Warner Brothers Shuts Down Auction For Children's Cancer Charity

from the nice-of-them dept

Fri, May 16th 2008 2:27am — Mike Masnick

Reader Jonathan points us to a story that's also made the rounds on Boing Boing. Basically a blogger who apparently is somewhat well connected in the comic book/superhero world decided to get a bunch of artists he knew together to create comic character-based artwork to auction on eBay with the proceeds being sent to a children's charity who had helped out his own family at one point. The charity auction was announced, a bunch of artists signed up and created superhero-related artwork, and the auctions began on eBay. At some point, Warner Brothers, who owns the rights to many superhero characters contacted eBay to shut down a few of the auctions. This made the guy pull the rest of the auctions and get a bit nervous about whether or not he broke the law. Oddly, after all of this started getting attention Warner Brothers let one of the auctions proceed, but didn't respond to a question from the guy about letting the others move forward. In fact, in an email, Warner Brothers didn't explain its position at all.

On the whole, the legal issue is a bit murky (and it doesn't sound like anyone's making any legal threats here, so this probably won't go any further). The artwork may very well have infringed (though there are reasonable arguments for why it was not infringing as well). However, once again, this does seem like a situation where lawyers jumped ahead of what actually made sense from a business or PR standpoint. A smart company would have seen this going on and would have figured out a way to embrace it and come out of it looking like a good guy -- perhaps sponsoring the charity auction in some manner or another. But in shutting down the auctions, Warner Brothers comes off as a big legal bully who doesn't want to help kids with cancer. One more reason why legal solutions should always be looked at as a last line of defense, rather than an automatic solution.

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Filed Under: artwork, auctions, charity, super heroes
Companies: ebay, warner brothers

25 Comments

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Crosbie Fitch (profile), 16 May 2008 @ 2:46am

Not cultural works, but commercial
When will people recognise that our last century of commercially produced artistic works are not part of our public culture, and not to be appropriated by members of the public without a proper commercial license - no matter how worthy the cause.
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RevMike, 16 May 2008 @ 3:57am

Unforntunate convergence of trademark law and the internet
In order to maintain a trademark protection - which is frequently used for these sorts of characters - companies have to defend them. If you hired someone to paint Bugs Bunny on your kids' wall, there is very little opportunity for anyway to find out and so nothing happens. But if you have anything online, it is searchable. Someone involved in a lawsuit over trademark infringement with the company that owns the mark might point back at your auction, claiming that the company failed to defend the mark there, and so the mark is no longer valid.

The "crime" here is in the lack of followup. The original auctions should have been taken down, but then the company should have issued a limited license for the use of the characters and the auctions immediately re-listed - probably with some wording "The characters appear here under license from ..."
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Blatant Coward, 16 May 2008 @ 3:59am

"...members of the public can have no rational interest in constraining the use or reproduction of their published works – such control is desired only by publishing corporations in protection of their unethical monopolies.
— Crosbie Fitch"

Gee where on the auctions did it say "Genuwine DC SUpeerHero Comexs"

If these art works somehow defray the profits of someone in the market for buying a comic book, I would love to have that pointed out to me. I'm sure the RIAA can educate me on this.
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Sean, 16 May 2008 @ 4:02am

Too many copyright / Patent stories!!
Too many copyright/patent stories!! What about new online business ideas (good and bad)/news/ etc. etc. OK, we get that you think copyright is overused - let's move on! This isn't techdirt, it's copyright&patentdirt.
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SteveD, 16 May 2008 @ 4:06am

Re: Not cultural works, but commercial
"When will people recognise that our last century of commercially produced artistic works are not part of our public culture, and not to be appropriated by members of the public without a proper commercial license - no matter how worthy the cause."

Gets a bit more interesting however when you consider cases like Disney, who copyrighted material that originally was in the public domain, eh? :P

Still, from cases like this you've got to wonder if these companies actually have PR departments. It seems like protectionism is the only game in town these days.
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Duane, 16 May 2008 @ 4:14am

Re: Unforntunate convergence of trademark law and the internet
See, this is the thing I have never understood about these trademark law discussions, there is this opinion that since the law says an undefended trademark is void, that this justifies every wrongheaded, bullying move that media companies make. In any court of law, I would think that as soon as defendant's attorney produced this as an example of non-defense of the trademark, the plaintiff's counsel would simply print out a couple of thousand pages listing all the instances where they HAVE defended the trademark, and the case would proceed. Unless anyone believes this is the only time they have defended their trademark, I fail to see why they are compelled to be assholes about a charity for kid's cancer.

