DISCLAIMER
This guide sheet was not written by a lawyer. You should consult a lawyer any time you have questions or feel you
need an iron-clad explanation. This is only provided to help folks get started. Dee Dreslough
takes no responsibility for damages incurred through use of this document. It is presented AS-IS
and all that.
Sources:
US Copyright basics By the Gov'mint
Trademark, by Attorneys Stephen Elias and Kate McGrath , 4th Edition,
May '99, Nolo Press
The Copyright Handbook, Attorney Stephen Fishman, 4th Edition, Apr
'98, Nolo Press
Almost getting sued by my once favorite author threw me into a depression that nearly killed me. We artists are sensitive types. I want to make sure I inform as many people as posssible about what can happen when you infringe on copyrights so that they don't have to go through what I went through. Metaphorically speaking, it's much easier to learn about landmines by reading a book on one, rather than stepping on one. :)
What is Copyright and why should I care?
Copyright protects the EXACT EXPRESSION of a work, and no more. The more different a work is, the more it is protected.
Works that are found to be 'confusingly similar' to a copyrighted work are illegal, but figuring out just what
is confusingly similar can be difficult.
Each picture, paragraph or sculpture you create automatically has a set of rights associated with it to protect
it from theft. These rights bundles are lumped under the term 'Copyright'. [S. Elias/K. McGrath, Nolo Press, 1999,
Trademark book] You can sell off all or part of your copyright to different clients, but be sure to get all agreements
in writing first. I have created a worksheet that can help you with making out a basic contract.
REFERENCE MATERIAL:
You can use other pictures and photos as reference material, to help you draw your picture (which should be
significantly different from your reference material). It's a good idea to snap your own photos of trees and nature,
and if you have friends, have them pose for you for your drawings. That way, you own your reference material. Be
sure to have your friends sign a release form, though, so you can use their likeness without getting into trouble.
[ This will eventually link to sample release form.]
Common violations of copyright:
Modified Copying. So, you copied your favorite picture or photograph from a book. You even made a few changes.
Harmless enough, right? Well, it isn't! Unless you have a written letter from the person who drew the original
picture, or snapped the original photo, or carved the original sculpture, you can't display that artwork legally.
Yes, people are doing it all over the place and haven't gotten in trouble for it, but that doesn't mean they won't
get caught eventually.
What is Trademark, and why should I care?
Trademark is a much stronger form of protection. Where copyright protects only the exact expression or anything
confusingly similar, trademark protects look and feel and anything that might be construed to be
derivative of a trademarked image or name. "Look and feel" is so gray, it's as close to owning an idea
as the law allows. Trademarks are always held by people who intend to profit from their creations...this makes
them much more agressive and dangerous to the unwary artist.
Common violations of trademark:
So, you drew your own made up character based on your favorite book, movie, TV show, or comic…Seems harmless
enough, right? Wrong. Or, you drew a character from your favorite book, TV show or comic...copied directly. If
you display and use that picture to further your own career, or to associate yourself with the group that made
the item you're a fan of, then you're going to get into trouble. If you get permission from the company that owns
the rights to the item you're a fan of to make fan materials, then you're fine. But if you don't have that permission,
they may sue you.
Often, as long as you're not promoting yourself or selling items (or giving away items) that relate to that company's
trademarks, they'll leave you alone. But, if you do anything that might hurt their business, affect their business
in any way, or that even just ticks them off (that's why I mention giving stuff away), then they can sue you for
damages to their trade. Fortunately, because most fan artwork isn't for sale or being used to promote an artist
who's doing a lot of business for commissions, most rights holders ignore it…For Now. However, if you start to
get popular...watch out!
General rule of thumb:
For your own sake, just avoid mentioning any inspirations, people, books, movies, etc, in relation to your
art - AND - avoid copying or closely imitating any art you see. If your goal is to become a professional artist
someday, or at least an amateur with a very good reputation, then you need to work on developing your own signature
style. Don't muddle your artistic identity with the identities of other artists, authors and creators.
Other Fun Laws: Satire Exception
The Satire Exception is a special rule that allows you to use and modify someone else's trademarked or copyrighted
work with the intent of amusing your audience. Political cartoons, Saturday Night Live comedy sketches, mockery
video games like "Pyst" - a mockery of Myst… all of these are legal to create because they're making
fun of something that's newsworthy. If you're doing a comic picture, or a picture to make fun of something that's
copyrighted, you're protected. It doesn't even have to be particularly good comedy, either - but it does have to
make an attempt to be funny.
Public Domain
Copyrights and Trademarks exist on works for a limited time. Currently, copyright in the United States is good
for the life of the creator plus 50 years. Actually, the Bono Bill was just passed, which extended copyright to
the life of the creator plus 70 years. In Europe, copyright is also the life of the creator plus 70 years (Berne
Convention?) After this point, if copyright isn't renewed by the surviving copyright holder (many artists pass
their copyright ownership to their kids), then the work enters the public domain.
The public domain is a very important part of our creative world. Unclassified
government documents, government buildings, old texts and books, popular visual
images (skylines, cities, etc), and some modern works have been entered into
the public domain. These allow all creative people a common wellspring of information
from which to generate new ideas. Examples of works in the public domain are:
Frankenstein, by Shelley, La Mord D'Artur (The Death of King Arthur - one of
the first tellings of the Arthurian legends), Ivanhoe, Illyad, Odyssey, The
works of William Shakespeare, etc. Ancient myths, more modern legends (Paul
Bunyan, Johnny Appleseed) and other stories are also part of the public domain.
