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WAN - Articles
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Photography, Copyright, and "Derivative Works" |
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Written by Michael Kahn
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Thursday, 27 May 2010 18:20 |
Photography, Copyright, and "Derivative Works"
Posted on November 13, 2009 by Michael Kahn
 Mark Twain channeled the frustration of many artists when he wrote, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” One such frustration is the realm of derivative works. Artists understand that all art is ultimately derivative. For example, Ernest Hemingway wrote, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”
But copyright law takes a narrower view, defining “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101.
Why is this definition important? Because one of the six exclusive rights given to a copyright owner is the right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. Thus the movie version and the videogame version of the novel Jurassic Park are “derivative works” that cannot be made without the permission of the owner of the copyright in the underlying work. Most of us understand that part—but not much else.
The recent 7th Circuit Court of Appeals decision in Schrock v. Learning Curve Int’l highlights how confusing the concept of a “derivative work” can get in real life—especially when the derivative work is a photograph of the underlying work. Is there even a copyright in that photo, and, if so, who owns it?
We begin with the “Thomas & Friends” toy train figures, which are themselves “derivative works” based on the popular “Thomas & Friends” train characters from the animated television show, which is itself a “derivative work” based upon The Railway Series, a set of story books dating back to the 1940s about a fictional railway system on an imaginary island.
The Thomas & Friends toys were each protected by copyright. The defendant hired Daniel Schrock, a freelance photographer, to take pictures of the toys for use in advertising and on product packaging. When the defendant continued to use his photos in ads and on packages beyond what he claimed was the term of the agreement, Schrock registered the copyrights in the photographs and sued for infringement. His case raised two important copyright questions that had not been settled by prior case law:
1. Is a photograph of a copyrighted work a “derivative work” that is entitled to its own copyright?
2. If so, who owns that copyright?
As for Question 1, the test for copyrightability is the standard one: originality. In finding that Strock’s photographs passed that test, the Court drew upon prior cases that applied a generous standard of originality in evaluating photographic works for copyright protection. Those cases focused on the photographer’s originality in “the rendition of the subject matter—that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on.”
The Court rejected the defendant’s contention that Schrock’s photos had to meet a higher standard of originality because they were undeniably “derivative works”—i.e., realistic photographs of copyrighted toys. Instead, the Court held that the standard of originality for a “derivative work” is the same as the standard for any work. It concluded that Schrock’s photos of the toys “possessed sufficient incremental original expression to qualify for copyright.” In particular, the Court cited Schrock’s testimony about his creative process in depicting the toys in his photographs.
As for the final question—who owns the copyright in a “derivative work”?—the Court first had to deal with precedents that suggested that because the creator of a derivative work requires permission of the owner of the copyright in the underlying work to create the derivative work, he also needs permission of the owner to register the copyright of the derivative work. The Court rejected those prior cases. Instead, it held that the right to claim a copyright in a non-infringing derivative work arises by operation of law and not through authority from the copyright owner of the underlying work. Under operation of law—in this case, copyright law—the creator of a work of art is the owner of the copyright in that creation.
That final question, however, did not receive a final answer. The trial record was unclear as to the terms of the freelance photographer’s contract, especially whether there was any provision limiting his ability to copyright the derivative works in his own name. Accordingly, the Court remanded the case for further proceedings.
Despite the remand, the Schrock decision stands as an important affirmation of the rights of photographers in their works, including derivative works, and the artistic merits of those works. The case also stands as a reminder to all parties to address the issue of copyright ownership in writing and at the outset of the relationship.
This article is being reproduced by courtesy of www.artlawteam.com. They have invited us to propose topics for discussion, so if you have any ideas and/or comments about this article or future ones, please post your notes here and I will forward them to Coco from Art Law Team who kindly opened these doors for us.
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Last Updated on Thursday, 27 May 2010 18:33 |
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Written by Jonathan Pink
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Friday, 02 April 2010 14:42 |
Copyright Myths Debunked
Posted on September 9, 2009 by Jonathan Pink
 Over lunch the other day, a coworker asked whether it was true that there was no need to register work with the Copyright Office as long as you put it into an envelope and mail it to yourself. Gazing past the rigatoni stuck in his teeth and focusing on the question, I realized that I had heard it before. Many times before. "So what's the deal?" he asked, "Is it true or not?"
The answer is ... buried in the following multiple-choice test.
Myth 1:
Copyright protection comes from placing a "©" on your work.
a. Absolutely true. Why else would that little c be in the circle?
b. Sometimes true, depending on things I'm not really sure about.
c. Not true.
