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Phil Lowe

9 Years Ago

The Sale Of Derivative Works And Copyright

I'm relatively new here, but am puzzled and dismayed about something. On the announcement page, an artist was being congratulated for the sale of an Avengers movie poster that it appears he painted (perhaps oil or acrylic on canvas). It's a nice piece, but makes me wonder whether Disney/Marvel granted the artist the right to produce a "derivative work" under copyright law. In doing some research, I found the following:

So What Is a Derivative Work? A derivative work is a new, original product that includes aspects of a preexisting, already copyrighted work. Also known as a "new version," derivative works can include musical arrangements, motion pictures, art reproductions, sound recordings or translations. They can also include dramatizations and fictionalizations, such as a movie based on a play. Other examples of derivative works include: Translating an English novel into Spanish Remixing previously released music Creating a sequel to a film using characters and other elements from the original

Who Can Produce Derivative Works? Only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. Copyright on original works of authorship is automatic, and registration—while it does carry significant benefits, like the right to sue for infringement—is not required for a work to be protected; protection attaches immediately when the work is completed. However, a copyright owner can grant permission to someone else to make a derivative work based on his or her original—if permission is granted (in the form of a license or assignment), then creation of the derivative work is not infringement.

But if the original isn't yours and you don't get permission to use the original from its creator, then you're infringing that author's copyright.

https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law

Now, if this or other artists are not getting permission from the copyright holders of these works, is FAA legally liable for facilitating the sale of such works? Does FAA require written proof of permission when derivative works are submitted here? Maybe I'm a bit paranoid, but I would hate to see one of my photos turned into an oil-on-canvas here and sold without my permission.

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John Groves

9 Years Ago

Phil,
All I can say is that as far as I can gather with FAA it is the artists responsibility to be aware of copyright, and the artist assumes all the legal issues that follow. I also contribute to microstock sites such as Shutterstock and Dreamtime so was as surprised as you at some of the stuff that gets sold here.
I am used to having to get a property release form from myself before I can even post a work derived from my own paintings or sketches.
Different world, lol.

 

Phil Lowe

9 Years Ago

Yes, I'm on Shutterstock and iStock and, like you, was quite surprised (to put it mildly) at some of the sales here. Model and property releases are there to protect everyone, and I honestly cannot believe there isn't something in place like that here.

 

Walter Holland

9 Years Ago

What John said.

 

Jane McIlroy

9 Years Ago

As John said, different world indeed.

 

Joseph C Hinson

9 Years Ago

All I hope is that the folks behind the scenes will see that come in to the printer and not print it. I see a lot of NFL and NBA property on the Sales Announcement page. But that's just the announcement page, not the "We just printed this and sent it off to the buyer page."

 

Diane Diederich

9 Years Ago

Is that what happens when a blatant copyright violation gets sold? FAA doesn't print it? I really doubt it or we would have a ton of disappointed buyers here because they sell all the time.

It may be a "different world" on FAA but some of the copyright "borrowing" on this site is truly mind boggling.

 

Floyd Snyder

9 Years Ago

Everything that can possible be said about this topic has already been said in at least 5000 threads.

Use the search and you too will be an expert on the subject. :-)

 

Barry Lamont

9 Years Ago

Don't assume there is a violation! Better not to assume anything really... FAA has a disclaimer in place. It is the artists responsibility to obtain permission and it is the original copyright owners responsibility to claim a violation has taken place..

I was also dismayed when I saw this happening. Seeing these "artworks" selling disgusted me, mainly due to the complete lack of originality. The fact that these people share the title "fine artist" with real fine artists is also disgusting, but then again..anyone can post their holiday snaps on here and also claim the title fine artist.

Anyhow..assumption is the mother of all f***ups

 

Bradford Martin

9 Years Ago

FAA does not have a legal team to inspect every image uploaded or sold as stock photo agencies do. FAA relies on the person uploading art to comply with the laws. The fundamental difference between an art site and a stock site is that art is not being sold for commercial use by a third party. Also there is no legal guarantee on FAA as there is on Stock sites. They do remove content at the request of the copyright holders and do also allow reporting of infringements by other parties.

All infingements are on a case by case basis, because you cannot look at an image and see if it is a violation. There is no such thing as copyright police. Just Federal Court, which can be very costly for both parties. FAA is providing a service of hosting your images and providing for payment and printing and framing. They are not copyright police nor would you want that layer of interference.

If you are concerned about copyright infringement by other artists keep in mind that those that do this are not likely to be selling form the same site they took the art from. (Although it happens) As a copyright holder you and you alone are responsible for finding and reporting infringements where ever they may be.

Everything that is posted her is in plain site and easy to find with Google. I wouldn't worry to much about the big movie studios. Trust me they know when they want something down it will be down. As for the small artists , I keep an eye out for copies and I once found a case where there were over 15 derivative works (paintings) from the same stock photo. One claimed to have permission. I contacted the photographer who is a business associate and she was quite annoyed. Those without permission and too close to the original were removed. Some people mistakenly believe they can make deirivitive works from a stock photo. No you can't paint a stock photo and put it on a POD for sale. At least not on the sites I am on.

I can't speak for FAA's legal liability but I am sure their lawyers keep them well within what the law requires of them.


.

 

Joseph C Hinson

9 Years Ago

The truth is I worry about folks stealing my work. I have about .0001% room to care too much whether someone here is selling a movie poster or NFL team logo illegally as it does not affect me.

