Does copyright cover derivitive work that has been previously copyrighted?

[ksw]

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

I have a question concerning copyright infringement. I sell on Etsy and have recently had another Etsy seller have one of my listings removed claiming that she owns the intellectual property rights to the design in question. Here is the situation:

The artwork that was used for her design was purchased (on Etsy) and remains the intellectual property of the person who first created the art. It is for sale to anyone who wishes to use it under her terms of use. Here is a link to the artwork https://www.etsy.com/listing/236565048. Her terms for use are clearly defined at the bottom of her listing as well as on the additional commercial listing that she offers for commercial use.

The seller that has reported me has added the text "Gypsy Soul" above the bullhead on the artwork and put it on a shirt here: https://www.etsy.com/listing/237134509

Does this seller now own a copyright to the design she has made? I have also purchased that artwork (plus the commercial license) from the original seller, and have added my own "gypsy soul" text and arrow (with a very different font and styling than her text). Even the graphics I purchased of the bull head and florals have been modified and arranged so that they do not look exactly like her bull head and florals.

My question is: Does she have copyright protection on her design (arrangement/concept.. etc..) of adding "gypsy soul" with an arrow above this artwork that she does not own?

Thank you in advance.

 

[justalayman]

The original art rights continue to be owned by the artist. Addition, only, are owned by the artist that created them. Unless the original artist assigns any rights they hold to the new artist, there are essentially two different works with each having their own rights.

 

[ksw]

The original art rights continue to be owned by the artist. Addition, only, are owned by the artist that created them. Unless the original artist assigns any rights they hold to the new artist, there are essentially two different works with each having their own rights.

I am not sure what that means in this case. So if I remove the image that we both purchased, then the text and the arrow below it are copyright (like this)?

Gypsy
(arrow)
Soul


What if I used a different font and a different arrow? The font she used is a free public font btw.

 

[quincy]

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

I have a question concerning copyright infringement. I sell on Etsy and have recently had another Etsy seller have one of my listings removed claiming that she owns the intellectual property rights to the design in question. Here is the situation:

The artwork that was used for her design was purchased (on Etsy) and remains the intellectual property of the person who first created the art. It is for sale to anyone who wishes to use it under her terms of use. Here is a link to the artwork https://www.etsy.com/listing/236565048. Her terms for use are clearly defined at the bottom of her listing as well as on the additional commercial listing that she offers for commercial use.

The seller that has reported me has added the text "Gypsy Soul" above the bullhead on the artwork and put it on a shirt here: https://www.etsy.com/listing/237134509

Does this seller now own a copyright to the design she has made? I have also purchased that artwork (plus the commercial license) from the original seller, and have added my own "gypsy soul" text and arrow (with a very different font and styling than her text). Even the graphics I purchased of the bull head and florals have been modified and arranged so that they do not look exactly like her bull head and florals.

My question is: Does she have copyright protection on her design (arrangement/concept.. etc..) of adding "gypsy soul" with an arrow above this artwork that she does not own?

Thank you in advance.

Creating derivatives of a copyrighted work is one of the exclusive rights held by a copyright holder. In order to use another's copyrighted work to create a derivative, you must obtain the written consent of the copyright owner.

The copyright holder can grant licenses to others to use the copyrighted work in limited ways - perhaps limiting the use to a single work or for a limited time. A license does not transfer any rights in the copyrighted work. The original copyright holder retains all of the exclusive rights unless these rights are specifically transferred in a written and signed transfer agreement which creates a new copyright holder.

If you were granted rights from the copyright holder to use their copyrighted work to create another work using the original work as a foundation, the newly created work is subject to its own copyright.

 

[ksw]

If you were granted rights from the copyright holder to use their copyrighted work to create another work using the original work as a foundation, the newly created work is subject to its own copyright.

The original artist has not granted either of us any rights other than the original license to use the artwork in our own designs. Here is what she said to me in correspondence:

"I own the copyright to the design from the moment it was created and released. For the purposes of defining terms, we should first discuss that a copyright by definition covers an original design from the moment it is created--whether it is made from clip art or hand-drawn by an artist. A copyright is for the arrangement of components that comprise a design. If another artist draws clip art and sells or licenses it to me, I still am the owner of the copyright of the arrangement/design in its entirety. I may not "own" the pieces of clip art, but I own the design itself, which is an original arrangement of parts."