The answer is c. For works created after March 1, 1989, copyright protection attaches immediately and automatically at the moment of creation. You can even try it at home: take a pen, draw a quick sketch. Done? Great. Copyright protection has already attached. And it does not require you to pen in that familiar © symbol. 17 USC §401(a); 17 USC §102(a).
For works created before March 1989, the © was required for protection-although in the labyrinth of copyright laws, some allowance was made for works published after December 31, 1977 if the would-be copyright owner took certain measures to cure the error of omitting the mark.
Myth 2:
Copyright protection requires registering your work with the Copyright Office in Washington, D.C.
a. This is a trick question. It's true that copyright protection requires registering your work, but you don't have to do it at the Washington office. You can do it at one of the many affiliated offices through-out the country. In fact, I think I saw one just the other day.
b. Not true. I created it, it's mine, and there's nothing more I have to do.
c. Of course. Why else would your tax dollars go to support a federal copyright office?
The answer is b. Again, copyright protection attaches immediately. If you need more proof, look at that sketch you made and remember that it has copyright protection already. All that is required is an original work of authorship-be it literary, artistic, musical, or even a computer program-affixed in any tangible medium of expression. 17 USC §102(a).
"Tangible medium of expression" means that your work is readable or perceivable either by use of a machine or with the naked eye. 17 USC §102(a). Again, look at your sketch. If it's on a scrap of paper or in the corner of this article, it's affixed to a tangible medium of expression because it's still there. If it isn't where you drew it, then it probably wasn't affixed to a tangible medium of expression.
This brings up another question. Why would anyone bother registering a work at all? Registration is often a good idea because it is usually a prerequisite to bringing an action for copyright infringement. 17 USC §411(a). It also helps to establish the work's date of creation and is required if you want to recover statutory damages or attorneys fees. 17 USC §412. Oh, and it assures that your work will end up in the Library of Congress, which is cool.
Myth 3:
Placing the work in an envelope and mailing it to yourself has the same effect as registering it with the Copyright Office.
a. No. If it did, why waste the ink to print this article?
b. Of course it does. If it didn't, why waste the ink to print this article?
c. Yes. And if enough authors send in their tasteless dreck, the postal service may not have to raise rates again anytime soon.
The answer is a. Though it's always nice to receive mail, sending the work to yourself does nothing more than establish the date that the envelope-and not necessarily its contents-was mailed. If you think it's important to register your work, pay the $30 and register it with the Copyright Office. If you simply want to receive mail, send yourself a postcard. Or lie on your Form 1040.
Myth 4:
If it's on the Web, it's free for the taking.
a. No. Stealing is stealing.
b. Sure, why not?
c. This is true, but only if I use a 28KB modem, and the copyright expires before I finish downloading it.
The answer is a. Unless the work falls under a generally recognized exception to the copyright law, if it's on the Web, copyright protection attaches, and you can get hit with an infringement lawsuit for misappropriating it. See 17 USC §501(a). Nothing about the Web strips otherwise protectable work of its copyright protection.
Myth 5:
Copying just a little bit does not constitute copyright infringement.
a. Maybe.
b. Maybe.
c. Maybe.
The answer is all of the above. Though the "fair use" doctrine allows for some limited copying of a small portion of some works-for example, quotes for use in educational or scholarly works, criticism, parody, and news reporting-there is no bright-line rule as to how much is too much.
The law weighs into the mix the purpose of the use, the nature of the work, the amount used as it relates to the whole, and the effect of the use on the value of the copyrighted work. 17 USC §107. But, generally, taking any part of a copyrighted work is subject to a claim for copyright infringement. And under this same rule, a person also cannot escape liability for copyright infringement simply by making a few minor changes to copyrighted material. 17 USC §501(a).
That means that if you take your kid's Darth Vader action figure, give it Barbie-like hair, and dress it in platform shoes, you're going to get hit with an infringement action when you try selling it at Toys-R-Us as Ella Vader. You also risk getting hit with a morals charge.
Myth 6:
Company names and slogans, such as Microsoft, Coppertone, "Just Do It," and "Things Go Better With Coke" are protectable under the copyright law.
a. Sure, they all originated from companies that are crawling with copyright lawyers.
b. No, or it wouldn't be a copyright myth.
c. What things go better with Coke?
The answer is b. Although slogans, titles, names, and short words and phrases may be protectable under trademark law, they are not entitled to copyright protection. 37 CFR §202.1. Also not protected by copyright are ideas -- other than the written expression of those ideas -- such as recipes or formulas, absent their incorporation into some larger work or written expression. 37 CFR §202.1; 17 USC §102(b). That means that if someone stole your recipe for chocolate chip cookies, or if you had the idea for The Firm before John Grisham did, you're out of luck. But hey, you've still got your sketch.
