Questions about showing art online

[michaeltech]

What is the name of your state (only U.S. law)? California

I have some questions regarding artwork that I created long ago. I would like to display this art on my online portfolio but I do not want to be violating any copyright or trademark laws by doing so.

1. When I was young I would practice drawing by copying art from comic book covers. I have some very nice pencil drawings of characters like Spiderman, Wolverine, even movie characters like Freddy Krueger. Now I realize that these characters are owned by Marvel but I'd like to be able to display this early artwork as part of my portfolio. Would I be violating laws by doing so?

From what I read these may be considered derivative works. They are indeed copies - not photo copies but hand drawings made to look like the originals with my own technique added in. This is something very common of artists when they are learning to draw, and you can find images from other artists just like this all over the Internet. I'm not looking to make money from the art. I'm not trying to sell prints or anything like that, and I wouldn't mind crediting the original sources of the work (most realize who owns these characters these days anyway), but would I still be violating copyright laws if I were to scan these and include them as part of an online portfolio of early works?

2. On that same note, how does the law apply to a hand drawn picture of a television or movie actor? Would I have any rights to the ownership of the art even if the subject of the art is a person in a television show or a movie? Or what if I were to PAUSE a movie and draw the scene as seen on screen, or the characters I see. Do I not own the copyright of that drawing?

3. Lastly, if an artist draws a model (like many artists do - caricature artists come to mind) is the artist not the copyright owner of the artwork? Or does the subject of the art - if it's a real person - have rights to the image because it is of their likeness? I remember in art school we would draw live models. Who owns the copyright to such work? The artist or the subject?

Thanks for your help. I've wondered about this for a while and even though I've read many documents from the copyright and trademark offices I have never had these questions answered to my satisfaction.

 

[FlyingRon]

If they are literal copies (rather than you just drawing similar characters), they probably aren't even derivative works, but outright copies. In a derivative work, you'd have some creative element of your own that you added (in addition to being subject to the original copyright).

Not that the above distinction matters. Just making the copy is technically illegal, though I doubt anybody is going to get worked up over you keeping your own copy in a portfolio. Crediting the work is more of an academic honesty thing, it does NOTHING to make the copys more legitimate (unless the original copyright holder wants the credit as part of their license to you). Obviously copying the copies (either scanning or just dropping them in the old Xerox) are additional illicit copies.

Drawing pictures of people or situations that were in a movie are not copyright issues. You don't get copyright to your likeness. However, people have rights to their fame, so if you were going to make use of this in some commercial fashion you might run afoul of using their likenesses. Similarly, some characters might have trademark rights that preclude you from exploiting them commercially. This covers questions #2 and #3. While the copyrights are yours because you created the artistic work, it would behoove you to have permission from celebrities and releases from others before you commercially use any depiction of a real person.

You didn't ask, but since you mentioned charicture artists, note that if you are working for hire for someone the rights belong to the one that hires you. Now the law pretty much sides with the artist if there is any ambiguity as to whether it's a work for hire or not, but if you're receiving money for doing a piece, it would behoove you again to clearly state what rights the person paying you has to the work.

 

[michaeltech]

If they are literal copies (rather than you just drawing similar characters), they probably aren't even derivative works, but outright copies. In a derivative work, you'd have some creative element of your own that you added (in addition to being subject to the original copyright).

Which is why I believe it may be considered a derivative. There are plenty of creative elements of my own added in the form of different shading, alternative details and more technical differences that could be argued. It's clear by looking at the original and my "copy" that they are not identical but close.

Not that the above distinction matters. Just making the copy is technically illegal, though I doubt anybody is going to get worked up over you keeping your own copy in a portfolio. Crediting the work is more of an academic honesty thing, it does NOTHING to make the copys more legitimate (unless the original copyright holder wants the credit as part of their license to you). Obviously copying the copies (either scanning or just dropping them in the old Xerox) are additional illicit copies.

I agree with you here. I really doubt anyone would care as long as I'm not trying to profit from it by selling prints or some other way.

Drawing pictures of people or situations that were in a movie are not copyright issues. You don't get copyright to your likeness. However, people have rights to their fame, so if you were going to make use of this in some commercial fashion you might run afoul of using their likenesses.

So as long as I'm only doing this to show a level of skill, and not for profit, I should be fine. So if i were to upload an image of my own "copy" of spiderman to my online portfolio... and someone steals that image and reuploads it onto their own website... do I have any right to demand that image be taken down? According to what you've said I don't have any copyright to the image even though I made it with my own hand and it's slightly different than the original... if I found it on someone else's website they have just as much right to show it off as I do. Is this correct?

