Infringement when making something that isn't available otherwise?

[maneki]

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

I've been receiving differing advice about this so I wanted to try and see what really is the deal.

I recently opened a small online store making wedding invitations. I know that I can't use a copyrighted image directly in my designs, no problem there. The conflicting info I'm receiving though is regarding "inspired" images, specifically on products that aren't already being sold. The three bits I've been told are:

1. Even if I create an image myself that is inspired or based on a copyrighted image I can't use it, period.
2. I can use it as long as it's on a product that isn't already being sold.
3. As long as I've created the image then I can use it on anything.

I don't know how to tell what the truth of it is and I don't want to create anything and end up in trouble over it. I do have several designs that I would like to use on wedding invitations though, which aren't already available through any "official" channels that I've found. I'm hoping someone here can help me figure this out. Thanks!

*Edit to add - Also would any of this make be different since I will be selling internationally? I know laws can be different based on country. Thanks.

 

[justalayman]

1. Even if I create an image myself that is inspired or based on a copyrighted image I can't use it, period.

that is not easy to answer. It involves derivative works. Here is a link to a copyright office publication that speaks to the issue:

http://www.copyright.gov/circs/circ14.pdf

2. I can use it as long as it's on a product that isn't already being sold.

false. art is covered by copyrights upon it being produced in a tangible form. In other words; ideas are not covered by copyright but once the idea is drawn, painted, whatever, copyrights attach.

3. As long as I've created the image then I can use it on anything.

as long as it is an original work and not a copy or a derivative of another's work

 

[maneki]

I've read through that link and I'm still confused. So let's use the Tardis from Doctor Who as an example. If I were to draw a Tardis based on the original design, but did it all my own, is that derivative because I drew it myself and therefore it isn't an exact copy? None of the designs I would like to use are original artwork from anything. I created everything myself. Does that make a difference? Basically fan art.

 

[justalayman]

If it was a drawing, that you drew, of Dr. Who's tardis, is would be a derivative work.

If I were to draw a Tardis based on the original design, but did it all my own, is that derivative because I drew it myself and therefore it isn't an exact copy?

think of what as being covered by copyright is what you see when you look at the tardis. Not what form it is in but the visual presentation. Whether you see a picture of it, a drawing of it, a model of it; it is all a representation of "the tardis" and that is what is covered under copyright protection.


if you draw a picture of "the tardis", while your work itself is covered under your own copyrights, the object you drew is still covered under its own copyrights. Your work was derived from the original work (the tardis).


You also need to be careful of trademark rights. I do not know if Dr Who (the company that owns him anyway) has a trademark on the tardis. If so, you have to consider that in anything you do as well.

stick around. I'm just a layman (hence the user name) concerning this stuff but there are a couple people here that know this stuff quite well and may be able to explain it better, and in a way you can understand. quincy and flyingron are the two I refer to. quincy is a bit more active on the forum so I would expect him to address this more than ron.

 

[maneki]

Thank you for the help. From what I understand about trademarks I can't use the name Tardis, Doctor Who, etc. Can images be trademarked as well as copyrighted? It really is a difficult subject to grasp. I'm glad I'm asking though instead of just assuming and getting in trouble for selling something I shouldn't.

 

[justalayman]

Thank you for the help. From what I understand about trademarks I can't use the name Tardis, Doctor Who, etc. Can images be trademarked as well as copyrighted? It really is a difficult subject to grasp. I'm glad I'm asking though instead of just assuming and getting in trouble for selling something I shouldn't.

yes, images and objects are definitely covered under trademarks. Think; Mickey Mouse that image is protected, as the military nuts would say, with extreme prejudice.

 

[RRevak]

Many years ago a friend of mine attempted to sell a painting she painted herself. She displayed it at a local coffee shop for sale as her own work. Well, about 2 weeks later the shop called her and told her she needed to remove the painting and cease any attempts at sale. Turns out that while she herself painted the painting, the image itself was actually the cover of a Phil Collins album and was therefor copyright infringement. Even though the image of the album was an actual image, while hers was merely a painted rendition of it, it was still considered infringement.

 

[FlyingRon]

A painting of the exterior of the TARDIS isn't likely to be a derivative work. The TARDIS exterior is that of a London Police Box.

 

[quincy]

A feature of a tardis is its ability to blend into its surroundings, isn't it? So what a tardis has become, that makes it appear a natural part of the landscape (for instance, a police box in London), could (generally) be drawn without infringement. It just couldn't be called a tardis.

maneki, you can be inspired by another's copyrighted work. Most great works will take their inspiration from the works of others. You just cannot copy a copyrighted work, make your own work substantially similar to a copyrighted work, or borrow too much of another's copyrighted work when creating your own new work. How similar your work is to the original, and how much of another's work is too much to borrow, however, is often left for a court to decide. A court is left to decide the matter when the copyright holder objects to the use and sues for infringement.

