A mashup is the combination of two+ different sources (characters, videos, songs, etc) often to hilarious effect. Sometimes mashup creators, by juxtaposing elements of different fictional worlds, create commentary on each world by the simple act of the juxtaposition. Synthesizing two worlds into one is certainly an exercise in independent creative expression, but is it copyright infringement? Consider the rise of mashup t-shirts that combine imagery clearly drawn from pop/geek culture franchises, as well as homage shirts – single-world art that attempts to capture the essence of a character or franchise without falling afoul of copyright or trademark laws. These uses are often less plainly parody or critical fair uses – the traditional core of fair use – but can be highly transformative uses of the underlying works.
Fair Use of Copyrighted Characters
The shirts below involve highly lucrative franchises of comics, movies, books, etc. (most with active sub-licensing markets for merchandise). Licensing markets exist for the use of a single franchise, but nearly never for the combination of two franchises, nor for un-approved fan-generated art.Disney, for example, has officially licensed artists that create new artwork from existing franchises in Disney-approved ways with Disney-approved messages with a highly controlled licensing program. Should copyright law accommodate non-Disney approved messages even if the artist draws substantially from Disney-controlled copyrights? What if the artist wants to combine Disney-owned copyrights with a non-Disney franchise? Copyright law does protect characters and fictional worlds to some degree, as well as derivative works drawn from them, but it also protects fair uses of those characters and worlds.
Fair Use Factors
There are no firm rules in fair use law, which is full of ambiguities. Fair Use allows users to build upon the creative works of others without permission and is a limitation to copyright protection. The Copyright Act provides four factors to consider when deciding whether a use is fair. Fair Uses have traditionally included commentary, criticism, parody, quotation, news reporting, and teaching. The hallmark of fair use jurisprudence in the past 20 or so years has been whether or not the secondary use is transformative. When the character of the use is transformative, the commerciality of the use is still considered, although not necessarily dispositive.
Keep the four fair use factors in mind when looking at the shirts below. The source material is highly creative, and all these shirts were created for commercial purposes. Are the mashup shirts transformative enough?
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used
- the effect of the use on the market for the original
Other factors beyond the four above can be considered. Do you think it would be appropriate to consider the ability of artists to comment substantially on modern popular culture without obtaining a license as an additional factor? Should copyright law accommodate fan-driven art, even if it is created with a commercial purpose?
I invite you to leave your thoughts on the big questions or on any particular shirt in the comments!
Note that all shirt photos have been used with permission of the photographer.
None of these mashup shirts are known to be licensed.
1. 1 Up Box Galaxy Shirt (Star Wars + Totoro)
2. Akibento Box: This shirt combines characters from Kuroko’s Basketball, Madoka Magica, Kill la Kill, and Natsu from Fairy Tail.
3. Geek Fuel A Brief History of Time Travel T-Shirt
4. Geek Fuel The Dark Knightmare Before Christmas
5.Collectible Geek I’ll Be Back To The Future T-Shirt
6. Geek Me Box Simp-Sons of Anarchy Shirt
7. Nerd Block Back To The Nightmare Shirt
8. By your Command Shirt: This shirt mashed up some Battlestar Galactica Cylons. “By Your Command” is the main catchphrase from BG.
The design itself is a take on the cover to Daft Punk’s Random Access Memories!
Bonus hilarious mashup.
9. Geek Me Box DuckTales as PowerPuff Girls T-Shirt
These shirts aren’t known to be licensed. Do you think they are fair uses? Possible trademark problems apart from copyright?
10. Geek Fuel Deadpool “Inspired” Shirt
11. I <3 Star Wars Shirt Punch Shirt
12. Sci-Fi Block Xavier’s Gym for Gifted Youngsters T-Shirt
13. My Geek Box Mutant Academy Tee
14. Nerd Block Deathly Hallows Shirt
15. Pugs of Legend Shirt: It features Blitzcrank, Riven, Ashe, Ryze, and Teemo from MOBA League of Legends – as Pugs!
16. Tardis Schematic Shirtpunch T-Shirt
17. Fanmail Box We Are Groot T-Shirt by Risa Rodil
18. Fanmail Box Ollivander’s Wand Shop Shirt
The following shirts are licensed uses, just as a brief counterpoint to the above examples.
19. Funko Star Wars: The Force Awakens – The Resistance T-Shirt
20. Loot Crate Be Excellent To Each Other T-Shirt (Not a mashup)
Do you have a Fair Use Week wardrobe? Leave your reactions in the comments!