Witchdoctor comics trademark/copyright

[AndyJ]

Hi Brenyo,
Unfortunately neither of those links worked for me, even with the space removed.
However you probably need to change your image enough so that anyone seeing it is not immediately reminded of the witchdoctor character.
As you have correctly identified there could be both trade mark and copyright protection involved here, although a quick check of the IPO trade mark register has failed to find a UK registration either for the witchdoctor character alone or witchdoctor comics.
When it comes to copyright, the courts look to see if a substantial part of the original image has been copied. This is measured in qualitative terms, in other words whether the essence or heart of the original has been re-used. So this is why I say you should consider altering your image so as not to invoke an immediate recognition of the witchdoctor, since this might indicate that you have copied the essence of the original. Of course, it may be that you want people to think of the witchdoctor series when they see your product, in which case you run the risk of being accused of passing-off, ie trying to free-ride on the goodwill associated with the cartoon character, and maybe you would be happy for people to conclude that your product is somehow connected to the witchdoctor series, even if it isn't.
For an example of how the courts tend to treat this sort of conscious 'nearly but not completely' copying, take a look at a recent dispute known as the Red Bus case.

[CopyrightAid]

I have updated the links in the earlier post - so that should make things easier.

For what it is worth.. The faces of both characters are pretty much the same i.e. it is clear you have copied (albeit re-drawn) the face from the first image.

[AndyJ]

Hi Brenyo,
Now that I've seen the two images, thanks to CopyrightAid's assistance, I think he's right about the main features of the face being pretty much the same.
Since you obviously have artistic talent, I think it is worth coming up with a new face and retaining any of the other 'mad scientist' features of your first drawing which you think are appropriate for your product.

[CliveB]

Ok, we will draw a new face, thank you Andy & CopyrightAid!

I cannot tell exactly what you have done here, but it very much looks to me as though you have taken the original Witchdoctor image and changed a few details in Photoshop - ie you have worked into the original.

I know that there is a common myth that goes around the design industry: "change seven things and it's not infringing", but that is just not true.

What you have created is a derivative work. Because your intention now is to create a different work, that is derivative in its idea, rather than its expression, you stand a good chance of running into the trap set by the Red Bus case that AndyJ has already mentioned. Effectively, because your intent is to copy, then whatever you produce will be infringing - where someone else who produced the same work without that intent would not be infringing.

Good luck finding your way out of that particular mess.

[CliveB]

I can’t really tell you whether that is infringing or not (only a judge can do that). If you'd never seen the original witchdoctor character, then the chances are that you are not infringing.

Taking into account the Red Bus case, and your intent to copy the original, I'd say that there was a risk that you could be found to be infringing.