Anatomy & Poses?

[JessKitt-08]

What is the name of your state (only U.S. law)? Wyoming
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Issue aroused through an online art site. An administrator has been repeatedly bothering me for the past year about the copyright issues on some of my artwork. For some things I go back to nature to look for a random pose. Now, the issue is that the artwork violates the copyright law because I'm stealing the pose and anatomy from a REAL photo of a REAL animal. I'm not re-creating the photos, just using the poses of the animals for my OWN personal characters or for someone else's character. Backgrounds are either not included or look nothing like the photo. Anatomy is changed and never 100% dead on to the photograph itself. The pose is.

So the question is, can you actually go out of your way to copyright anatomy of a real animal or object that occurs in nature? Can you also copyright the exact pose of that animal/object from nature? These are things that occur over and over again in nature. How can ONE person own the anatomy to a wolf, for example? So anyone who dares to draw a wolf will have to answer to this person? How can you copyright a pose of a dog just standing there? Is it not possible for another dog to stand in the same position and for a person to take a photo of that?

The photograph itself can be copyrighted, BUT I'm 99% sure you cannot copyright the anatomy of an animal, nor the pose it's in. Using the pose from the photograph should NEVER be a legal issue and I don't think it's very legal nor fair that I'm being threatened by an administrator over and over again for the SAME thing. The site owner has been contacted several times about the issue but seems to refuse to do anything about it (he has a rep for being a lazy owner who lets everything slide).

Should I have to take the threats and harassment from the admin over the issue?

 

[BasesLoaded]

http://forums.furaffinity.net/showthread.php?t=41776 has more information regarding this particular situation, so that advice can be correctly given in context.

 

[>Charlotte<]

The administrator can require whatever he or she wants as a condition of your participation on the site. If you are required to cite sources for your "artwork" or risk being banned from the site, they can do that. If you are required to pat your head and rub your tummy while singing Monty Python's "Lumberjack Song" or risk being banned, they can do that, too. Their site, their rules. Play by their rules, or get booted.

 

[quincy]

I agree with Charlotte that you must abide by the rules of the site or risk being banned from the site.

As for whether animal poses can be copyrighted, it depends. You may want to review the numerous Koons lawsuits that are based on his artwork's similarity to copyrighted works. In one of the lawsuits (which he lost), he copied the position of dogs in a copyrighted photograph for a sculpture he created (actually he copied the entire photograph) and he was found to be infringing on the rights of the photographer.

If your drawings imitate or are substantially similar to a copyrighted work, an infringement suit is possible. Whether the action taken against you would be a winnable one or not depends on a lot of different factors that the court would take into consideration when making their decision.

Drawing a picture of a dog that you see and which, unintentionally, is posed in a similar fashion to a photograph of a dog would probably not win the photographer in question any infringement suit. You are free to create a work that is independent of all influence and created when you have not made intentional reference to another's work. The similarities between the works happen to be, in other words, a fluke.

Intentionally copying any part of a copyrighted work, however, opens you up to potential legal action, even if what is copied happens to be only the particular pose of an animal in a copyrighted work.

Edit to add: After viewing one of the photographs, and your drawing depicting the animal photographed, it is entirely possible that your drawing could be considered a "derivative" of the copyrighted photo and that the photographer could have a legitimate and winnable infringement suit against you.

 

[>Charlotte<]

Quincy, I (against my better judgement) visited the link that was provided and found that someone has done several overlays of OP's drawings against the photographs in question. It's obvous that OP's art is directly traced, and doesn't just happen to be a drawing of, for instance, a Siberian Husky lying down that resembles a photo of a Husky lying down.

I think what you have advised along with the evidence indicates that this is, clearly, copyright infringement. Please correct me if I'm wrong, for OP's benefit (and mine).

Also, although copyright infringement is the underlying issue, the main point of contention seems to be JessKitt's resistance to being banned from the site. Again, JessKit, they don't need legal justification to ban you.

 

[justalayman]

Monty Python's "Lumberjack Song" (partial)

I cut down trees, I skip and jump
I like to press wild flowers.
I put on women's clothing and hang around in bars.

Mounties:
He cuts down trees, he skips and jumps
He likes to press wild flowers.
He puts on women's clothing and hangs around in bars.

Chorus:
He's a lumberjack and he's OK
He sleeps all night and he works all day.

I cut down trees, I wear high heels
Suspendies and a bra.
I wish I'd been a girlie, just like my dear pappa.

I do not believe there is any copyright infringement. You can take a pic of a pic and it not be copyright infringement, sometimes. This isn't even close to that but I could be wrong.

Haven't seen divgradcurl around lately but he would be the guy for the best answer.

 

[quincy]

I think our posts overlapped, Charlotte. I visited the site and agree that it looks very much like the drawings infringe on the photos and that the banning from the website should be the least of JessKitt's worries.

Because JessKitt ignored the initial attempts by the website to regulate her drawings, she could be found guilty of willful infringement. Actual damages, profits, and statutory damages could be awarded, should the photographer decide to sue. An intentional infringer may have to pay as much as $150,000 per work infringed.

I don't see how you conclude this is not infringement, justalayman. You cannot take "a pic of a pic" without infringing on the rights of the copyright holder.



(by the way, by referencing Monty Python's "The Lumberjack Song," are you trying to tell us that you have "buttered scones for tea" ??? ) (not that that is not okay. . .)

 

[justalayman]

whoops, went and viewed a few more. Some of them are apparently direct imitations of drawing by others. I believe those would be problematic.

and after a bit more research, it would seem quite simply that a painting that is a direct copy of a photo is an infringement as well.

my apologies to the both of you (quincy and charlotte)

 

[justalayman]

so, to address the OP;

if the "pose" is clearly a copy of the original, then, while the pose or position itself is not copyrightable, the positioning of the animal from the perspective it is seen in as well as the animal itself combined is copyrightable. As such, your drawing imitate those particular pictures closely enough that it is unmistakable your artwork is meant to copy the original pictures.



quincy, do you have any idea what a scone is? I've never experienced them myself althoug the high heels...


well, we won't go there.

 

[quincy]

No apology requested or required, justalayman. Even courts argue over whether something is infringing or not. This case, however, seems to weigh pretty heavily on the side of infringement.

As for scones, I have never had one, have no idea what they are, even, but I would probably want mine buttered anyway (regardless of the implications ).

 

[>Charlotte<]

You only owe me an apology because now I can't get The Lumberjack Song out of my head.

Scones are, essentially, biscuits. English biscuits, hence the tradition of "tea and scones". They're a little denser and sweeter than American biscuits. Yummy as all get-out. Seriously, next time you're in a place that sells them, try a blueberry scone with butter or a cranberry scone with marmelade, with a really good, strong, cup of coffee. To prevent any erosion of masculinity, you may belch liberally and scratch your butt while you eat one. Cursing is optional, but is generally frowned upon in some of the more refined coffee houses.

ETA: Dammit. Now I keep singing that stupid song and I want a scone.

 

[justalayman]

just in case nobody has experienced this musical masterpiece, here it is:

YouTube - Lumber jack song

 

[quincy]

I have a feeling both justalayman and I will belch frequently and have our coffee very strong if we choose to eat scones with marmalade.