Copyright laws.. painting Elsa, Olaf, Winx, Monster High..help

Hello ,
I have come across a consideration,
Is it even a consideration?
Are we infringing on copyright laws to be painting Disney etc characters for profit?

Help - I am in love with painting Minions, Olaf, Ninja Turtle Masks, and Transformer logos, most people like them and photograph them and pop these on their face book pages.

Am I going to get in trouble? Do I have to pay royalties?

I know, probably a bit intense a question-
would really appreciate your input-
Warm regards
Bee

Bee, honestly the likelihood of Disney suing you for copyright infringement for painting the designs and posting photos to facebook is minimal. They've been loosening up on their copyright presence post-Frozen, and the sole photos aren't generating any direct income for you (from advertisements etc.)

I dress up as Elsa for parties sometimes, and am careful in how I word things when posting to my facebook page and writing emails directly relating to that. I call her our Ice Queen entertainer, as most entertainers I've found who offer princess services do.

In terms of painting designs, it should fall under transformative use, which means you are appropriating and changing the designs enough to claim ownership as an artist.

In the grand scheme of things, it's just face painting, it's temporary art, yes you're making a degree of income from those characters, but you likely aren't making enough money solely from those designs to have Disney demand that you stop, or demand a royalty.

Paint away!

While different countries have different laws regarding copy right (*cough* China *cough*) there is a basic international copy right law.

So with out getting too deep into it I'll tell you how this works.

I'll use spider-man as my example.

If I dressed up as spider-man and entertained at my kids party, it's not copyright infringement. If I made a website and advertised that I dress up as spider-man and will entertain at your party for money - we have a problem. Then a gray area emerges when we merely change the name to 'Spider-Guy' because it's not really the same name, but the likeness is is owned by marvel (which is owned by Disney). Usually Costumed character business's can get around this by instead of using 'brand names' like 'Elsa' and instead call her 'The Snow Queen'. Usually people care more about you using the name then the image, but it's still a risk they could sue you (and they have money money so they win  ).

BUT face painting is different! See if you paint a spider-man face, take a photo, then put it on your website and label it 'spider-man' you are technically infringing on copy right. However, if you paint that same design at a birthday party, or a farmers market, or are otherwise getting paid to paint it. It's not an infringement!

Here's why:
If I painted a picture of spider-man and sold it, it's totally legal! Artists are allowed to produce 'original' creations of an already owned character, but it has to be a 'one off'. Meaning if I scanned the painted picture and sold prints of it, I would be in violation. 
But if I painted a new picture of spider-man in a new pose, it's again an 'original' creation and I can sell it but not make prints like before. OR if I painted something similar to my first picture but instead on a bike helmet, or as wall mural it's an 'original' again. If some one who bought my painting put it on display and charged admission, or made money off of it, they would be in violation.

Hence the time Disney sued the day care with the mural of Micky Mouse. The artist wasn't in trouble, the daycare was. The day care charged parents to attend, and it was a public space. BUT had it been 'Snow White' or 'Sleeping Beauty' they would have been fine, because those Characters are NOT owned by Disney. They are Grimms Fairy Tales from over 100 years ago, and thus are public domain (anything 70+ years old after the death of the author) 

Here's how this applies to face painting.
Every single face paint of spider-man is legally an 'original' and 'one off', because we are painting on a new face every time. It's different every time because it's a new face.  

BUT if you have a photo on your design board, you are in a grey area and could be sued, and if it's labeled as 'spider-man' you are infringing.

So there you have it.

On my website, my spider-man photo is labeled as Spider-Man. If Disney ever sniffs me out, all they can do is send a 'cease and desist' letter, at which point I'll change the name to 'Spider-Guy' . 

Really, when it comes to face painting, we are small potatoes to them. They care more about mascots and other things. When it comes to face painting and balloons there is only so much they can do.

Generally speaking, the copyright holder must prove the copied work has a negative effect on the work's value or potential market. 

When it comes to (real) tattoos, a tattoo artist who inks a cartoon character onto a client without obtaining permission from the original illustrator may be infringing by affecting the potential market of the character; the illustrator could sell drawings to tattoo parlors for use on clients. On the other hand, the client is less likely to be considered infringing, since his display of the work is usually not for profit and in most cases would not affect the work's value or market.

Also as a side note (this is true in Canada last time I checked) once you paint something on some one else it becomes their property, regardless of whether or not they paid you.

I found this out talking to a photographer after doing some body painting for the first time. He told me that I should get my body paint models to sign a contract of sorts because once it's painted the model owns it. Therefore the model could always strike a deal with the photographer to sell the photos to a magazine, they both make money and you are sh!t out of luck on all your hard work!

The way the law see's it (so I've been told) is that it's like a tattoo. Models or actors don't have to pay their tattoo artists royalties every time their tat is on a magazine or in a movie, so the same goes for body paint, and thus face paint. 

Scary thought right?

Also means anything the model does with your face paint is on them, no you.

Just like how Disney sued the daycare and not the artist of the mural. The owner of the wall was held responsible, not the one who painted the wall (unless they advertise that they paint copy righted characters). So the owner of the face is held responsible if they want to take a photo of their spider-man kid, then make a bunch of prints and sell it as 'spider-man face paint photo'. You get off scott free.

But this opens up a whole new can of worms now doesn't it! lol

Do I have signed model releases for all the faces in my selection book? Nope! So technically who is stopping some one from stealing another artists face paint work and posting it on their site? Not much legally it seems, unless the original model steps forward; just a whole lot of public shaming if the truth ever comes out. 


Find out more about tattoo copyright here
https://www.legalzoom.com/articles/before-the-ink-dries-copyright-law-tattoos
(Because there isn't much to be said about face paint lol)

Omgosh, Forest Fairy, I really appreciate your insight and wisdom on this, it makes sense.
I love painting what my kids watch, although have not done this as yet, I wanted to ask what you thought about it.
Sincerely,
Thank you

Thank you also Kooky Clowns, I found your perspective valuable and interesting,
Sincerely,
Thank you

Oh You are welcome!

I noticed though that the ending of my post is missing! I write them in a windows note pad then copy paste, so i think the ending got cut off... I'll try to remember it.


Ending

"So if the model owns the face painting once you put it on them, technically what is stopping some crappy face painter from stealing another artists face paint work and posting it on their site? Not much legally it seems, unless the original model steps forward; except a whole lot of public shaming if the truth ever comes out. Again this is a huge grey area.

BUT as it turns out we in fact DO own the photos. And if some one lifts them from our site, we have every right to ask them to remove them. Why? Not because we are the ones who painted the face, but because we were the ones who took the photo! We are the photographer!

Photographer's works are more protected and defined under copyright then face painting and tattoos currently. So if you see someone lifting your work damn straight you have the law on your side to get them to stop.

On the plus side because of these laws I was able to go up to a face painting company that stole my gig, get them to paint one of their crappy butterflies on my hand, and take a photo of it, and use it in advertising."


On MY hand, and MY photo = Totally Legal  "

--- end ---

So there ya have it! Sorry for leaving the ending out, it made it seem like any one could take out photos with no consequence lol. But nope, we are the owners of the photos  if not the face paint itself, for all the sense that makes! LOL

As per usual, I have turned my long winded forum reply into a blog post!

Complete with funny & sassy photos.

Face Painting: Copyright Explained

Enjoy!