If anything, they could have, as you said, issued a one-time license, but that's not how the corporate attorney-drones think. They want to own the ideas; they want a court to tell you you can't experience or think about their character without paying them a license fee each time. Since they have not been able to get to that point (yet), they settle for bullying whomever they can. 1984's crimethink will not come about due to government suppression, it will come about due to this maddening extension of licenses, "IP" rights and corporate scare-mongereing which we have allowed.
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Crosbie Fitch (profile), 16 May 2008 @ 4:48am

Re: Re: Not cultural works, but commercial
I think it's time the public realised that copyright is not actually in their interest or worthy of their respect, and not only treated all published works as inescapably their own, but stood together in solidarity to defend any artist suffering the depredations of publishers pretending their published works remain their commercial property.

Tell me what bunch of cartoonists, who've spent their life entertaining children, would stand up and call for the prosecution of this other bunch of cartoonists who'd like to help extend the life of less fortunate children?

Fundamentally, if you don't want the public to have your art as part of their culture for them to freely exchange and build upon, then don't publish it in the first place.

As you observe, Disney had no compunction building upon public culture for their own benefit. They should similarly tolerate the public building upon the public culture Disney publishes.

Copyright was a monopoly intended to constrain a few commercial printers 300 years ago, not the public. It's an unethical anachronism and should have been abolished a century ago. Today, it's just revealing corporate sociopathy.
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Reason, 16 May 2008 @ 4:51am

Re: Not cultural works, but commercial
Perhaps when people stop having culture.
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Crosbie Fitch (profile), 16 May 2008 @ 4:58am

Re:
I quite agree with you. There is no plagiarism here, nor any misrepresentation. If anything, it's a tribute to Warner's work.

Such a pity Warner so selfishly tries to prohibit anyone else using the characters they gave to the world.

But then they'll argue "Oh no, we just said you can look, but not touch. We didn't say you could share them or build them into your own works. These are sacred icons that remain our commercial property - not part of your culture. Whatever gave you that idea?"
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SunKing, 16 May 2008 @ 5:18am

Name & Shame!
Companies work hard to build their public image which is important to them. News items like this should be spread far and wide in order to SHAME the company in question. Common public opinion would find such actions as this utterly discpicable, creating an extremely bad opprobrium that would colour WB for a long, long time. And that's how it should be. You reap what you sow.
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Hoeppner, 16 May 2008 @ 5:23am

there been a few cases where the judges ignored someone's work getting infringed upon based on the fact that they weren't aggressive enough in the past.

You can only be a nice guy so often because of those rulings.
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Anonymous Coward, 16 May 2008 @ 5:47am

How about we throw out all copyright, patent, and trademark law and go back to BOREDOM as the motivation for creativity and progress! ;-)
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Overcast, 16 May 2008 @ 5:56am

So glad they did this! I'm glad to see corporate profits and interests trump over a silly charity!
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Yogi, 16 May 2008 @ 5:57am

Never
Re: Crosbie

These works are owned by the public as well as the artist since without the public they would not be recognized, nor succesful and nobody would have heard of them.
There is no successful art without the public that you despise.

So,the real question is when will artists and their lawyers and business managers realize that we live in a free world and captive audiences rarely exist anymore and that they, the artists, are completely dependent upon the goodwill of the consumer public?

And that as a consequence they should appreciate the fact that we are willing to watch or listen to the artist instead of complaining that we like them enough to incorporate the artist's work in our culture?

P.S. suing your customers is not, strictly speaking, an art form...
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Crosbie Fitch (profile), 16 May 2008 @ 6:09am

Re: Never
By suggesting that I despise the public I think you've assumed I'm in support of the people recognising that the last century's published works remain commercial property rather than public culture.

I'm not in support of this recognition at all. In fact I'm horrified that so many people seem so willing and compliant in this respect.
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Anonymous Coward, 16 May 2008 @ 6:18am

Re: Re: Re: Not cultural works, but commercial
Tell me what bunch of cartoonists, who've spent their life entertaining children, would stand up and call for the prosecution of this other bunch of cartoonists who'd like to help extend the life of less fortunate children?

