Dear Rich, I am writing a movie and wanted to use short bits of super heroes like Spiderman, Superman, Batman and Wonder Woman. Have these super heroes been around long enough for the public domain? If not, could I get away with having them in my scenes in plain clothes, without calling them by their superhero names but having their costumes sort of hanging there as 'subliminal persuasion'? We're not sure about your concept of 'subliminal persuasion.' Our definition of subliminal is something that is below the threshold of conscious perception. (And no, we have not heard of any cases of subliminal infringement.) We believe you're actually referring to a subtle form of objectively conscious perception. As for your questions ... the short answers are (1) most licensed characters are protected by trademark law (as well as copyright law) and the trademark rights can last forever, provided the owner continues to exploit the uses (more on the public domain, below). (2) If you're using the superhero persona or costume, then you're trading off the popularity of the character, and in the process confusing consumers as to the source. In other words, you're ringing the infringement bell.
Public Domain Superheroes
By the way, the
Dear Rich Staff reports that there are many superheros in the public domain (as this
website demonstrates) and there are even
whole comics devoted to them; but you probably won't want to use any of these unknowns for your movie. In any case, our legal explanation is unnecessary because it's unlikely anyone will finance your script unless you can get clearance from the licensed character owners. (If you're looking for legal counsel to sort it out, why not ring up
Matt Murdock?) (Speaking of subliminal messages, the photo above shows the Dear Rich staff with an unnamed licensed character whose head appears to be upside down.)
