Intellectual Property Rights

while it's now allowed, it's still the full responsibility of the people uploading them and if caught they could get in trouble from the original owners of the image. if you think the image is stolen, find the match and send it into tech support. many others don't realize that trademarks, taking random quotes from people and so on, is an infringement.


---Mike Savad

All that comes to mind, April, is
..... No plaintiff, no judge

If you think trademarks are not allowed in art across the board then yes, you have been missing a lot. Since the inception of trademark law it was clear it was to protect trade only and not inhibit free speech. It has been confirmed by the courts many times that the use of trademarks and celebrity images in and of itself is allowed and not to be restricted. You really have to look at everything case by case and keep in mind that when you see big companies being infringed upon they are very much aware of it and can at anytime stop it. I think a lot of people are confused because of rules on sites that sell commercial products and also stock companies that like things absolutely clean. Even commercial stock sites are backpedaling a bit and allowing more things that were once taboo because the law allows it.

Here's a link to a site that makes things a bit more clear and dispells a lot of myths. Of course anything you read here or on the link cannot be relied upon. You have to take everything on a case by case basis.

http://www.danheller.com/model-release-copyrights.html

When I find infringements of an individual's work I often contact them . Sometimes they are already aware and have given approval. Sometimes they thank me. But most of what seems like it is illegal is not or the copyright holders are known to allow art and choose to because of the enormous publicity value to them.

Sometimes you will see a famous photo of a celebrity being used as the basis for art. Many photos were made as publicity photos in the 50s and 60s. At the time copyright laws were different and publicists purposely did not copyright the photos so they would be more widely distributed. Those are in the public domain. Nothing is cut and dry.

Recurring post...asked same question myself about week ago...

Bradford, I asked this recently and never was given an answer. What if you painted a scene from a movie of an actor ? a recently made movie not from the 60's. Would that fall under copyright infringement?

Phyliss, I would say no if it was a direct copy, but i know it is done. But,like Christine said, no plaintiff, no judge. When you make art from a movie you are in essence promoting that movie and some companies turn a blind eye to it. Also there is fair use if it is satire. If it is trans formative enough it may be considered an original work. I wouldn't go so far as to say you can just do that. Sometimes it's best just to ask permission.

@Sooner Photo. This is probably the most recurring post and even comes up on forums about PODS off this site. Do a search for "copyright" and there is a lot. Lots of interesting links and many people just want a break from discussing it if there is nothing new so not all the threads take off.
http://fineartamerica.com/discussions.html

April,

As per the Fine Art America Terms of Use:

"You are solely responsible for the content you upload to the website. You represent and warrant that: (i) You own the Content posted by you on the Website or otherwise have the right to transfer rights in the Content, and (ii) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other intellectual property rights of any person. You agree to pay for all royalties and fees owing any person by reason of any Content you post on the Website.

You understand and agree that Fine Art America may review and delete any Content, message, image, or profile that in the sole judgment of Fine Art America violates this Contributor Agreement or which may be offensive, illegal, or violate the rights, harm, or threaten the safety of any Contributor or any third-party."

http://fineartamerica.com/termsofuse.html

@ Hard to add to the replies so far, pretty much in so few post it's been covered from every conceivable angle.

Your observation is spot on. The bottom line is, it's definitely a risk being taken by the individual(s) or re-sellers. I will say in some instances it would be difficult to make an assumption the artist/seller does not have a license agreement in place to market certain trademarked characters. Best way to check is a quick peek at their BIO. Easy to separate the haves from have not's. Those with the credentials will be quick to point it out to stand out from the crowd.

I understand copyrighting more than I understand trademarks.
I just thought if the intellectual property belonged to someone else, I can't use it without permission.
I highly doubt everyone who has ever drawn Batman or made digital art of Dr. Who has gotten permission to use that property for monetary gain.
Maybe some have, but with the sheer amount of artwork out there based on trademarked things, the laws must be pretty flexible. Or the companies don't care.
I guess I have a lot of reading to do.
Thanks for the replies.

Companies don't care until you open your mail and receive a cease and desist letter or worst.

ART gives creators a lot of leeway. Many of the images which are legal or otherwise tolerated in an art context would not be tolerated in a commercial context. Some of the images on FAA are technically copyright violations, but unless the copyright owner(s) view them as seriously harmful they will never say a word.

Fan art nearly always gets a pass because of the symbiotic relationship between owners and fans.

1) Fan art keeps fans entertained between official releases, doesn't take away from the original work and is often seen as free promotion. Copyright holders view fan art as a way to grow the brand without cost or effort.

2) For copyright holders, the cost of pursuing litigation is too high, not just in terms of legal expenses, but in terms of fan backlash. No creator wants to sue their fans.

