Peter David's charity auction copyright release

In response to the recent controversy sparked by unauthorized Superman charity auctions, comics writer & novelist Peter David has posted the following limited release on his blog:

As the creator and copyright holder of "Fallen Angel" (with Dave Lopez) and "Sachs & Violens" (with George Perez), I hereby give artists permission to create and donate to the charity of the artist's choice (including on-site for charity auctions) original art containing original characters from "Fallen Angel" and "Sachs & Violens." The only requirement is that the artwork have, on the front or back, the following notice--

"NOTICE: THIS ORIGINAL WORK OF ART IS OF ORIGINAL CHARACTERS FROM THE COMIC BOOK SERIES "FALLEN ANGEL" COPYRIGHT PETER DAVID AND DAVID LOPEZ and/or "SACHS & VIOLENS" COPYRIGHT PETER DAVID AND GEORGE PEREZ. ALL RIGHTS RESERVED. THE IMAGES OF THIS ORIGINAL WORK OF ART MAY NOT BE COPIED OR REPRODUCED FOR ANY PURPOSE EXCEPT FOR DISPLAY AS PART OF THE AUCTION."

One thing to note in this regard is that the release refers only to copyright. The Superman auctions also raised important issues regarding Superman-related trademarks, and given the potential for losing the mark if it's not policed, most companies would be reluctant to allow anyone to use the mark without a more specific and narrowly tailored license.

The following paragraph from a recent ABA article on trademark law illustrates why trademark owners such as Time Warner are so aggressive:

The federal courts have similarly discussed a trademark owner’s affirmative duty to police their marks on the Internet. For example, in Hard Rock Café Int’l (USA) Inc. v. Morton, the federal trial court noted that the plaintiff “did not have an adequate program of trademark control, policing, or due diligence in place regarding third-party use of its trademarks on the Internet.”. . . . Clearly, the court felt the burden was on the plaintiff to police its mark on the Internet.

Under federal trademark law, trademark owners who fail to police their marks run the risk of marks losing their distinctiveness, and therefore their strength. “The trademark owner who fails to police a mark both shows that he doesn’t really value it very much and creates a situation in which an infringer may have been unaware that he was using a proprietary mark because the mark had drifted into the public domain…” A systematic policing program can provide proof of the strength of the mark. In evaluating the strength of a mark, the federal courts typically conduct an appraisal of the owner’s policing efforts to ensure that whatever distinctiveness or exclusivity originally associated with the mark is not lost through neglect, inattention or consent to infringing uses. For this reason, trademark litigants frequently introduce evidence of their policing activities when prosecuting infringement cases.

Note particularly "consent to infringing uses" in the penultimate sentence. If you wondered why Time Warner only begrudgingly allowed the auction to proceed with only one reposted drawing, that's your answer right there.

FYI, as to any Fallen Angel marks, a quick check of the USPTO trademark database indicates that Top Cow had registered an unrelated "Fallen Angel" mark for comics, but that this mark was abandoned in 2002--a year before David's Fallen Angel series was first published by DC.