Can I Create and Sell Original Artwork with Pop Culture Subjects
I am an artist and am thinking about offering to create and sell for profit fine artwork for customers on the internet. Basically the customer would contact me and say "I want artwork of The Hulk in your style". I understand 99% of copyright issues are a gray area determined only in court, but I am looking for opinions (or past legal cases w/ the same situation) on if this would be okay?
Important Situational Factors:
•The artwork would be clearly an original piece of art. It would not be a copy or close copy whatsoever of any existing Hulk artwork. The only similarity would be the Hulk character (described perhaps as strong, angry, green, purple pants).
•Any viewer of the artwork would be likely to say "that looks like the hulk"
•The artwork would be clearly in the artist's unique style, not imitating or impersonating Marvel's artists. (Think Andy Warhol vs. a Marvel comic book for example)
•Art would be hand drawn and painted, never mass produced or printed
Basically I am thinking it may be okay as "fair use" since a new artwork is created and is based only on a popular culture subject rather than a specific piece of copyrighted work like a drawing.
(A somewhat similar situation would be that of celebrity portraits (though I realize the right of publicity is somewhat different than a copyrighted work). Celebrities do have a right to their image, but there are a ton of portrait artists out there who seem to get by just fine legally, creating original artworks that are clearly of the celebrities. If I create original artwork of a "celebrity" fictional pop-culture character, like the Hulk, wouldn't this also be okay?)
Re: Can I Create and Sell Original Artwork with Pop Culture Subjects
If you want to use comic book characters that are subject to copyright and trademark, for a legal operation you should license the right to use those figures.
I can't tell you if the changes you want to make to the characters would be enough to distinguish your characters from the originals, as I haven't seen them.
Characters like the hulk have been depicted in a variety of forms by a variety of artists, in addition to on TV and in movies, so there's really not just a single depiction of "the Hulk" that is "the Hulk" with all others "looking like" the Hulk. If the typical viewer would see the art and say, "That's the Hulk," it probably is.