According to what you have said, this statement is not true. Correct?

 

[quincy]

The original artist has not granted either of us any rights other than the original license to use the artwork in our own designs. Here is what she said to me in correspondence:

"I own the copyright to the design from the moment it was created and released. For the purposes of defining terms, we should first discuss that a copyright by definition covers an original design from the moment it is created--whether it is made from clip art or hand-drawn by an artist. A copyright is for the arrangement of components that comprise a design. If another artist draws clip art and sells or licenses it to me, I still am the owner of the copyright of the arrangement/design in its entirety. I may not "own" the pieces of clip art, but I own the design itself, which is an original arrangement of parts."

According to what you have said, this statement is not true. Correct?

I have no idea what the original artist is trying to say.

Unless one or more of the exclusive rights held by a copyright holder are transferred to someone else, in writing and personally signed away by the copyright holder, there is no change in copyright ownership. The exclusive rights remain with the original copyright holder.

The copyright holder can grant others a license to use the copyrighted work but a license does not transfer ownership in the original.

The terms of the license govern what can and cannot be done with the rights-protected work.

 

[ksw]

I have no idea what the original artist is trying to say

Thank you for your help. I apologize for wording that so badly. Does this clarify it?

The original artist has not granted either of us any rights other than the original license to use the artwork in our own designs. The original artist is not involved in this claim at all. The statement I quoted was from the claimant, not the original artist, after having my listing removed for copyright infringement.

I am assuming that if the claimant now contacts the original artist to secure copyright of her derivative design, this will cost her some cash and would likely not be granted due to the fact that the original artwork is being widely distributed for sale with commercial license for use.

 

[quincy]

Thank you for your help. I apologize for wording that so badly. Does this clarify it?

The original artist has not granted either of us any rights other than the original license to use the artwork in our own designs. The original artist is not involved in this claim at all. The statement I quoted was from the claimant, not the original artist, after having my listing removed for copyright infringement.

I am assuming that if the claimant now contacts the original artist to secure copyright of her derivative design, this will cost her some cash and would likely not be granted due to the fact that the original artwork is being widely distributed for sale with commercial license for use.

If you copied the other artist's work (words, layout, colors, whatever), the other artist could have a claim against you but not over use of the underlying copyrighted work if you both obtained licenses to use the work from the original author.

You might want to have the licenses and both your use of the copyrighted work and the other artist's use of the copyrighted work personally reviewed by an IP professional in your area.

 

[ksw]

If you copied the other artist's work (words, layout, colors, whatever), the other artist could have a claim against you but not over use of the underlying copyrighted work if you both obtained licenses to use the work from the original author.

You might want to have the licenses and both your use of the copyrighted work and the other artist's use of the copyrighted work personally reviewed by an IP professional in your area.

I did use the exact words as the claimant: "Gypsy Soul". There is no trademark registered for that phrase. The layout is very similar to hers (the wording is placed over the top of the original artwork and includes a tribal type arrow). However the font style and colors of the added design are completely different than hers. The font she used (which is the major part of her addition to the original design) is a very whimsical styled free public font (from dafont.com). My font looks very different and has very different colors. I have also added many new embellishments to the original artwork behind the image so that even the original artwork varies from her design. I don't see a way to attach an image here?

So the layout would be the main concern here. I did not realize you can copyright a layout under these circumstances.

One thing to note is that Etsy (and most marketplaces) will deactivate any listing after receiving a notice of copyright infringement. I submitted a DMCA counter notice, and the claimant has 10 days to submit an action seeking a court order against me.

I have no desire to infringe on the legal copyright of another person's work. I put a lot of effort into my design to make it unique. She is basically stating that I can not use the design since she owns it. It is all very confusing to me!

 

[ksw]

You might want to have the licenses and both your use of the copyrighted work and the other artist's use of the copyrighted work personally reviewed by an IP professional in your area.

I am contacting an IP Attorney. Thank you for your help.

