Copyright Questions

[Jag]

killa –

Poster Mistress, lure, Sash, and Jermaine make some good points. Check out the Copyright Office site - http://www.loc.gov/copyright/ – particularly the Copyright Basics and FAQs sections.

The absolute safest course is not to use any image that you did not create unless you have permission from the copyright owner, preferably in writing (and if the subject of the image is famous you may want to get his or her permission too – the Right of Publicity protects a person’s right to control uses of their name and likeness).

As to how long a work is protected by copyright – for most works created now, the protection lasts for as long as whoever created it is alive, plus 70 years. For some older works it is 95 years. See the Copyright site – there are exceptions.

Poster Mistress and Sash are right to bring up the doctrine of parody – it is an exception to the monopoly a copyright owner has over his work. Parody is a particular kind of Fair Use – see Section 107 of the Copyright Act - http://www.loc.gov/copyright/title17/92chap1.html#107 - Fair Use cases are fact specific and subjective – what is Fair Use or parody to one person (or court) may be infringement to someone else.

The big case on Fair Use and Parody is the 2 Live Crew case - http://www.bc.edu/bc_org/avp/cas/com.../campbell.html - the band claimed that their unauthorized cover of Roy Orbison’s “Oh, Pretty Woman” was a parody. The first court to hear the case said that what 2 Live Crew did was Fair Use. The owners of the song appealed -- and the next court said that it was infringement. 2 Live Crew then appealed to the U.S. Supreme Court which ruled in favor of it’s being a Fair Use. This case dealt with music not graphics but the principles are the same. If you ever have the time, check out the part of the case that explains what parody is all about (it says, for example, that a true parody is criticism or comment about the work that it copies).

Some of what lure says is correct, but be aware that a copyright owner bringing an infringement suit does not necessarily have to prove actual damages. He can choose to get “statutory damages” which can be as much as $150,000 per infringement. MP3.com was ordered to pay $25,000 for each CD it copied without permission – $53,400,000; the amount was up to the judge – it could have been much more.

In addition to copyright (and Right of Publicity) a poster artist should be aware of trademark law. A band generally has a right in its name (or logo etc.). If you produce a poster that includes a band’s trademark, and the poster was not commissioned by the band or an agent of the band, the band might consider it trademark infringement or unfair competition. There is a trademark Fair Use doctrine but it is somewhat different from copyright Fair Use because trademark law and copyright law are based on different parts of the U.S. Constitution and serve different purposes.

Also check out http://www.nolo.com/lawcenter/index....E6B5BD92AACD48 - more info on copyright and trademark law.

Poster Mistress is right when she says that this is a somewhat gray area and cannot be explained in a short post. For any specific issue you run into, there is no substitute for getting the advice of a competent attorney. Some cities have organizations that provide legal consultations for free or at reduced rates to artists. Other than that, take a look at the sites noted above. You can also call the Copyright Office with questions – (202) 707-3000, though the people answering the phones may not be attorneys and probably cannot give you a legal opinion on a specific matter.


<font size=-1>[ This Message was edited by: Jag on 2002-04-12 22:33 ]</font>

[Jag]

(Nothing new -- just straightening out the links in my previous post.)

<font size=-1>[ This Message was edited by: Jag on 2002-04-12 22:33 ]</font>

[kolfacekilla]

jag
thanks for such an amazing and complete answer, i am printing it and will hold onto it for a long time. i asked some teachers back in my college days (way back sometime last year...ahh..the salad days) and everyone seemed very unknowledgeable. kinda danced around the topic. they all had feelings on the subject ('i feel that everything should be public domain once the artist puts it out there' yep, one teacher actually said that) but the info you (and others in this forum) gave really helps alot. it makes my job harder, much harder, but i think that's the point. theres a reason they call it 'creating' art. but the art vs. advertising is another forum all together, and i've read it.

thanks again. ty

[lure]

thanks, jag. i think i'll print that one out too!

[Anonymous]

JAG..

Excellent~~~~~!!!! Man thats the kinda asnswer I expected... although yes it is a grey area...you gave insight into the angles... Also PM, lure and sash, thank you for your input!!! This is a worry when you borrow an image and redraw it, or what have you... Its pretty scary stuff!!! I dont know really....I figure, I do so small a run it doesnt matter. They cant get anything from me, cept maybe my doc martens... damn thatd piss me off. I wouldnt fuck with disney or lucas anyways. I have printed out your rant jag as Im sure alot of us newbies will, and study it... tell me though, does your U.S laws apply in Australia? Ive been told over here copyright is 30 years for an image... Ill have to look for australian copyright sites on this... If I lived in Indonesia Id rip off everything hahahahaha as over there, if Sony,Armarni and Tommy Hilfieger cant stop ya, hows Disney gonna git ya...

How does it work if you get a photo, draw it in an illustrated style, and change a few features from the photo... so they look a little alike, but very different... maybe just a persons pose, and slight facial features are the same... can you get done for that kinda stuff????

just curious at my boundries.

[Jag]

Take a look at the nolo.com discussion of derivative works -- "Do I need permission to paint from TV or ad images?" -- http://www.nolo.com/lawcenter/auntie...3B0E540CC4CB1E

[Mr Frumpy]

hey jag thats a great site... that was a quizz I wondered about myself... it is bookmarked.

[zelig27]

The Jeff Koons case is a good example of a worst case scenario when you completely and unquestionably copy something else. However there are two cases I know of that might make you rethink the whole "change 30%" rule that most cover their asses with. I'll just give the basics and feel free to look them up on the net.
The first involved Sid and Marty Kroft suing McDonald's claiming the whole idea of McDonaldland and its characters was ripped off from thier H.R. Puffinstuff show. One piece of evidence used was that H.R. was a huge headed mayor of the joint and McDonaldland also had a huge headed mayor. I don't know much about percentages, but I imagine taking a reptile character with cowboyboots on and making him a burger headed freak with top hat and spats is a hell of a lot more than 30%. The judge didn't think so, however, and after about ten years the Krofts won the case.
The second involved D.C. comics suing another company which produced Captain Marvel (Shazam) saying it was a Superman ripoff. There were a ton of superman ripoffs out there at the time, but this particular one was outselling the original character at the newstand. Once again, making a character that looks like Fred McMurray, wears a red suit, yellow banded arm and leg coverings, a thunderbolt emblem, a white cape, and has a secret identity as a ten year old boy is a lot more than 30% different than Superman. Yet D.C. won the case and somehow accquired the rights to Captain Marvel years later.
Even Lichtenstien, who knew a little about the law and tried the 30% rule to cover his ass, admitted he could have been easily sued, but no one ever bothered with even a cease and desist.
I guess the point I'm trying to make is that if someone has enough money and is pissed enough, they can probably convince a judge that you stole imagery from them. Steal what you want, but when you get that cease and desist, don't bother making a stink (unless you happen to be rich and pissed too).

[Mr Frumpy]

Yeah Id read about the Mcdonalds/Croft saga... Im glad they lost, I mean for fucks sake, they certainly dont put the profits back into the staffs income or anything do they, and the nutrtion less food they serve tastes the same as a poster...hahahaha. Man that HR used to freak me big time as a kid...as did a show called Sectrets of the Magic Roundabout. That dog had no legs and floated, I used to freak over it big time.

Never knew about Shazam, always knew the diff though, cause the undies were different. Thats bizarra they lost, Id have bet on Shazam winning that one... very weird.