Using a well known Superhero in a film, but not in a usual way.

Fiveacre Films

Fiveacre Films

For several years I have been sitting on a very good screenplay written by a friend of mine over a decade ago. He was pretty much a nobody back when he wrote it, but is now a well-known published author. Still, he says the script is mine if I want to produce it. The story is a dark comedy which could be made for hardly any cost at all. No explosions, no car chases, no stunts, no VFX. Mainly just the half a dozen or so characters sitting around various locations and talking. It's that kind of a picture.

Here's the thing: The main character is a very dysfunctional young man trying to cope with life and ultimately get the girl. One of his coping mechanisms is an imaginary friend who happens to be certain well known (and trademarked) comic book superhero. This superhero shows up periodically (Only in our main character's head. We, the audience can see him, but no one else in the film can) to offer advice. That's all he does. He's doesn't fight crime. He doesn't fly or swing around the city. He doesn't do any of his typical superhero stuff. He just gives advice and serves as someone to talk to when the guy is alone.

Any advice on actually using this superhero in the film? I know I could just make up a similar comic book character of my own to fill the part. But the film would be so much more effective and funny if we could use the actual well-known character. Any thoughts?

Would using the superhero in this way be considered parody or fair use?
 
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Fiveacre Films said:
the film would be so much more effective and funny if we could use the actual well-known character. Any thoughts?
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That's why people get paid for their IP. Using it adds value to your product. How much value? Let the bean-counters decide.

It's very similar to the whole music thing. Using Black Sabbath & Led Zeppelin would make my movie's soundtrack very legit. There will obviously be an issue if I don't have their OK (and suitably-sized cheque in hand) to do so.

Luckily, there's no shortage of unsigned bands, in a similar vein, who can fill that soundtrack up adequately. Who knows... maybe they'll turn out to be the next great act, anyway :)


Would using the superhero in this way be considered parody or fair use?
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Obviously I haven't read the script but, as described, I would doubt it.
 
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I'm not sure if this is what you have in mind, but I'm envisioning something similar to the scenes in which our hero talks to Elvis, in True Romance.

If that's the case, I think the solution is really simple. You just never mention the superhero's name, and you don't use any trademarked logos. Let's say, hypothetically, you want to use Superman. If you show him from shoulders up, the audience wouldn't be able to see his logo, but his costume, hair-style, and behavior should be MORE than enough to cue the audience to who he is. Show him from the back, as much as you want, and there's nothing that can be trademarked. I'm pretty sure the same strategy could be applied to any superhero. Just don't say their name or use any trademarked logos.

Disclaimer: I'm not a lawyer, blah blah blah.
 
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Any advice on actually using this superhero in the film?
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My advice: Don't.

Would using the superhero in this way be considered parody or fair use?
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Is it a parody of that actual character, or just a comedy kind of thing that uses that character? The first might play, the latter probably wouldn't. Read further.

If that's the case, I think the solution is really simple. You just never mention the superhero's name, and you don't use any trademarked logos. Let's say, hypothetically, you want to use Superman. If you show him from shoulders up, the audience wouldn't be able to see his logo, but his costume, hair-style, and behavior should be MORE than enough to cue the audience to who he is. Show him from the back, as much as you want, and there's nothing that can be trademarked. I'm pretty sure the same strategy could be applied to any superhero. Just don't say their name or use any trademarked logos.
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This is always a possibility. No one has the monopoly on spandex.

It can though come down to intent. Since this idea is posted on the internet and is rather traceable, following these instructions may show intent on your part to use someone elses intellectual property. It'd be safer not to follow your concept. Even if you follow the letter of the law, it cannot guarantee that you won't get sued. It's safer to steer clear of litigious companies that constantly go to court to protect their property.

Though, it can also come down to how you plan to use. If you're planning on only releasing on youtube without monetization as some fan fiction, you're likely to be safe so long as you don't defame or devalue their intellectual property.
 
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Pay for the counsel of an entertainment attorney.
Then it will be the difference in cost between your attorney and that of the copyright owner's attorney when they start arguing.

Frankly, I can pretty much front porch guarantee you it isn't worth the hassle in time or money, all good chuckles at your final product aside.
 
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Cracker Funk said:
I'm not sure if this is what you have in mind, but I'm envisioning something similar to the scenes in which our hero talks to Elvis, in True Romance.

If that's the case, I think the solution is really simple. You just never mention the superhero's name, and you don't use any trademarked logos. Let's say, hypothetically, you want to use Superman. If you show him from shoulders up, the audience wouldn't be able to see his logo, but his costume, hair-style, and behavior should be MORE than enough to cue the audience to who he is. Show him from the back, as much as you want, and there's nothing that can be trademarked. I'm pretty sure the same strategy could be applied to any superhero. Just don't say their name or use any trademarked logos.

