Several watercolor images of superheroes Batman and Robin by Mark Chamberlain
have raised the ire of DC Comics.
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By Bo Shell
Friday, September 02, 2005
DC Comics, the publishing giant behind many superhero titles, has put legal
pressure on a New York City art dealer and Web site for exhibiting watercolors
depicting Batman and Robin in semi-nude, nude and homoerotic poses.
The publishing company sent cease-and-desist letters earlier this month to
Kathleen Cullen Fine Art in Chelsea and the owners of Artnet.com for displaying
the watercolors by artist Mark Chamberlain. The images include a shirtless Batman
and Robin, the dynamic duo embracing and kissing, and the two characters wearing
only their capes, masks and gloves.
“I’ve spent the last two weeks of my life consulting lawyers,”
Kathleen Cullen, owner of Kathleen Cullen Fine Art, told Artnet Magazine in
a recent interview.
Cullen said New York-based DC Comics asked her to “hand over all unsold
work and invoices for the sold work,” which had been purchased at prices
starting at $200.
DC Comics did not respond to repeated requests for comment. Cullen and Chamberlain
also could not be reached for comment.
Walter Robinson, the editor of Artnet, said the company also received a letter
from DC Comics.
“You know how these copyright things work,” Robinson said. “They
rattle their sabers at you, then if you don’t comply they have to decide
whether to make a civil action, and a civil action is expensive and complicated
with an uncertain outcome and frequently it’s just the saber-rattling
move.”
Artnet, a 15-year-old company that recorded $7 million in revenue last year,
publishes a magazine and hosts Web sites for several art galleries and an illustrated
auction database of fine art values.
“It’s not really my department, but we’re inclined not to
give in,” Robinson said. “I think it’s pretty safe under the
parody exception of the copyright law.”
U.S. copyright law gives holders exclusive rights to reproduce the copyrighted
work, but includes exceptions for fair use. Factors in determining fair use
include whether the use is commercial, nonprofit or educational; the nature
of the copyrighted work; how much the work at issue compares to the copyrighted
work; and the effect of the use upon the potential market for or value of the
copyrighted work.
“Not all parody is going to be privilege under the copyright law,”
said Jamie Silverberg, a copyright attorney. “I think the idea behind
parody is that in certain cases of parody, … where the work is transformed,
the underlying copyright is transformed within a new piece. I think it entails
the notion that there is not an infringement on the copyright because you are
not relying on the qualities of the original piece.”
Silverberg, the litigation director at the Intellectual Property Group in
Washington, D.C., added that he could not rule out a trademark violation in
this case.
Many copyright cases end in settlement before litigation and a small percentage
make it to federal courts, which have exclusive jurisdiction over such cases,
he said.
Patrick Fillion, the British Columbia-based creator of several erotic gay
comics, said reproduction of his work by fans is often the highest form of flattery,
but selling it for profit is cause for concern.
“The way I see it is that the artist should be entitled to depict fan
art,” Fillion said. “I don’t think he should be selling them
to make a profit. There are trademark laws and copyright laws that are in place
for a reason.”
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