 

Bradford Martin

9 Years Ago

Why would someone expect the same laws that apply to commercial stock apply to art? Commercial stock is being sold ready to go for commercial use and has a legal guarantee. FAA sells as art. So yes, completely different world. Maybe you never looked further than the world of commercial stock.

As for being on stock photo sites, there is no model release requirement for editorial work. The app I use for uploading to Getty and Istock does not even have a provision for a model release and I put people and trademarks up and get them accepted and sold. The difference is that I upload as editorial with those apps. So yes there are different worlds.One reason I am here is so I can show my photography as real photography not sanitized by cloning out things and using models. I make a ton of money doing that on the commercial stock side, but here is for my art.

 

Mike Savad

9 Years Ago

as far as i know they do need permission. often they take the poster, run it through a painter and call it a painting, in that case it was a real one. but if the lawyers don't know, then they are safe, for now. if your cashing in on someone else's fame, then unless you have permission, you can't do it. on this site though they assume you have the permission to let the site off the hook. but if it was really pressed, the site would be in trouble as well, knowing full well that it's a copyrighted and trademarked symbol, and they would have to ask if they had the permission personally. other sites would just erase it without asking.

ideally you can report the issue with tech, but i don't know if any of those get solved.

---Mike Savad

 

Jeff Donald

9 Years Ago

Mike is absolutely right. Take the case of K-Mart vs. PPofA (Professional Photographers of America). PPofA sent shoppers out to various photo finishers/labs to see if they would accept copyrighted work. K-Mart was flagrantly violating the provisions of the copyright law and copying anything that was brought in. PPofA got it a class action suite, sued and won in court. The final award was in the millions and distributed to the class.

Several years later the PPofA sent out shoppers and K-Mart got caught again. PPofA prevailed again, but this time the award was in the 100's of millions of dollars and was a major factor for K-Mart filing bankruptcy.

I'm not an attorney, but my personal opinion is that FAA may have some liability if a large trademark holder like the NBA, MLB, or NCAA went after them as a class, meaning all the teams etc. A settlement could be huge. So, yes, this could affect everyone here. The only ones that really know the sales numbers are the owner and he's apparently mum on this and rightly so. The matter is for him and his attorney's.

 

Floyd Snyder

9 Years Ago

I keep telling you that there is no such thing as law. There is only legal opinions, enforced by the judges, through the courts. Very rarely, if ever, is "justice" the final results of a court case. And then again, even if you win, you may get nothing but a big legal bill. And yes, I know there a exceptions with big headlines. But that is NOT going to be the results in 99% of the cases even if they do go to court.

Here's what can happen in the courts. Actual case.

I was dealer rep for a friend of mine that had signed a publishing deal with a publisher back east. He signed a deal to publish 12, open edition prints, all 16 x 20. They went to print and he waited for his royalties and nothing came.

One day a guy came into his gallery and said how happy he was to meet the artist of the 12 wonderful prints he had bought. The artist asked him how he got them and the guy told him he bought them six months ago somewhere on the east coast.

That is when this guy contacted me. We were already good friends. We called the publisher and asked what was going on. The publisher said that he was not due royalties on sales East of the Mississippi river until the prints were released West of the river and that was not going to happen until sales reached a certain level.

So off to court we go based on the contract being vague and deceptive. We won the case.... sort of.

Because we could not able to prove actual damages, in the eye of the court, we got a cease and desist order from the court and the publisher was ordered to relinquish all prints that had already been printed. But we got no damages and no legal fees because the counts did no see where we were damaged. Not did they see where the publisher violated the terms of the contract. But he did see that contract as being vague and vacated it. (I think that was the term they used)

So my friend basically got nothing but he did stop the publisher form selling his work. End of story right? NO!

About three weeks after the court date, here comes the inventory from the publisher. It was about 25 full pallets of prints weighing several tons. The trucking company, with their forklift, unloaded all of these boxes, on the pallets, in his driveway.

At the cost of several thousand dollars he had to hire a local trucking company with a forklift, rent a huge, weatherized warehouse and store those prints. Keep in mind, in those days there was not a self storage facility on every corner.

The artist died, a good ripe old age but to my knowledge those prints may still be in that warehouse. I have lost track of him when his wife also passed and the kids inherited.

So, be careful what you wish for.

These copyright laws are not as cut and dried as you would like to think they are.

 

Mike Savad

9 Years Ago

and this is what worries me when their stock idea comes back to haunt them later on. as it becomes more popular. the site will always share responsibility of what it has on their servers, you can't hide behind the TOS. zazzle had the same issue with some odd band, the judge didn't care that they had the terms in there, they had to pay anyway.

---Mike Savad

 

Kim Bird

9 Years Ago

Recently Abbie posted in the forums that if you saw something that you know belongs to another artist you can send FAA an email with the link to the offending work.

 

Floyd Snyder

9 Years Ago

Remember, there is no such thing as law. There is only politics. Politicians make the laws to suit themselves. When they no longer do that, they change them or interpret them to fit their needs. And Judges are politicians too.

 

Phil Lowe

9 Years Ago

"Maybe you never looked further than the world of commercial stock."

Like I said, "...relatively new here." Have been selling stock longer than I've been here. Excuse me for asking.

 

Jeffrey Campbell

9 Years Ago

Hi Phil,

The requirements for contributing artists on Fine Art America are outlined in the Terms of Use. If you suspect a potential copyright infringement, please report the offending image to Tech Support.

http://fineartamerica.com/termsofuse.html

Please select Tech Support from the Contact Us tab.

http://fineartamerica.com/contactus.html



 

This discussion is closed.