Copyright and profitability
I was answering a question about copyright, and it brought up a widespread misconception that I don’t believe we’ve covered here in our discussion of copyright law.
Namely: It’s OK to infringe on a copyright if you’re not making a profit (or have no intentions of doing so).
This is simply not the case.
The conversation went like this. The cartoonist wanted to do a comic that used actual sports teams, their logos and athletes. S/he wanted to know if it was potential copyright infringement.
I think it would have tremendous potential to fall afoul of copyright law (not to mention trademark), and used the following examples:
If you’re commenting on the players — for example, a Tom Brady / Deflategate cartoon — that’s Fair Use because you are making a comment on the person as a sports figure.
If you’re trading on the player’s image — for example, a comic book in which Tom Brady gets bitten by a radioactive spider and becomes a superhero — you’re on shakier ground. That’s because you’re not really commenting on the football player. Rather, you’re hoping that a large number of Tom Brady fans buy the comic — trading on his fame.
Here’s another way to look at it. In the first example, you couldn’t possibly do the cartoon without Tom Brady. If you remove him, everything falls apart. That’s because the commentary is on him.
In the second example, you could conceivably replace Tom Brady with, say, Mike Tyson, and you could easily tell the same story. There’s no real commentary on Brady.
To which, the cartoonist responded that his or her idea fell more in line with the second example, but went on to assert that, since he or she didn’t plan to profit from this comic, everything would be OK.
That’s a very common misconception.