Myth 7:
Once I have copyright protection, it lasts forever.
a. Nothing lasts forever.
b. Define "forever."
c. Yes, this much I know.
The answer is a. Copyright protection does not last forever-although it might as well, given that it will outlast you. Under the current law, a copyright lasts for the life of the creator, plus an additional 70 years if the work was created after January 1, 1978, and 95 years from the date the copyright was secured for works created and published before 1978. 17 USC §§302(a) and 304(a).
There is, however, an exception to this rule. The copyright for anonymous works, pseudonymous works, and works made for hire is 95 years from the date of first publication, or 120 years from the date of creation, whichever comes first. 17 USC §302. The U.S. Supreme Court recently ruled that Congress may extend the copyright term, as it has done from time to time since the act's inception. See Eldred v. Ashcroft (2002) 122 S. Ct. 1062.
Eldred involved several companies that made money by exploiting material that, generally because of its age, had lost its copyright protection. The plaintiffs contended that Congress exceeded its authority by expanding copyright protection of existing works by about 20 years. Specifically, plaintiffs argued that article 1, section 8, clause 8 of the U.S. Constitution provided for a limited duration of copyright protection and that Congress had avoided that mandate by repeatedly extending that duration.
The Supreme Court upheld the 1998 Copyright Term Extension Act, authored by the late singer/comedian/congressman Sonny Bono, reasoning that the extension, even as to existing works, was still of a "limited" duration. The Court further reasoned that Congress was well within its right to determine the need for such an extension based on new technologies that gave existing material a greater shelf life. It also supported getting U.S. copyright law in sync with the copyright laws of the European Union. It is rumored that upon learning of this ruling Michael Eisner turned to Mickey Mouse, kissed the rodent on the lips, and said: "I got you, babe."
Myth 8:
When I acquire a copyrighted work, I also acquire the copyright to it.
a. How else would museum shops stay in business?
b. Uh, isn't this why Napster got in trouble?
c. This better be true; otherwise, I just severely overpaid for "A Bug's Life."
The answer is b. Acquiring a copyrighted work does not mean that you've acquired the copyright as well. 17 USC §202. It is possible to acquire the copyright to your favorite works -- provided they are entitled to copyright protection-but this requires a transfer from the copyright holder (17 USC §201) and must be done in writing (17 USC §204). Specifically, part or all of the exclusive bundle of rights held by a copyright owner-importantly, to reproduce, perform, or prepare derivative works-may be transferred during life or at death. 17 USC §106; 17 USC §§201 (d)(1),(2). This brings the more astute back to Napster -- the free, online, song-swapping service that got hit with an infringement action when it failed to prevent its users from illegally swapping MP3 files.
Practically speaking, this means that just because you own every collection of Calvin & Hobbs ever published, that does not mean that you can create window decals of those characters and sell them to motorists across the nation. You may even own the "Essential Calvin & Hobbs," but you don't own the right to reproduce the images it contains. It also means that if you bought one of those decals and slapped it onto your SUV, you should go outside right now -- yes, now -- and scrape it off with a butter knife. Don't worry; we'll wait.
Myth 9:
Sure, you can copyright a book, a movie, or a song, but there is no way you can copyright a house.
a. This must be true. Just drive through Orange County.
b. Not so fast. I'm from Orange County, and the houses are not all alike; those shades of beige are distinctly different.
c. This is false; you can copyright a building, but only if it was built less than a dozen years ago.
The answer is c. Architectural works are entitled to copyright protection if they were created after December 1, 1990, or embodied in unpublished plans or drawings created before that time, even though they were not actually constructed. See 17 USC §102.
This is good to know if you represent architects or developers. If you represent the developer, advise your client to acquire the copyright in any architectural plans he or she commissions. If you represent the architect, advise negotiating hard when it comes to determining the price of that copyright. Remember, working together, we can rid this state of unsightly farmland, pristine hillsides, and bucolic open spaces.
Myth 10:
Once a copyrighted work goes into the public domain, I can reproduce it and claim the copyright for myself.
a. Uh -- no.
b. Sure, but you need permission from the former owner first.
c. Yes, as long as the copyright had been held by the federal government.
The answer is a. Once a copyright expires and the work goes into the public domain, it's free for the taking. Public domain is legalese for not copyrighted. This typically refers to works that never acquired copyright protection in the first place- because they failed to include the (c) during the years it was required or because the original copyright has simply expired, for example, any work that was created before 1923. To the extent you build on work that is in the public domain to create a derivative work, the material you add -- as distinguished from the pre-existing material -- is protected. That does not, however, affect the ability to copyright that portion of the work that entered the public domain; that remains available for anyone else to use. 17 USC §103(b).
