Intellectual Property Law

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I had purchased some blank vans back in 2008 and painted a…

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I had purchased some blank...
I had purchased some blank vans back in 2008 and painted a Nightmare Before Christmas scene that I had designed using Disney's characters and other recognizable elements from the movie. http://tozi.deviantart.com/art/Nightmare-Before-Christmas-96032149 I didn't sell my shoes, I had them only to wear myself and share online.
Recently, I discovered someone had copied my art and painted the exact same design on a pair of vans and are selling them online. https://wanelo.com/p/38604989/custom-hand-painted-nightmare-before-christmas-tim-burton-vans-slip-on-shoes?ref=af_
I tried contacting the "artist" and all I received back were taunting messages and sarcastic remarks. Am I able to press charges? Will this cost me more than I could make from this case?
Thank you so much
Submitted: 2 years ago.Category: Intellectual Property Law
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2/29/2016
IP Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Law Educator, Esq.
Category: Intellectual Property Law
Satisfied Customers: 125,290
Experience: Attorney practicing all aspects of copyright/trademark law
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you painted Disney characters for personal use, then you could do so. However, copying copyrighted characters is a violation of Disney's copyrights so they could have an issue with Disney, since you were displaying your art only to show off your talent and not for commercial gain or profit or in commerce. the issue is that you do not own the rights to the Disney characters, Disney does and they would be the one with the legal right under copyright law to pursue him to stop him and you can report it to Disney for their legal department to sue.
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Customer reply replied 2 years ago
Thank you for your timely response,I know legally this is called 'unclean hands'. They can say 'Hey Brittany, you took images from disney, plus the shoes are Vans shoes, so didn't you do the same thing... But.... couldn't I still possibly counter claim, and say it is still my design? It was my original idea, that they are taking. It was my idea to put it on shoes. Nobody has drawn that EXACT image on a shoe before.If I do bring this up to Disney, am I potentially getting myself into trouble for painting their characters as well? Or will I not be since I didn't sell them?Thank you,
IP Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Thank you for your reply.
As far as selling Van's, they can do that under the first sale doctrine, meaning that if they legally bought Van shoes, they can resell them. The issue is the Disney characters, which are copyrighted by Disney and it would be Disney that has the rights to enforce against the other artist for selling them in commerce. Even though nobody has put the exact image on the shoe before you, it is still derivative use of Disney's copyright/trademark, so they are the party that needs to pursue the other artist.
You did not sell them or do anything with them, you merely made them for yourself, which you can do.
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