Disclaimer: I'm not a lawyer, blah blah blah.
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I'll have to re-watch True Romance. Saw it once years ago but I don't remember how the Elvis thing was handled. Thanks for the suggestion.

And I agree with your advice on how to handle the superhero character too, which , by the way, I don't guess it will give anything away to say that the character in question is Batman. I see his look in this story/film as being true to the 70's-era comic book Batman rather than the molded black latex Batman of the movie franchise.
 
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Seems sort of similar to the film Super, where the main character is inspired to become a vigilante superhero because of some fictional Nathan Fillion guy who appears in his head. Or something like that. I don't remember the plot exactly.

CF's idea is workable. It doesn't even need to be SUPERMANSUPERMANSUPERMAN it could just be obviously a superhero and the effect would still work.
 
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it shouldnt be too hard as long as the hero's name isn't mentioned and the costume has some significant differences (No "S" on Superman's chest, for example.)

If it's batman, model the outfit more on Nic Cage's costume in Kick Ass
 
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why not simply invent your own superhero

if you follow all the generic rules of costume, behavior, etc,
you could use the main character's reaction and dialog to establish pretty quickly that we're dealing
with your story-world's equivalent of super/bat/spider/whatever-man
 
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Paperman was a lot like this. Ryan Reynolds, Emma Stone, Jeff Daniels. Reynolds was daniel's imaginary superhero friends from youth. Put a guy in tights and a cape and everyone will get the idea.
 
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Well, I'm guessing you wouldn't want to show the iconic ears. You could do the Christain Bale voice effects to the hilt with this, though.

How chummy are you with Adam West? Just don't call him CatMan, either-- that's been done before, too:

tumblr_lrvy06b7cT1qcmjxfo1_500.png
 
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Thanks much, guys, for all the advice.

Yeah, if we ever get this film into production I can see how just creating our own superhero might be the way to go. This character only appears in a few scenes, so it might be possible to shoot those scenes twice: once with Batman, once with Superhero X. That way I could edit two versions of the film and see what works best.

I could see where getting permission to use Batman could double or triple the budget of such a production. But then again, maybe not. I feel it would be better to approach the IP owner (Warner Brothers or DC?) with at least rough cut of the film in hand. That way they can see just how he is used (and how little - he's in maybe 5% of the film). I think there are only one or two places in the script where he is actually referred to by name, and there is also a scene in flashback where the main character is 10 years old and is reading the superhero's comic book, but that of course can all be changed.
 
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Mannie Bothans said:
Well, I'm guessing you wouldn't want to show the iconic ears. You could do the Christain Bale voice effects to the hilt with this, though.

How chummy are you with Adam West? Just don't call him CatMan, either-- that's been done before, too:

tumblr_lrvy06b7cT1qcmjxfo1_500.png
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lol @ the cartoon!

The bad part is: catman is also a copyrighted superhero/villain...

Creating a similair hero is probably the safest path.
 
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The problem with creating your own superhero is that the audience doesn't know him and unless you're planning on presenting him, who he is, what he does, what are his powers, his values, his moral code, well unless you do that your superhero means nothing.

When you use someone the audience is acquainted with, they know what it implies for the character. Being a fan of Batman is not the same as being the fan of Superman or Spiderman and is definitely not the same as being a fan of some unknown guy in a costume.

I'd try CF's idea. Don't be scared of studios. Copyright stuff drives me nuts. But Batman might not be the easiest to pull off since his disguise is so characteristic... Superman is the easiest one, you just need a red and blue costume or even just a Clark Kent disguise (it's even more subtle).

Anyway, good luck and yeah take a look at True Romance, I also immediately thought of it when I read your outline.
 
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Dude, Batman would be the easiest of all! You can't trademark an all-black body-armor-suit with a black cape and mask. Shit, you could even add the ears, or at least something hinting at ears. We're not talking about copyright, we're talking about trademark. So don't use the bat-logo, or anything even remotely resembling it.

It's ridiculous how much Big Daddy looks like Batman, in Kick Ass. They even refer to him as the guy that looks like Batman. But he's NOT Batman. He doesn't have the Batman logo. He's just a dude who dresses in all-black body-armor, with a nifty gold utility belt, a black cape, and a black mask, with what appears to be something almost like ears.

Give your character the Big Daddy costume treatment, instruct your actor to speak in Christian Bale's exaggerated gruff-grumble-Batman-speak, and your audience will get it. This wouldn't even need to fall into the fair-use exemptions for copyright, because you won't be using any material that has a copyright on it.

You're fine. Put a fake-Batman in your movie, that sounds awesome!
 
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Fiveacre Films said:
Would using the superhero in this way be considered parody or fair use?
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Parody and fair use would protect you from the CRIMINAL end of copyright laws, but not so much on the CIVIL litigation. You can still claim it, but I can almost assure you the copyright holder probably has a better lawyer and more money than you, so you'll probably lose the case.
 
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