By the way, works created by the U.S. government are not entitled to copyright protection, although nothing prohibits the federal government from holding copyrights transferred to it by assignment, bequest, or otherwise. 17 USC §105.
Myth 11:
The concept of "moral rights" does not exist under U.S. copyright law.
a. Oh, please. Is this going to get preachy?
b. No. Like snobby maître d's, stinky cheese, and sautéed garden invertebrates, it's a French thing.
c. Well, maybe it's not called "moral rights," but the same basic idea exists.
The answer is c. U.S. copyright law grants certain visual artists the right to, among other things, prevent the "intentional distortion, mutilation, or other modification of the work which would be prejudicial to" the artist's honor or reputation. 17 USC §106A[(a)(3)(A)]. For purposes of this rule, the artistic work must be a painting, drawing, print, sculpture, or photograph in an edition of 200 or fewer signed, consecutively numbered copies. 17 USC §101. In other words, no one can mess with your sketch.
This article is being reproduced by courtesy of www.artlawteam.com. They have invited us to propose topics for discussion, so if you have any ideas and/or comments about this article or future ones, please post your notes here and I will forward them to Coco from Art Law Team who kindly opened these doors for us.
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Last Updated on Thursday, 27 May 2010 18:45 |
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Written by WAN Team
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Wednesday, 04 November 2009 15:33 |
About your registration
Welcome to the World Artist Network. We hope registering on WAN is the beginning of a great relationship in which we can help you achieve your goals through our various programs. If you have not done so yet, please take a minute to read the “About Us” section so that you may learn more about how we work.
In our recent update, we created categories of members to make it easier to navigate our site and promote your work.
Artists or Writers
As an artist, registering on the World Artist Network enables you to create a professional online portfolio, without the need to create a separate website. If you decide that you would like WAN to present you with exhibit opportunities or publishing options, we will use your profile to showcase your work to galleries, etc. If you have your own website, WAN can further increase your exposure.
Galleries
As a gallery owner, director or curator, you are confronted with many challenges, from finding the right works to fit your space to promoting your events. WAN can help you on and offline. We make it easy for you to browse through our artists' portfolios and help you with the necessary paperwork to make an exhibit happen.
Our Events calendar is open to you to post notices about exhibits and other events happening in your space. We often feature events on our Facebook and Twitter networks, which can serve as an additional marketing tool.
Art Appreciators
Without you there is no audience for our work. Our artists value your thoughts/opinions, and some of them might even be willing to give you a tour of their studio. Join us to help us encourage our artists keep creating.
Managing your profile
We have streamlined profile settings to make it easier for you to edit your profile. Keeping your profile complete and updated makes it easier to help you at a more professional level. Let's get started:
1. This is where you edit the different settings in your profile. You can click here or next to the “Profile Completeness” box to go into the following area:
- The “Portrait” tab will allow you to upload a new image or select an image from the gallery.
- The “Artist Info” tab will let you select your time zone and edit your basic details including changing your password.
- The “Portfolio” tab will let you change the greeting to your gallery, and will provide you with some basic info on the stats of your portfolio.
- The “Artist Bio” was changed to “About” to fit the different profiles. If you are an artist or writer, you should include your bio in here. If you are a gallery or exhibit space, you can use this area to tell us a little about your place and what you do. If you are an art appreciator, you can share with us a bit about yourself and your interest in the Arts.
2. Clicking on “Update Your Image” will allow you to upload a new picture from your computer, or select directly from the gallery of available icons.
3. “Remove Image” will simply delete your current profile picture.
4. “Manage Your Connections” When you visit another member’s profile, you can “Request A Connection” which means they will become part of your network of “friends” From the “Manage Your Connections” area, you will be able to accept new connections, access the list of current connections and cancel them.
5. Your Mailbox area works as a simple private message system which allows you to send messages to other WAN members. Incoming and outgoing messages will be kept only for a certain amount of days, but you can “Archive” important messages that you wish to keep.
6. “Submit New Gallery Entry” will allow you to upload new items to your portfolio. Portfolios are designed to support the following image files: jpg,gif,png, and the following document formats: doc,pdf. This new flexibility supports visual artists and writers who wish to upload some of their written samples, besides the ones posted at the Lounge.
When submitting new works to your gallery, please remember to add the following information (when it applies) in the description as a tool to promote your art: name, size, date and medium.
If you run into any trouble or have any questions about how to make the best of your profile, please contact us at
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
, or simply use our Contact Us form.
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Last Updated on Wednesday, 04 November 2009 16:23 |
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