As a fan of Walt Disney and the characters he created, you decide to pay homage to the late master by recreating his masterpieces in the form of drawings, sketches, and paintings. You then find out that, although you’re free to recreate Disney characters for your own enjoyment, you’re not allowed to sell them. Why?
You cannot sell your drawings of Disney characters because, by doing so, you would be infringing on The Walt Disney Company’s copyrights and trademarks. These characters are their intellectual property. If you want to sell your Disney artwork, you have to secure a license from them.
We considered the point of view of artists on this matter. We also sourced intellectual property (IP) lawyers to know the specifics on copyright and trademark infringement. Continue reading to find out more.
Copyright vs. Trademark
Copyrights protect original works, such as books and movies. Trademarks protect brand names. Copyright or trademark for a character prevents others from using this character without the owner’s permission.
The United States Copyright Office defines copyright as a form of protection given by US law to creators of tangible “original works of authorship”—those independently created with minimal creativity by a human author.
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David Mullich, The Walt Disney Company’s first video game producer, refers to copyright as the exclusive legal right of an originator or an assignee to perform, film, record, print, or publish literary, musical, or artistic material. With this right, the originator can authorize others to do the same.
What Artists and Laypeople Say
So you cannot sell your drawings of Mickey Mouse. But is it illegal to draw him solely for your own use? Dan Wendlick, a systems administrator, says it’s not illegal if you’re making the drawing for personal or educational (yours, not others’) purposes. You’re also not infringing on Disney’s copyright if you’re drawing Mickey for parody or satire. If you plan to use the drawing for financial gain, it’s illegal.
An example of when drawing Disney characters for sale or distribution is legal is if an artist is paid by Disney to make a drawing of Mickey Mouse for a poster.
Underground cartoonist Karla Holland says, “As long as you don’t profit off your Mickey artwork and you credit him to the Disney Company, you’re fine. Many people share their rendered images of him online.”
Most artists have this perception, but copyright and trademark owners can still go after you if you showcase illicit reproductions of their protected characters. To be sure, secure official permission from the IP holder.
What Lawyers Say
A client asked Avvo, an online lawyer directory, if he can legally sell his paintings of Disney characters if he places the Disney “D” in the corner of each piece as an acknowledgment of Disney’s copyright. He’s aware that he can’t refer to them and sell them as his original work. He sells them only to his friends as a hobby.
Mario Sergio Golab, a copyright infringement attorney, says this client’s sale activity is an infringement on legitimate copyright. Both the artist and his friends who bought from him will be in big trouble if caught.
You cannot paint, sell, (even just offer for sale without the sale taking place), or make changes to a Disney character without an express license from The Walt Disney Company. You cannot legally make and sell any product with Disney lyrics or quotes on it without permission.
Golab clarifies that Disney doesn’t care if they’re credited. Their main concern is financial gain, as they are a for-profit industry. Their business is to license their characters and their other IPs.
IP law attorney Daniel Nathan Ballard agrees. The legal issue here is not who gets the credit for reproducing the Disney characters, but whether they have the right to sell such work. These characters are copyright-protected. The Walt Disney Company and its affiliates, who own the copyrights, have the exclusive right to sell their images, no matter who creates them.
Oscar Michelen, another IP law attorney, adds that it is unlikely Disney will find out informal sales among friends. If they get wind of those activities, however, they will send those involved a cease-and-desist letter and possibly threaten them with litigation.
As an example, Michelen cites their representation of a party planning company that used Disney characters at birthday parties. Disney contacted them and nearly sued them. This case illustrates the huge risks of infringing on a large company’s IP.
Entertainment lawyer Ivan Jose Parron says that the seller would not only be violating Disney’s copyright by using their images in paintings but also infringing on their trademark by using their logo. Disney may also interpret the latter move as an act of diluting their mark or misleading potential buyers.
IP law attorney Bruce Burdick adds that if you’re selling more than $1,000 worth of merchandise, it counts as federal crime 17 USC 506. Also, giving credit is an admission of infringement. You also don’t get a free pass because it’s a hobby.
How to Legally Sell Your Disney Character Drawings
Disney’s multiple corporate entities own many of the IP rights of Disney characters. To know which division owns the character you want to use, visit the Disney website.
Get a License
Attorney Larissa Bodniowycz says the safest way to use Disney characters’ images or names is to obtain permission from Disney called a license. It is a contractual agreement that stipulates the permitted types of uses of an IP plus the price the person or business requesting permission will pay for these uses.
Disney’s licensing website provides instructions for requesting licenses. Licensing prices are not available to the public. Generally, the broader the rights granted, the more expensive the license.
Use Characters in the Public Domain
Alternatively, you can draw and sell reproductions of characters that are in the public domain. Christine Schinagl, author of Diving Deeper: 30 Days to Grow Your Silhouette or Cricut Business, explains the public domain as what happens when copyrighted works expire. The reasons vary: the term has run out, the copyright hasn’t been renewed, or the creators have died. When copyright to a certain work expires, it is available for anyone to use it, even commercially.
Which Disney Characters Are in the Public Domain?
Snow White, Rapunzel, and Cinderella (among others) are now in the public domain. You can use these characters freely, but you can’t use Disney’s version of them or their rendition of these characters’ stories.
Invoke the Right of Resale
Chron business writer Fraser Sherman explains that per copyright and trademark law, you can’t make Disney items without a license. Buying items then reselling them, though, is legal under the first-sale doctrine—no Disney permission needed. This doctrine says that if you buy a copyrighted or trademarked item legally, you have the right to resell it.
You can’t call yourself a Disney store, however, or imply that you’re an authorized Disney dealer. And you can’t sell unlicensed bootlegs.
Invoke the Fair Use Stipulation
This is one potential loophole for using Disney’s characters. The United States Patent and Trademark Office allows some limited circumstances in which an entity can reproduce a sample of, or make reference to a protected character. This policy, called Fair Use, doesn’t require Disney’s permission.
Invoke the Transformative Use Law
You could also legally use Disney’s characters under this law, which requires that you ensure that your work isn’t an identical copy by transforming the character. The result of this change is known as a derivative work.
Fair Use allows you to make commentary or parody on a piece. News stations can show images or clips of copyrighted material without infringement because it’s under the commentary portion of Fair Use.
Shine on Your Own Merit
A truly creative spirit doesn’t need to piggyback on pop culture, impinge on existing artwork, or produce derivatives. Create your own masterpiece and turn it into something exceptional.
If you’re intent on recreating Disney characters and selling the resulting artwork, however, research more about copyright laws pertaining to your art and the legalities of fan art.