Derivative work and Copyright

[remi]

Hi MarkMyWords, if I understand you right you're saying that's allowed to sell such stuff? I don't think so. It's not allowed to _sell_ such a work. Selling is publication. That's the worst you can do.

It's also not allowed to print Walt Disney motives on T-Shirts and sell them on the market (without a valid license from Walt Disney for doing this).

Remi

[handrawn]

because printing on t-shirts is 'merchandising' - and that is going to get you into trouble for sure

but creating your own copy using your own skills as a 'work of art' and selling that original as such is allowable [in UK] - trust me on this one, I've done it....

what you must NOT do is use it for any 'purpose' because that it Disney's [secondary] right - this is the point Mark is making I think...

[remi]

This is a complicated issue and I think there are a few links necessary to further illuminate this issue.

The details of the Wikipedia article about "Fair use" are interesting, but unfortunately the situation in the UK isn't explained in detail:
http://en.wikipedia.org/wiki/Fair_use

Remi

[MarkMyWords]

To be honest, I only mentioned this as a curiosity of the copyright law, I doubt many here will be pursuing a career as a copyist. The market stall example is, as Steve says merchandising and is also public display and distribution. Of course, display and distribution could be argued to be happening in fine art galleries, but I'm not so expert in law as to tell you why this does not attract legal attention so often, though it has - from Disney (who else), unsuccessfully, I believe. Perhaps distribution only covers several copies?

[mikeinreality]

As a patent attorney (with a designer for a wife, thus my forrest gumping my way along this page), I can tell you this is a great series of questions you have posed. However, it is also very easy to answer:

Whenever you take an existing image and modify it to create a different image, you are making a "derivative work." For example, you might composite several images in the darkroom, or you might use Photoshop’s tools to distort a digital photo. Another kind of derivative is the compilation, such as a coffee-table book.

In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.

If your changes differ in some significant parts, the new work is yours and allowed to be copyrighted; however, the original pieces that you have used are still also copyrighted and you need permission.

Thus, if you are building on the work of others, you must obtain permission (unless the original is in the public domain) and you must respect any limitations that the respective owners of the originals may impose.

Moreover, there are some circumstances where you don’t need the blessing of the original copyright holder, such as for a parody or other fair use. However, you can expect some hostility if you take this route, and you should probably consult a lawyer early on.

The law holds that there can be original authorship if the derivative contains a significant amount of new material or is sufficiently different that it can be regarded as a new work. For instance, in a coffee-table book, the selection and arrangement of the photos is considered “new material” that is worthy of copyright. If there is a new copyright, it covers only the aspects that are original. Thus, the book’s copyright doesn’t affect the copyrights of the photos. In other words, the original work is still also protected even though modified.

In short, even though your derivative work is entitled to its own copyright, you must reveal the work’s ancestry when you register.

[James Allen]

There have been some very good points made here regarding tracing, copying and copyright law, etc.

If a person plucks an image of mine from the internet and reproduces it, and displays it on their own page, it will be assumed by many that the image was designed by them. Even if they are not selling the image, it will affect me, because if my customers see that image they may think I stole the image I am displaying.

I have lost count of the number of times I have had to threaten site owners with legal action because they displayed my images or close copies of them. They often use the excuse that they didn’t specifically say the artwork was theirs, but that is a lame excuse. Obviously most people will assume it is theirs since they gave no credit to anyone else.

I sued an advertising company for using one of my cartoon strip characters in an advertising campaign. They used the excuse that they had changed my character’s design. My barrister pointed out that the creator of Popeye had sued a popsicle manufacturer in the 40’s and the Scottish judge had ruled that even though the popsicle had been changed, it was still enough like Popeye to have infringed copyright. I won that case. The idiots who owned that advertising agency lost their agency and a vineyard, and went bankrupt, all because they figured they could get away with stealing ideas by changing them a little.

When designing images there is nothing wrong with looking at others for inspiration. The finished design should be original though – a result of what was learned through observation. While it is true that most people who copy an image and display it will probably get away with it, they should always point to the original source, even if only for their own reputation’s sake. It will also probably keep the real owners off their back.

[gwpriester]

Welcome to TalkGraphics mikeinreality

I agree with you. As long as an infringed artist can prove a derivative work was created from or of her or his work, you are on a slippery slope. Even if as in the landmark case of Jeff Koons who had bronze statues made from a postcard photographic image by Art Rogers, there was enough evidence of copyright infringement to find Koons guilty. Koons was ordered to turn over the remaining two statues to Rogers. As far as I know however, he never did.

My wife wrote a book, Electronic Highway Robbery - An artist's guide to copyrights in the digital era. The book was written over 10 years ago and may be out of date at this point.

Great cover!

[James Allen]

Heh heh. I notice you didn't mention your relationship in your review, Gary. No criticism - just saying. I had a laugh when I got to the bottom and saw your name.

http://www.amazon.com/Electronic-Hig...owViewpoints=1

[gray]

Copyrights always a good and timely topic. All good points made. Another minefield for copyright is subject matter. Try doing some illustrations or art works for NASCAR topics and see how far you get. There's a long list of subjects not allowable in your original artworks.