* This is not to be confused with the bottle/wall limitations expressed here.
Friday, July 10, 2009
Infringement Myths: 99 Copies
Dear Rich: I'm a sculptor and would like to make reproductions of a bust that I have sculpted, based on a trademarked comic book/movie character, for sale online. I have heard that as long as you produce no more than 99 items that you are allowed to sell these pieces as a "limited artist run" and can thereby avoid any trademark infringement issues. Is this true? What recourse do I have if not? I have seen items that match this description for sale on eBay (for example; a custom sculpture of Spiderman - a licensed Marvel character) and want to make sure that before I do something similar I don't cross any legal firing lines. The short answer to your question is that there is no "99 copies" exception* in trademark or copyright law. (You may be thinking of the 200 copies limitation required to qualify as a "work of visual art." That grants you extra rights as a fine artist but it won't shield you from claims that your work infringes). Making and selling something that's based on someone else's copyright or trademark is most likely an infringement. The Dear Rich Staff believes that seeking permission is probably a waste of time since the movie production company will probably not return your calls. The fact that others are doing something similar on eBay indicates that the people who own the rights for the character are either unaware of these uses or are selectively enforcing rights -- that is they only care about the big fish, not the small ones (You can view eBay's policies, here). So, although you may cross some "legal firing lines" with your sculpture, it's possible that nobody will shoot at you.