Many modern day copyright holders even go to the expense of creating fan site KITS, for the purpose of aiding the creation of fan websites. They fully understand that no amount of legal threats or even lawsuits will stop the fan art -- so they take advantage of fan momentum and help themselves in the process.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

Bradford.Thanks for that link.It was very informative and helpful.I also shoot images for stock and some of the images I need to need to get a release for is ridiculous.
It makes it clear now that I don't actualy need the release but unless the stock agency has a release the company wont buy from them so unless I get the release the stock company will not accept my image

Roy - don't confuse fine art intended for decorating an individual's wall with work used for commercial purposes.

art does not have a lot of leeway. you might be able to get away with it for a little while, but trademarks would be removed or you go to court, and even if you win in court, you just spent your life savings on something stupid. the only reason you don't see more of it in court is because it is expensive, and the threat of going to court, or getting a lawyer letter, most of it is taken down. go on zazzle, and see how fast it's taken down.

if you want to sell thing as stock, you need that release. you can be sued just by using a house window depending how it's used. also keep in mind that none of us are lawyers, and the knowledge of what is and what isn't, is shaky at best.


---Mike Savad

You make a good point. As an artist I pride myself of not using other artist work. I register my copyright for all my images for this very reason. Ask for permission and compensate the artist.

There is a difference between using art for one self and taking an artist work and selling it for profit. It is theft and dishonest. The trouble you can get yourself into is not worth it. I hope everyone reading has registered their work with the copyright office already. It is easy to do and the only way an attorney will help you reclaim what is rightfully yours. http://www.copyright.gov/
You can register a whole body of work as either published or unpublished. Ones you create the account with the copyright office it does not take up mch time at all.

Iris

Edward don't worry I'm not getting the two confused

I know it might seem like it limits my potential body of work, but my rule of thumb is to use only my own material unless it's clearly stated that there is no copyright or trademark involved.
I'd rather build up my portfolio slowly by hand than yank a thousand images and ideas from other people or companies for risky sales.
I appreciate all the feedback!
I'm enjoying the community here at FAA a lot. :)

"my rule of thumb is to use only my own material"

I'm totally digging your 62 flag designs :-)


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

Ah, thanks for the link to http://www.danheller.com/model-release-copyrights.html. Very useful.

From my armchair view (ie. not an attorney)

Stock art is purchased for commercial purposes. The need for the releases is because in a stock situation the buyer needs to know that the image is free and clear of potential issues from use of the property (property release), model (model release) and any trademark infringement issues.

The agency is always going to side with caution as they've dealt with expensive issues in the past. When the image is used as an endorsement of the companies product, position or cause - they have to make sure there won't be anyone coming out of the woodwork suing them.

They also want to be sure the artwork is actually from the artist they are contracting with and that artist has not already granted rights to someone else.

This is so much different from selling directly to end user who will just be using the work to make their living room pretty.

As with many (most?) of the posts I've read on Copyright and Trademark issues posted on FAA there is a lot of misinformation in this thread. There are several basic concepts that are at the heart of the matter and which will help everyone understand an artists rights and responsibilities in regard to copyrights and trademarks.

One of the first basic concepts that protect visual artists is that their art is considered Free Speech. When their appears to be conflict, rights of the artist to exercise his freedom of expression vs. rights of a corporation to protect their intellectual property, the courts will intervene and provide us guidance for the near future and perhaps beyond.

A classic example is the famous painting of a Campbell Soup can by artist Andy Warhol. Fortunately, Campbell Soup was a fan of Mr. Warhol and there was no costly litigation. In fact a representative of Campbell Soup sent a letter of praise to Warhol. But let's look at a similar case some 40 years later. Artist Daniel Moore and the University of Alabama. Making a long story short, Moore used numerous Trademarked items in products he sold such as mugs, glasses etc. He had secured a license agreement with the university. But the university said that his paintings included college insignias and other trademarked items and were not covered by their license agreements. It was now time for courts to rule.

The courts first looked at the licensing agreements and said they were too vague, meaning the university was not specific enough and they were ambiguous. Score one for the artist. Next the courts looked at the basic issue of Free Speech and Trademarks. Historically the courts have taken a very narrow approach and they did the same in this case and ruled that Mr. Moore's paintings of historic events on the campus were protected by the First Amendment. Their logic is that as long as the use of Trademarked items does not create confusion in the consumers mind, then freedom of expression wins.

Mr. Moore than argued that he didn't need licensing agreements if he made derivative works of his paintings and put them on mugs, glasses, t-shirts etc. The court ruled against Mr. Moore on this issue. There decision, was based on the nature of the articles and commercial aspects of them. So, is a coffee cup art or a way to circumvent trademark laws? Articles of mass consumption, t-shirts, calendars, etc. are they art or again, a way to circumvent trademark laws?

What can we draw from this? Items that are limited in production, think fine art, such as paintings, etc. and sold that way are protected. Items that may sell in the thousands or more probably need a license agreement from the trademark holder.

Now, the standard disclosure, I'm not an attorney and what I've written is just my opinion, but I did stay at a Holiday Inn Express last night ;) If your art contains trademarked items, it's best to consult an attorney that specializes in intellectual property.

"What can we draw from this? Items that are limited in production, think fine art, such as paintings, etc. and sold that way are protected. Items that may sell in the thousands or more probably need a license agreement from the trademark holder."

That sums it up. Great post, Jeff.

"what I've written is just my opinion"

It's also the opinion of countless artists, museums, art galleries, attorneys and many court rulings. What keeps the conversation interesting is the occasional oddball case with unique circumstances pitted against a law with built-in gray areas. People want the definitive, hard-core black/white rule but that animal purposely doesn't exist.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online