 

[quincy]

I did use the exact words as the claimant: "Gypsy Soul". There is no trademark registered for that phrase. The layout is very similar to hers (the wording is placed over the top of the original artwork and includes a tribal type arrow). However the font style and colors of the added design are completely different than hers. The font she used (which is the major part of her addition to the original design) is a very whimsical styled free public font (from dafont.com). My font looks very different and has very different colors. I have also added many new embellishments to the original artwork behind the image so that even the original artwork varies from her design. I don't see a way to attach an image here?

So the layout would be the main concern here. I did not realize you can copyright a layout under these circumstances.

One thing to note is that Etsy (and most marketplaces) will deactivate any listing after receiving a notice of copyright infringement. I submitted a DMCA counter notice, and the claimant has 10 days to submit an action seeking a court order against me.

I have no desire to infringe on the legal copyright of another person's work. I put a lot of effort into my design to make it unique. She is basically stating that I can not use the design since she owns it. It is all very confusing to me!

It is good to hear that you have no intention of infringing on anyone's rights and I think you are smart to seek a personal review by an IP attorney in your area. This forum does not allow for image attachments or for personal reviews.

I am not sure what the other artist is planning with the use of "Gypsy Soul" but it is important to remember that trademarks do not need to be registered in the U.S. for a name or phrase to be protected under state and federal trademark laws.

Again, taking your license and your work in for a personal review and a comparison to the other artist's work and the original work will be the best way for you to determine where you stand legally with the copyrights. Good luck.

 

[ksw]

It is good to hear that you have no intention of infringing on anyone's rights and I think you are smart to seek a personal review by an IP attorney in your area. This forum does not allow for image attachments or for personal reviews.

I am not sure what the other artist is planning with the use of "Gypsy Soul" but it is important to remember that trademarks do not need to be registered in the U.S. for a name or phrase to be protected under state and federal trademark laws.

Again, taking your license and your work in for a personal review and a comparison to the other artist's work and the original work will be the best way for you to determine where you stand legally with the copyrights. Good luck.

Thanks, her claim thusfar is with copyright, not trademark. She admits to not owning any of the elements in her design (the clipart, fonts, etc). Her claim is to the "arrangement of the elements" in her design.

For example, if she had purchased a license and permission from Disney to use a certain Mickey Mouse ears clipart, and she made a design with the phrase "Are you a man or a mouse" and placed an arrow under it, and then placed them over the top of the Mickey Mouse ears, would she now own copyright to this design? So that if someone else licensed the same Mickey Mouse clipart, they could not put "Are you a man or a mouse" (different font and color) with an arrow, placed over the top of the Mickey Mouse ears in their own design. Her "arrangement of elements" is her copyright claim.

This seemed like it should be a straightforward answer but I guess in the end a judge is the only one who can decide.

 

[quincy]

Thanks, her claim thusfar is with copyright, not trademark. She admits to not owning any of the elements in her design (the clipart, fonts, etc). Her claim is to the "arrangement of the elements" in her design.

For example, if she had purchased a license and permission from Disney to use a certain Mickey Mouse ears clipart, and she made a design with the phrase "Are you a man or a mouse" and placed an arrow under it, and then placed them over the top of the Mickey Mouse ears, would she now own copyright to this design? So that if someone else licensed the same Mickey Mouse clipart, they could not put "Are you a man or a mouse" (different font and color) with an arrow, placed over the top of the Mickey Mouse ears in their own design. Her "arrangement of elements" is her copyright claim.

This seemed like it should be a straightforward answer but I guess in the end a judge is the only one who can decide.

No one can own another's copyrighted work without the copyright holder expressly signing away these rights through a transfer of rights agreement. These transfers must be in writing and hand-signed by the copyright holder.

Without a transfer of rights from the original copyright holder to another (a transfer of one or more of the exclusive rights), the most that another individual can get is a license from the copyright holder to use the work.

Licenses can be designed to fit the wants and needs of the parties. The license can limit the type of use (commercial or personal use only), the payment (flat fee or royalties), whatever.

You will want your license reviewed as that is what governs your use of the original image and you will want both your use of this image and the other artist's use of the image compared.

Good luck.