Thursday, July 1, 2010

Gumby on the Dashboard: Fair Use?

Dear Rich: I am developing a 72-page graphic novel and in one of the scenes a truck driver has Gumby and Pokey figurines on his dashboard (as well as a St. Christopher figurine). Gumby and his pony pal Pokey are fully visible in six panels and partially visible in a seventh (the entire graphic novel will consist of approximately 400 panels). I should note that in the panels in which Gumby and Pokey are visible they are not central to the panel but simply can be seen as small figures on the dashboard.  In one panel the truck driver makes a remark about Gumby, favorably comparing his record of averting accidents to St. Christopher's. As you are no doubt aware, Gumby can "walk into any book" and I would very much like to welcome him into long as his presence will be (or at least is likely to be) protected by the fair use doctrine. Please advise as to whether or not, in your opinion, this would be a permitted use of Gumby. The short answer is that the the Dear Rich Staff smells fair use. What you have working for you is that Gumby is being used incidentally to make a point about your character, and he's not being used more than necessary to make that point. Your use is a little less blatant than the 2003 case involving Barbie and various kitchen appliances. On the other hand, there are other fair use cases -- one in which a copyrighted wall quilt was used to decorate a TV character's room. (Not considered a fair use.) Still, we feel that the current trend may be more permissive to uses such as yours and that the needle tilts in favor of fair use. (It's also unlikely that consumers are going to confuse you with the source of Gumby, muting trademark issues as well.) There could be more of a problem if Gumby got more screen time in your graphic novel, was on the cover, or started talking or moving (or perhaps if your graphic novel was remade in claymation).
Our opinion plus $.25. Although we feel like your use is a fair one, keep in mind that our opinion isn't worth much in a court of law (or many other places). And that's the other thing, if Gumby's people wanted to pursue you, you'd have to be able to afford to prove the fair use -- always a wild card in a fair use analysis.