Marvel has released a slew of alternative covers for some of its upcoming comic books where the covers are copies of famous hip hop album art with comic book characters. A few examples here:
It’s presently not clear whether Marvel contacted the artists for permission or licensed the art on which their variant covers are based. (Variant Covers are done as collectors items for comic books, they are printed in limited numbers.)
If someone were to sue Marvel over this, a court would look at the following four factors:
- Purpose and character of use: the court would likely find that the original use was for commercial purposes, advertising an album, and Marvel’s use was also commercial, advertising for its comic books. However, the original works are generally photographs, while the allegedly infringing works are illustrations. This may weigh slightly in favor of Marvel.
- Nature of the copyrighted work: the original works were artistic and non-factual. They were also published works. Neither of these factors weigh in favor of Marvel.
- Amount and substantiality of the portion taken: Marvel used the entire cover art, but not directly. It was not a case of using the actual image, but Marvel used the format, layout, and copied elements of the original work. This could weigh either for or against Marvel.
- Effect of the use on the potential market: this is a tough one. It’s hard to say that these covers will adversely effect a market for the licensing of album art – as I find it difficult to believe that such a market meaningfully exists outside of streaming music services.
In short, it could go either way. It’s certainly an interesting topic for discussion.