I can envision a "give them an inch, they'll take a mile" argument here. I mean, yeah, they spend their lives entertaining kids, but they need to eat. And yeah, this is a worthy cause, but what about the next guy that points to this as precedent. Maybe they have a point, maybe they don't. All I'm saying is that even if they're wrong they aren't utterly unreasonable.
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Anonymous Coward, 16 May 2008 @ 6:21am

Re: Re: Unforntunate convergence of trademark law and the internet
1984 meets cyberpunk. I love it.
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Crosbie Fitch (profile), 16 May 2008 @ 6:34am

Re: Re: Re: Re: Not cultural works, but commercial
But, remember, we're not talking about Robin Hood's gang stealing gold from the sheriff of Nottingham to give to the poor. We're not talking about theft here. No-one's stealing food from one bunch of cartoonists to give it to children with cancer.

This is the public's culture and their cultural freedom at stake.

We're only talking about one bunch of cartoonists reproducing the characters that many children have become familiar with over their short lifetimes thanks to another bunch of cartoonists.

Copyright advocates say "Either pay the first bunch whatever they demand or create new characters - you thieving bastards - and tough luck if the kids prefer our work to yours".

Something's gone terribly wrong if this is what copyright is about - don't you think?
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Nate, 16 May 2008 @ 6:35am

Gray area here...
I think, if it can be proved that the proceeds are going to charity, they shouldn't have stopped these auctions. I understand the need to have control on this stuff, but, these kids are dying and need any help they can get. But, the argument about "give and inch, they take a mile" is true. What Warner Bros should do is team up with this guy, or the cartoonists that provided the artwork and continue the charity. If it is an effective way to raise money for a good cause, how could you not. http://www.custompcmax.com
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Hank, 16 May 2008 @ 6:43am

Re: Unforntunate convergence of trademark law and the internet
Completely agree, they should have taken down the original auctions (thereby protecting the trade marks) and issued a one-time license to immediately reintroduced the auctions as officially licensed and supported by WB.

Why is it so difficult for people today to be reasonable and logical about things? This could have been a huge win-win situation. The artists get to support a great cause, a worthy charity is supported, and WB comes out looking like heros while still protecting their TMs. This could have been on the 6 o'clock news as one of those "feel good" stories. Instead the charity isn't getting supported and WB is getting trashed on techdirt. Sad
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DS78, 16 May 2008 @ 6:53am

WB's Stance = Phail
How hard would it have been for Warner Brother's to step up and grant them permission to sell these fan works at Auction. In the end every one wins and WB gets a few reputation points for helping out sick kids.

Things like helping people like that used to exist. Slowly dying off however, even on a local scale.
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Steve R. (profile), 16 May 2008 @ 7:16am

Corporations Asssuming Police Powers
One of my emerging thoughts with so-called intellectual property is that corporations can take "actions" against people on their own volition and without due process.

For example, Mike wrote "This made the guy pull the rest of the auctions and get a bit nervous about whether or not he broke the law. Oddly, after all of this started getting attention Warner Brothers let one of the auctions proceed, but didn't respond to a question from the guy about letting the others move forward. In fact, in an email, Warner Brothers didn't explain its position at all." (emphais added) This forum has also contained articles regarding content producers demands that ISPs "filter" internet traffic to protect their so-called intellectual property and HP was caught in a pretexting imbroglio.

These incidents clearly point to a trend where corporations believe that they can unilaterally "define" what is legal and that they posses police powers to take action against the malcontents. A scary thought.
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Mike S, 16 May 2008 @ 8:29am

Ebay/copyright policy
None of the above ...would be the reason ebay pulled the auction.

It is an automatic knee-jerk reaction that ebay has in place to pull any auction that the {VERO} committee decides may be a potential infringement of a copyright...

Look up VERO on ebay and read about it.... ebay has scouts online (although they cannot police them all) to find and remove possible infringing auctions and their decision is pretty much final with any repost by the seller making them liable for expulsion from ebay
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mike allen, 16 May 2008 @ 10:51am

if
if ebay would not auction id go somewhere else off line maybe the drewings were given by the artists themselves for auction in respect of charity Warner Bros have no right to interfere,.
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Teetoo, 2 Jun 2008 @ 2:10pm

Why?
Why would you put that in their like who cares I don't show something like when they were little and they argued about a toy train. I have to do a project you know!!!!!!!!!
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