Heroine Addict wrote:The name, chest emblem and distinctive likeness are trademarked.
As you say, fair use offers limited rights for the transformative purposes of critique, satire or parody. Which gives limited protection to the producers who are explicity making porn/fetish. However the 'mainstream' PG-13 producers may find themselves slapped with a cease and desist order if they use the distictive likeness of Supergirl in a straight video that isn't transformative.
Name and Chest Emblem yes, likeness, not in this case, no........
The first two are easy, one is name (which itself is intellectural properties) while the other one is a distinctive design.
The third one is a bit grey, what is distinctive likeness to be exact? If we are to copyright supergirl via her distinctive likeness, then it would have been the comic version of the supergirl, not Melissa Version. Then two things you will need to notice.
1.) The distinction.
What make supergirl design distinction? Is it because of the red cape, blue leotard? or because of the symbol? Bear in mind the style of the costume is not distinctive at all, the characterization is basically built by putting several commercial garment (in this case, a red cape, blue 2 pieces or leotard, red boots, or may or may not be with black pantyhose.) Those are all commerically, off the shelf item. In fact, in this case, the costume itself is non-discrete, which means, you can, buy all these item I said above, without the CW/WB/DC apporaval. But not with the "S" design and the name supergirl
2.) The trademark.
You cannot trade mark a likeness unless it was related to brand promotion or association, however, in this case, we are talking about Supergirl Comics, which means they are cartoon characters, otherwise you will be trademarking Melissa Benoit Likeness, not supergirl.......Now, if we make a live action movie about "supergirl" but call it whatever else, you cannot be violating the "Likeness" of a cartoon as you are a human, not a cartoon. How exactly can an actual woman (or god forbid, a man) looks like a cartoon? A violation cannot be make if you are comparing between a cartoon character and an actual live human......
There lies a creative process to transform a character from Cartoon to Live Action, a process which you and I applies differently, of course, you will get into trouble if you intentionally wear a blue leotard with a S stylized by the trademarked version on your chest, what if the S is different? Or The S is in different places, or missing althogether? If that is the case, and if the trademark held, then effectively you are outlawing a specific style, which basically ban everyone wearing blue leotard, red skirt, red cape, black pantyhose and red boots together. If this is allowed, then the first thing I can think of the all celeb style are of IP violation, and the high end fashion will simply gone as it feed on celeb trend
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"Remove .. my magic belt"..