Although ideas are free for anyone to use, it can be important to get permission from any copyright holder whose work you wish to use, especially when you plan to make money off your creations.

A good case to look at is Rogers v Koons, 960 F.2d 301 (2d Cir 1992) (http://openjurist.org/960/f2d/301/rogers-v-koons). The artist Jeff Koons is an "appropriation" artist. Koons takes his inspiration from the copyrighted works of others and builds upon these works. Sometimes his resulting art work is considered a "derivative" of the original and sometimes his resulting art work is considered "transformative."

In the Rogers case, Koons used a photograph taken by Art Rogers and used the photo to create a 3d version of the photo - a sculpture that was substantially similar to the photo. Without having obtained permission from Rogers prior to using the photo as inspiration for the sculpture, Koons was found to have one, created a derivative of Rogers' photo and, two, infringed on the rights held by Art Rogers' in his photograph.

A derivative is one of the exclusive rights of the copyright holder. A derivative will build upon the original copyrighted work but there is usually enough original and creative material added to it to change the original work into a new, copyrightable work of its own. For example, an author can take his own novel and translate it into a different language. This translated work would be considered a derivative of the original. A movie can be made from a book. The movie would be considered a derivative of the book. But no one can translate an author's copyrighted novel into a different language without permission from the author/copyright holder and no one can make a movie from the author/copyright holder's copyrighted novel without permission.

That said, it is possible to make a work using copyrighted works as a building block for your own work by "transforming" the old work into an entirely new, original and creative work that does not infringe. In another lawsuit involving the artist Jeff Koons, Jeff Koons was found to have transformed part of a copyrighted advertising photograph featuring a shoe by using it as part of his original and creative "collage." A court found this transformative work was not infringing on the photographer's rights. (See Blanch v Koons through the following pdf file: http://cyber.law.harvard.edu/people/tfisher/IP/2006 Blanch Abridged.pdf)

Copyright laws, as you noted, are different in other countries - and these differences can be significant. If you plan to sell your works internationally, you will want to be aware of these differences (see http://www.wipo.int). If sued for infringement, however, any copyright holder in a different country who claims you have infringed on his/her work will need to sue you in the U.S. under U.S. copyright laws (to have an effective suit that can be easily enforced).

justalayman and RRevak and FlyingRon have nicely addressed most of your questions.

 

[maneki]

Thank you all so much. This is so much more complicated than I had imagined, and I imagined it pretty complicated to begin with! I think I'd rather just attempt to get a license to sell the items. I understand they can be hard to get, and not cheap either, but it sounds like a much better idea to try to do it that way. If anyone knows who I need to contact regarding Doctor Who and World of Warcraft merchandise, I'd love to know.

 

[quincy]

Thank you all so much. This is so much more complicated than I had imagined, and I imagined it pretty complicated to begin with! I think I'd rather just attempt to get a license to sell the items. I understand they can be hard to get, and not cheap either, but it sounds like a much better idea to try to do it that way. If anyone knows who I need to contact regarding Doctor Who and World of Warcraft merchandise, I'd love to know.

Getting permission from the rights holder and/or a license to use rights-protected material is definitely the safest way to avoid legal entanglements, but you are right that it is not always easy to get a license and it is often costly.

For information on licenses and additional information on intellectual property rights in Dr. Who material, you can go to the Doctor Who official website (www.bbc.co.uk/programmes/b006q2x0) and click on Terms of Use/Business Use. Under Business Use, look at #2, General prohibitions of use and intellectual property rights, and #3, Additional terms Licence conditions.

For World of Warcraft, you can go to Blizzard Entertainment's official website (www.blizzard.com) and look for the Terms of Use and licensing for World of Warcraft material (I didn't check this site out for specifics).

Good luck.

 

[maneki]

Thank you so much for that link! That was very helpful. I hope I'm reading it right since it sounds to me like as long as I meet those requirements (which I believe I do) then I can proceed with my items.

 

[quincy]

Thank you so much for that link! That was very helpful. I hope I'm reading it right since it sounds to me like as long as I meet those requirements (which I believe I do) then I can proceed with my items.

Which one of the links? I think I posted about five links and justalayman posted a link.

 

[maneki]

Hehe sorry... specifically the one for the BBC terms of use. All the links were helpful but that one especially so.

 

[quincy]

Hehe sorry... specifically the one for the BBC terms of use. All the links were helpful but that one especially so.

Glad to hear it is helpful.

To ensure that all you will be doing with your wedding invitations nicely avoids infringing on anyone's intellectual property rights, you might want to consider running samples of the invitations you plan to market by an attorney in your area (or perhaps take the invitations to a free or low-cost legal clinic connected to a law school for review).

Good luck with your online store, maneki.