Similarly, some characters might have trademark rights that preclude you from exploiting them commercially. This covers questions #2 and #3. While the copyrights are yours because you created the artistic work, it would behoove you to have permission from celebrities and releases from others before you commercially use any depiction of a real person.

You didn't ask, but since you mentioned charicture artists, note that if you are working for hire for someone the rights belong to the one that hires you. Now the law pretty much sides with the artist if there is any ambiguity as to whether it's a work for hire or not, but if you're receiving money for doing a piece, it would behoove you again to clearly state what rights the person paying you has to the work.

Yes, I'm aware of the differences regarding a work-for-hire. Since you brought this up it brings another question to mind. In the case of a caricature artist, who owns the right to the work? If an artist is standing at a street corner and someone comes up and pays that artist to draw their portrait, are they not doing it on a work-for-hire basis? Does that mean the subject owns the rights to the image and can reproduce or do what they want with the image? And further, does that mean the caricature artist cannot make copies of the work or showcase it in his/her portfolio? Just curious here how this would play out. This is, of course, assuming no agreements have been made dictating otherwise.

Thanks for your help and feedback. It's been helpful.

 

[quincy]

Which is why I believe it may be considered a derivative. There are plenty of creative elements of my own added in the form of different shading, alternative details and more technical differences that could be argued. It's clear by looking at the original and my "copy" that they are not identical but close.

Making derivatives is one of the exclusive rights of the copyright holder so taking another's copyrighted character and copying it, even if you add different shading, alternative and technical details, and your own personal touches, you are infringing on the rights of the copyright holder.

In other words, arguing that your drawings are derivatives will support any copyright holder's claims against you.

So as long as I'm only doing this to show a level of skill, and not for profit, I should be fine.

I don't think that is what FlyingRon said.

So if i were to upload an image of my own "copy" of spiderman to my online portfolio... and someone steals that image and reuploads it onto their own website... do I have any right to demand that image be taken down? According to what you've said I don't have any copyright to the image even though I made it with my own hand and it's slightly different than the original... if I found it on someone else's website they have just as much right to show it off as I do. Is this correct?

You do not own the original and you are infringing on the rights in the original. Anyone who takes your drawing for display on their own website would also be infringing on the original's copyright and could be held liable.

Yes, I'm aware of the differences regarding a work-for-hire. Since you brought this up it brings another question to mind. In the case of a caricature artist, who owns the right to the work? If an artist is standing at a street corner and someone comes up and pays that artist to draw their portrait, are they not doing it on a work-for-hire basis? Does that mean the subject owns the rights to the image and can reproduce or do what they want with the image? And further, does that mean the caricature artist cannot make copies of the work or showcase it in his/her portfolio? Just curious here how this would play out. This is, of course, assuming no agreements have been made dictating otherwise.

It depends on the particular facts. Just because someone asks an artist to draw a picture does not mean that there has been any transfer of rights in the drawing from the artist to the person requesting the drawing. Work for hire works have certain criteria that must be met in order for the rights in the work to belong to someone other than the creator of the work. The street artist is not giving the purchaser any rights to copy the work he creates. The purchaser is purchasing only the single drawing and nothing more.



With all of that said, many comic book characters are trademarked. Trademark laws differ significantly from copyright laws. If a comic character is covered by trademark only (with the copyright now expired), you would be concerned about confusing consumers into thinking your drawings were sponsored by or endorsed by or otherwise connected with the trademark holder. If no such confusion exists, and your drawings cannot be seen to dilute the value of the trademark in any way, and if you are not trying to profit off your depictions, then a trademark holder may send you a cease and desist, requesting that you remove from display all artwork displaying their trademark, but an infringement lawsuit is unlikely. The costs outweigh the benefits.

For a good example of artwork based on comic book and cartoon characters, you can check out the online display of Nina Levy's napkins that she created for her children. Another forum member (justalayman) and I discussed her work not too long ago. Levy's napkins feature her interpretations of trademarked characters or use recognizable features of the trademarks. She, like you, has no intent to profit off her drawings. To my knowledge, she has not been approached by any trademark holder and asked to remove her napkins from her blog site.

You are more likely to find risk using registered copyrighted characters in a noncommercial way (because there are statutory damages available to collect from infringers) than when using registered trademarks in a noncommercial way - although trademark owners can be aggressive when protecting their rights in their marks.

If you are unsure whether to publish your work on your website, you might want to show exactly what you have created to an attorney in your area. Because all of law operates on the specific facts that are presented in any one case, a personal review of your specific facts is the best way to determine what you can safely risk and what you should avoid when displaying your artwork.

Good luck.