I’m pretty familiar with copyright stuff, but don’t know this twist. I’ve done a design and a 3-D rendering with it. Client will have a photorealistic rendering prepared by an artist from my plans or rendering. Is there any obligation for artist to include my copyright on the rendering since it’s based on my work, or can he ignore that since he’s creating some variation of it with photoshop?
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Touchy subject especially with photographers.
In the world of photography, current copyright law essentially says as soon as I shoot an image it is copyrighted to me, whether I register it or not. It remains copyrighted to me until I assign those rights to another party either for free or for a fee.
For example if company X contracts with me to photograph their building for a fee. I shoot the job ( the second I push the button, the image is copyrighted)and deliver transparencies to the company. I send bill to company for photo shoot. Company pays bill. Everybody is happy. I assign the copyright to the company in return for paying the bill. The company is then free to use the image any way they want for any purpose they want. This arrangement is known as "work-for-hire". It is described in my business policy.
Not all images are created on a "work-for-hire" basis. It is up to the creator to decide how they want to work. Some photographers would panic at the thought of being "work-for-hire", and merely license the client for one or more specific uses, they also retain the original transparencies or negatives. I personally want to do the job, get paid, and not have to be a librarian.
Although I do not know specifically in your case, I would suspect the law is very similar.
Jim
Never underestimate the value of a sharp pencil or good light.
Not sure that hits the point. The renderings and drawings are copyright by me. The artist will use all of that to create the photoreal rendering. If he just places his cr on it, it could confuse people that he did the design (he's tried to design in the past and not been successful). I'm trying to figure out if he needs to, or should, include something like "design by CH" or "based on design by CH" on the artistic rendering...am I making sense?
Yes, I understand your point.
If the work in question was a photograph which was then manipulated in a PhotoShop or other similar program the law still applies and I would have to release the rights to the manipulator. Said release could be for a contractual monetary fee or some other consideration agreeable to me (creator). This could take any form I agreed to -- credit line for the design, a cold 6 pack, $$ or whatever. Copyright rulings regarding photographs have recognized the digital / computer manipulations available today and include the clause "parts thereof". For example, if I were to photograph a building with a really unusual sky and someone were to snitch just the sky portion and use it without my permission, that is a violation of my copyrights. I, of course, must be able to prove that the sky image was mine. Additional photographs, shot at the same time are generally considered iron-clad proof (photographers never shoot just one more unless we are out of film!).
The bottom line is, I think you are getting robbed of your design unless there was some previous agreement between you and the other artist. Said agreement would have to specifically authorize him to use your design or parts thereof in his rendering without compensation to you.
Jim
POST POSTING EDIT - I think you should recieve credit for the design, if you would be agreeable to a credit line such as you described then the matter would be settled. If he refuses then I believe you have a viable copyright case.
Jim
The unique elements, or combination of elements, that you designed are yours and you can place (reasonable) demands on those creating derivations from your work, at least you could have the right to sue them based on not fulfilling reasonable terms for use of your copyrighted material. Of course, this could be an expensive undertaking with no guarantee of desired results (judges and juries sometimes march to their own drummers...)
As a disclaimer, let me note that I am not an attorney and have not even attended law school (I did hang out at a law library for while, but not many women went into law back in those days so I switched to the Anthro library where there were a lot more cute ladies in attendance...)
Derivative works such as the Photoshop embellishment of your work seems to be somewhat of at least a slight gray area - if the Photoshopper was doing a parody or characature, or using the result as a critique of your work, then that would appear to be protected under fair use. Otherwise, if the resulting image borrowed substantially from your work in way that the hypothetical "average man" would recognize, then you would be considered the copyright holder for those recognizable parts and could set reasonable conditions for the use of your copyrighted works. (Enforcement, however, is something else again.)
The following probably cover many of the relevant legal areas, although they may not specifically address what you asked. Not all paragraphs in each section have been included. Happy reading - oh, and there will be a short quizz on the included material next week...:
The Following is from: http://www.copyright.gov/help/faq/faq-fairuse.html
How much do I have to change in order to claim copyright in someone else's work?
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent. See Circular 14, Copyright Registration for Derivative Works.
