Kickstarter is white-hot right now (that means the customary fall from grace/popularity is just around the corner) and we’re seeing projects, specifically animetion ones, popping up all over the place. While some are to fund entire films or TV series, others are a lot simpler, but no less ambitious. For example this one, which purports to model every Pixar character over a 12 month time frame. Ambitious, yes. Legal? It’s not so clear. Let’s take a look at how this particular project once again highlights the tricky intersection of copyright and trademarks.
It’s Copyright Infringement
What may be abundantly clear is that yes, it features the use of Pixar’s copyrighted characters and designs. For many studios, that’s a no-brainer. The creator is proposing to recreate (as accurately as possible), every major character from all of Pixar’s films without permission.
Furthermore, he is performing exact replication. Even though his own efforts are going into creating the models from scratch, he is essentially creating facsimiles. In order to ‘escape’ the copyright protection afforded Pixar, he would have to make them transformative in some way. Something he does nto appear to be doing.
It’s Trademark Infringement
The copyright aspect is clear enough, but what about the trademarks? Ah, you say, he’s not selling anything or masquerading as Pixar so it doesn’t matter.
Well, actually, it does. While he is not pretending, or even pretending to pretend to be Pixar, trademark law also looks at things like brand dilution. By creating Pixar characters and such, he is, in a way, diluting Pixar’s abiity to sell those characters that also function as trademarks in the same way that Mickey Mouse does for Disney.
On top of that, his project requires funding to begin with; it isn’t being done for charity. The money raised will feed and clothe the creator for a year while he produces the models. That makes it a commercial enterprise and almost certainly puts it under brand dilution.
The final aspect to the trademark case is that many of the characters in Toy Story aren’t even owned by Pixar. The original ones (Buzz, Woody, the martians, etc.) are, but almost every other toy in the film is owned by another corporation who hold the trademarks. Selling models of those toys, even if they are based on a Pixar film, will infringe on those trademarks instead and almost certainly again be covered by dilution.
Escape From Infringement Via Fair Use
Fair use is a clause within US copyright law that shields users from the perils of copyright infringement provided it is for certain, codified functions or situations. An example would be news reporting, or critical commentary.
Another aspect is education:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
So, is this a “commercial” venture? Ostensibly no, but the fact that he will be living off of the monies raised certainly complicates matters. A court would likely find that it is, if not on the basis of the living expenses, but on the basis of him distributing DVDs of his work.
What about the educational aspect though? The whole aim of the project is to illustrate and explain the process of modelling a 3-D CGI character, right? Yes, absolutely! However, does that count as being educational for the purposes of copyright?
On the surface, it is. Delving deeper though, it again gets pretty complicated. It could easily be argued that the creator could simply use his own designs; he’s clearly talented enough. The use of Pixar’s characters is admirable and would be beneficial, but their use does not preclude other possibilities, especially non-copyrighted ones. Lastly, educational purposes generally do not create things for use by others, rather they are instructional. In this instance, the models created will be available for others to use; not use for their own education.
Once again, we see how easily it is to get bogged down in some of the legal concepts that govern animation.
It would be nice if Pixar released their own models, or even instructions on how to make them, but that is not the case. Disney is well known for being overly protective of its creative designs.
Filmmakers like David OReilly are leading the way by making their character rigs available for non-commercial purposes, but until a process of sorts is formalised, Kickstarter projects like this on are on shake legal ground.