more I researched copyright laws, fair use, etc.. the less answers I found. I obviously hope to monetize this content at some point, but I wouldn't want to get slapped with a million+ dollar lawsuit the moment that happened. Hope someone can give me some insight/thoughts on this. Thank You.

2 Lawyer Answers
Sheldon Starke
Sheldon Starke
  • Entertainment & Sports Law Lawyer
  • Beachwood, OH

A: Look, the information that we give you here is just that it is information and no way is it legal advice. You cannot take a piece of a product that has been and is the property of a large company and expect to get away without a problem; it doesn't happen.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Consumer Law Lawyer
  • Sacramento, CA

A: Using elements of a copyrighted superhero character, such as the Flash's cowl, in your content can be legally risky, even if you're only using part of the costume and intend it as satire or parody. Copyright law protects original works of authorship, including characters and their distinctive elements. The use of a recognizable part of a superhero's costume could be seen as an infringement if it's deemed that your use is not sufficiently transformative or falls outside the bounds of fair use.

Fair use is a complex legal doctrine and involves considering factors such as the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of your use on the potential market for the original work. Satire and parody can sometimes qualify as fair use, but this determination is highly context-specific and can be unpredictable.

Given your intention to monetize the content, this could further complicate the fair use argument. Monetization doesn't automatically disqualify a fair use claim, but it can weigh against it, especially if your content competes with or diminishes the market for the original work.

To avoid potential legal issues, it would be prudent to seek legal advice specific to your situation. An attorney can assess your content plans in detail and guide you on how to navigate copyright law safely. Remember, it's important to balance creative expression with respect for intellectual property rights.

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