Somebody infringed my copyright. What can I do?
A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.
The following is from: http://www.megalaw.com/top/copyright/chp1_17usc.php
17 USC Sec. 103 - Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
17 USC Sec. 120 - Scope of exclusive rights in architectural works
(a) Pictorial Representations Permitted. - The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
Notes:
A special situation is presented by architectural works. An architect's plans and drawings would, of course, be protected by copyright, but the extent to which that protection would extend to the structure depicted would depend on the circumstances. Purely nonfunctional or monumental structures would be subject to full copyright protection under the bill, and the same would be true of artistic sculpture or decorative ornamentation or embellishment added to a structure. On the other hand, where the only elements of shape in an architectural design are conceptually inseparable from the utilitarian aspects of the structure, copyright protection for the design would not be available.
17 USC Sec. 106A - Rights of certain authors to attribution and integrity
(a) Rights of Attribution and Integrity. - Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art -
(1) shall have the right -
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right -
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights. - Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
(c) Exceptions. - (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of ''work of visual art'' in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d) Duration of Rights. - (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.
(e) Transfer and Waiver. - (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
Notes:
Nature of Copyright. Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts. Section 102(b) makes clear that copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work
17 USC Sec. 107 - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 USC Sec. 113 - Scope of exclusive rights in pictorial, graphic, and sculptural works
(a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.
(b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.
(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
(d)(1) In a case in which -
(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless -
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.
(3) The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the information so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection.
Edited 10/15/2005 11:44 pm ET by CaseyR
Your (C) should be on the new artwork. If the artist also wants to place his (C) on the work that's OK. Each of you has contributed to the "creative work".
The artist's (C) will not negate yours, and you are free to use your originals, but you cannot use the artist's work without permission. (Similarly, the artist cannot use the work without your permission.)
There is another detail here: If this is a "work done for hire" then the person paying owns the copyright. But this is a bit fuzzy -- if the artist is your employee then the copyright of the combined work is yours, but if the artist is working as an independent contractor then the artist owns his part of the work unless it's spelled out differently in the contract.
No electrons were harmed in the making of this post.
Jim,
I know full-time professional artists and have had this discussion in many variables...
I know this much... If JTC1 takes a photograph of some beautiful young wench, and my friend Joe wants to paint a picture, based on that photograph...
Joe is legally obligated to credit JTC1 for the picture reference.
It gets touchy when the original is changed to enough degree to make it a different picture. Even then, it is good form to give the credit to the original photographer. Plus, if the picture is to be sold, or publically displayed, it gets back to a real legal battle if the credit is not given for the original...
I'll assume this artist is doing the job for hire. I'll also assume that he naturally wants to make it as close to your design and rendering as possible. Bottom line in that case, is that the guy is legally obligated to give reference and credit to you as the original designer.
His reference should be along the lines of.... "Based on original design and 3d rendering by Jim K. Cloud Hidden Designs...
If the "painting" is hung in a gallery, or otherwise publically shown, there is also a legal obligation that a card be hung beside the picture giving the reference and credit.
But it's amazing how we've reached the point where we will go to war over anything that bothers us. I think we all have the right to walk away from things that bother us. If it happens in our homes, then we have the right to send the offending person away. Anywhere else, we take a walk. But when did it become okay to think that we have the right to fight with people who annoy us? And when did a little consideration of others become so unfashionable that we can't do it? A little bit of cooperation and consideration would make all of this a whole lot easier. Rules at the job are always appropriate. But we have become so used to imposing rules on how others chose to live their lives that we are ready to beat them for failing to adhere to them. -SHG
so what's your lawyer say?
Jeff
Buck Construction
Artistry In Carpentry
Pittsburgh Pa
My lawyer doesn't work on Saturdays.###Thanks, all. This just popped up yesterday and the perspectives are helpful.
Few lawyers are up on copyright law. It's a bit of a specialty.--------------
No electrons were harmed in the making of this post.
I don't have time right now to read all the other responses, but the easiest thing to do is agree with the client and artist that you want (or don't want) credit before you hand over your work. It is much better to agree than to enter a legal dispute later.
It shouldn't be that hard, you are both artists and can appreciate one another's issues.