littlefox opened this issue on Nov 27, 2004 ยท 129 posts
Ethesis posted Thu, 02 December 2004 at 6:57 AM
Does copyright or trademark give Square-Enix the ability to lock up an entire style of clothing such that nothing like it can be made? I can see where the design of the outfit in question resembles the outfit that Paine wears, and I can also see where they differ. I've also seen similar outfits in the punk rock styles of the 80's. I realize that the marketing of the outfit brings out the similarities more than the differences but there are differences. That is part of the question. People have nicely identified the two areas that a court would probably consider germane -- lines of clothing and animated cartoons. In fact, this would make a good law review article, if someone hasn't already done one. I'm not even close to having an answer, though pay me $400,000.00 and take the case through an appeal and I can give you a good idea ... There are two important thoughts: First, what is the company policy -- that will tell you whether or not you invite IP litigation. Is it a Lucas-like "we love to share and create a fan base" or is it a Disney-like "we are already selling something in every niche and would really rather you didn't steal our sales" approach? Winning IP cases isn't always that much fun. Second, what warning should you give the artist about look-a-like issues? In animation this is especially interesting as the "look" often swallows up hordes of characters -- so many of them look almost identical -- and there are often entire genres -- e.g. felicity, sheesh, there is a whole genre of "furries" and literally hundreds of cat characters alone. And ya know, I don't have a freaking clue how a judge -- who is typically not going to be terribly familiar with all of this stuff -- is going to rule. no kidding. The point is how do I know I have to change the poses if no one told me that there might be a confusion with a well known character ? I'm not a lawyer, but if I buy something, I want to be able to use it without someone telling me "Hey, this is copied on XX game/film !" which is important. Anyway, someone needs to write an article for a law review on this point. Would even be good if you wanted to teach IP. But, I can see an advertisement disclaimer: "My take on the female catgirl. This type of character represents a sub-genre with several hundred known characters, the most prominent being [list five cross dressing fanboys], [list fourteen animated characters], [list three comic book characters] and [list six novels]." Or, germane to this point: "This character uses clothing and styles from the 80s, used by [sixty-five animated characters], [fourteen game characters], [twenty-five comic book characters] and others. This particular style is evincing a strong comeback and is a developing area for renders, with several competitors considering or working on their own lines."