C3 Patent and Intellectual Property Law

Aug012011 | Steve O'Donnell

Can I get sued for this?

Rarely do I go longer than a few days without someone asking me if they can do something without getting sued. I’d bet every lawyer gets that question, or some version of it, a lot. The questions can rarely be definitely answered. If there was an easy answer, then the person asking probably knows the answer. For example the question “is it OK if I kill my spouse?” doesn’t really need to be asked. Unfortunately (for clients), or fortunately (for lawyers), the questions usually aren’t as easy.

For example, here are four questions I’ve been asked over the last couple weeks:

•Can I sell my drawings of famous articles/landmarks and not get sued? (maybe)

•Can I get in trouble for publishing my erotica that features popular TV/movie characters? (maybe)

•Can I be sued for reusing a picture I found on a website? (maybe)

•Can I get in trouble for counterfeiting arcade tokens (that one was answered with a long, uncomfortable stare)

First of all, you can be sued for just about anything. A neighbor could sue you for letting your grass get too long (if any of my neighbors are reading this: I swear I’ll cut it when the heat breaks). You could be sued if your toddler said something mean to another toddler at the park. Someone could sue you because they think you’re conspiring with Elvis, Oprah, President Obama, and a group of sewer-dwelling reptile-people to steal their thoughts. Granted, the chances of any of these cases being filed is narrow, and the chances of them getting anywhere in a court is even smaller, but they could happen. Asking whether you can be sued for something isn’t the right question to ask. Better questions are what is the chance of being sued, and what are likely damages. An even better question is “what can I do to reduce that chance or eliminate it?”

Often when I get these kinds of questions I’ll need to get more information before I can even suggest a plan. For example, to even start thinking about the question about selling drawings of famous articles/landmarks I needed to know what was being drawn. It’s one thing if you’re drawing a cityscape, it’s quite another if you’re drawing a Coke can or Batman. After that, what context is the famous article/landmark being used? Fan art of Batman is probably not going to rile DC’s feathers nearly as much as a drawing of Batman doing something extremely non-heroic and exceedingly out of character (let your mind wander for a moment, I’m sure you’ll think of something). Another big factor is the money involved. It’s one thing if you‘re planning on selling the art on a street corner or mall kiosk, it’s another if these drawings are being incorporated in a large, national publication that can generate thousands in revenue. Simply put, it’s not generally worth the expense to bring a lawsuit against someone if that suit can’t possibly pay off.

Depending on the exact facts behind a question, the likelihood of being dragged to court might be very low, or dangerously high.

No matter where that likelihood ends up, we can usually lower it a bit more. Ideally, we can get a license from any rights holder, but even without that, there are things that can be done, and precautions that can be taken that can reduce the chance of being taken to court.

Once you know the risk you‘re taking, which is something like: (chance of being sued * estimated legal fees and costs * estimated damages * chance of losing) you can decide if you want to change your course of action or if you want to go forward. Without knowing these things you’re going in blind.