I was at dinner with some artist friends recently, and they were talking about copyright stuff. That's because one of them is in an art show where everyone is making paintings and sculptures based upon Peter Pan. And they were discussing whether or not a copyright violation could be claimed about a painting using the character of Peter Pan, or a scene from the story.
Now, this is a pretty thorny subject, because I believe it is open for interpretation. You see, Peter Pan, like Superman, is still under copyright (despite being quite old enough to have otherwise fallen into the public domain), but it's such a big cultural thing that I believe it could be argued that putting him in an original artwork is akin to exhibiting photos of a celebrity. But even if someone objected, I suggested a possible way of deflecting accusations of copyright infringement: Say it's not Peter Pan, but rather, Peter Pan's brother: Paul Pan.
Peter and Paul Pan are twin brothers, and you know how twins are: they look alike, they dress alike all the time, etc. And so it's not violating the copyright of Peter Pan, because it's not a painting of Peter Pan: it's Paul Pan, and he just looks like Peter Pan because he's his brother, but he's a different person altogether. And the guy who wrote Peter Pan is long dead, so how can you prove he didn't conceive of Peter Pan as having a twin brother, but that he simply forgot to tell everyone about it? (Can you see someone actually arguing this case in court? That would be fun.)
And if that doesn't work, then maybe this guy Paul Pan isn't really Peter Pan's brother, but he's just a celebrity lookalike who dresses up like Peter Pan as a job, like the guys on Hollywood Boulevard do, dressing up as Superman, etc., to earn money from tourists, etc. So even in that case, the guy in the painting may look just like Peter Pan, but it's actually just a really big fan who looks like him and likes to dress up as him, and so it's not really Peter Pan in the painting, so it's not copyright infringement. And if that doesn't work, then how about saying it's a portrait of a kid in a Halloween costume, or a kid in a school play version of Peter Pan, and it's a painting of the actor, and not of the character? Surely we're allowed to paint a kid in a play in costume, right? Or can't we even do that anymore without getting sued for copyright infringement?
Or, how about this: Before you paint a picture of Peter Pan, write and copyright a script of a story of someone painting a picture of Peter Pan for an art show, and then they get sued for copyright infringement. And if you get sued, then you could countersue the people suing you, and claim that their lawsuit is infringing on the story/script you copyrighted about someone suing someone for painting a picture of Peter Pan for an art show, and so they're violating your copyright too. (Now wouldn't that be a fun strategy?)
BTW: This is all hypothetical and academic anyway, because it would be silly for someone to sue a painter for painting a picture of Peter Pan or related to Peter Pan, because such an art work would be free advertising and publicity for Peter Pan, and it would make the people suing look like jerks (although bad press and senseless arguments do not always stop people from suing over such things). Only if the painting does something to soil the reputation of a copyrighted work or character would it make sense to sue over something like that, I'd think. Or, obviously, if it's mass-produced and sold without being licensed; but a one-off artwork, unless it's for millions of dollars, shouldn't even be on the radar, I shouldn't think. And artistic license and fair use should extend to paintings, I should think, within reason. (But corporate lawyers can get bored, and the top brass does not always know what they're up to, apparently; so silly lawsuits over such things can occur on occasion.)