A few forward thinking individuals, including the author of this little rant,
have even placed their own recently created works into the public domain. [Dimar:
Lost Waters is Dee's book, and it's public domain.]
One important distinction to remember about Public Domain is that works that are derivative (ie: come from)
works already in the public domain are NOT public domain. For example, "Mists of Avalon" is based loosely
on King Arthur's legend, but it itself is a copyrighted work. So, be careful! Don't infringe on copyrighted works,
even if they are based on items in the public domain.
Items that become so commonly used that they're household words can also fall into the public domain. For this
reason, trademark holders, like Kleenex(r) (makers of Kleenex Brand(tm)(r) Facial Tissue) fight hard to protect
their trademarks. How many folks do you know that call tissues Kleenex(r)? Or photocopies, Xeroxes(r)? It's great
for companies when their terms for products or items become popular, but it's bad for them when they fall into
the public domain.
Specific Issues:
Drawing pictures from photographs. This is probably a copyright violation. It depends on if the new picture
is recognizable to the general public as being the same as that photo. Even if you just use part of a photo, it
can be copyright violation - especially if you use the most important part of the photo. For instance, if someone
had a nice picture of a deer standing on a cliff, and you used that deer in a painting you did, but you painted
it exactly as it was in the picture, the person who took the photograph could sue you. (Check the section on Reference
Material for information using photographs to help you make original artwork.)
Drawing pictures from other pictures or paintings. This is probably a copyright violation. It depends on
how recognizable your picture is when compared to the original picture. It's okay to train yourself by copying
from books, but you need to know that those pictures you make you can never show to anyone, or sell.
Drawing pictures from sculptures. This is probably a copyright violation if the sculpture is not public domain.
It depends on if the new picture is recognizable to the general public as being the same as the sculpture.
Some sculptures, because they're old, or because they're in a public place, are 'public domain', which means anyone
can draw them. Some aren't. It's in your best interest to do some research before you do your picture and find
out if the sculpture is public domain.
Q. I belong to XYZ fanclub. I want to draw pictures of my favorite characters from the [Insert famous book, movie, tv show, comic here...]. Is this a violation? If the fanclub does not have written permission from the creators of the famous series you're working from, and that club also has permission to create and distribute derivative works based on that famous property, it is a violation of copyright, or worse - trademark. Most fanclubs get limited permissions - like 'You can make art, but don't sell it'. If your club has that, then you're fine. You can never take money for fan-works with this restriction, though.
Q. A friend of mine wants a picture of [Insert famous Movie, TV or Cartoon Character here]. Can I do this
picture for them?
A. Any pictures of someone or something that someone else made are off limits. Especially if it's a picture
from something that's making a company somewhere a lot of money. If you get written permission from the rights
holder, then you can do it. Otherwise, don't do it!
Q. My friend wants a picture of a guy (not anyone from the movies) dressed exactly like [Famous Movie, TV or
Cartoon Character] from [Famous Movie, TV or Cartoon]. Can I do this?
A. No. You'll get your pants sued off. And, regardless of what the character looks like, you should never say
'This is a picture of [Famous Character] without permission from the person who owns [Famous Character]. Clothing
and costuming is also covered under copyright and trademark.
Q. My client wants a picture of a guy (no one inparticular) dressed in a way wouldn't be mistaken for anything
in particular. Can I do this?
A. Yes. Providing it doesn't end up looking like any Famous Characters from famous movies, cartoons, TV shows
etc.
Q. I drew a picture of a monster that I made up out of my head. But I just found out that it looks almost exactly
like a trademarked character from [Famous Movie, Comic, TV show]. What should I do?
A. Trademark violations do happen accidentally like this. It's been said many times, 'There is nothing new
under the sun', and it's true in the art world too. Are you sure someone who saw your picture would think it was
that particular monster? (Ask around…This is how the courts settle these cases too.) If they do think it looks
like that monster, then you are in violation of the trademark or copyright on that monster. If not, then you're
fine.
Q. I drew a picture of a guy dressed in no particularly distinctive way, and in my heart, I know it's based
on [Famous Character]. But, I'm not going to call it that. Am I safe?
A. If the piece is clearly based upon [Famous Movie, Cartoon, Comic or TV Show] and people see it and recognize
it as that, making sure there is no language identifying it as related to that item will not protect you. You can
still get sued. Time to change your picture. You can know it's meant to be [Famous Character] or based on [Famous
Character], but don't tell anyone and don't call it that.
Q. But, but! I've seen so many OTHER artists infringing! Why can they do it and I can't?
A. Because you now know the law. This means you're smart. :) They obviously do not know the law, or they don't
care. Eventually, they may get sued for lots and lots of money. Minimum copyright infringement penalties start
at $2500. The average trademark/copyright infringement case runs about $10,000. You are able to draw derivatives
in the privacy of your own home...but you can never display or sell them without permission of the rights holder.
Q. I drew a picture for someone as a commission. Now, that person is using the picture to represent their [Famous
Trademarked Movie, Illustrated Book, Comic, TV Show] character. Can I get sued for doing the artwork?
A. Is the picture truly close enough to that famous item to be called it? People might think your picture reminds
them of [Famous Thing], but if it doesn't fit the specific look and feel of [Famous Thing] as the author created
them and has illustrated them in the famous materials, and you didn't intend it to be based on [Famous Thing] ,
it's just a picture.
Q. I drew a regular dragon, but because I love [Famous Trademarked Series], I called it something from that
series on my website. Does that make it from that series, and make me a copyright infringer?
A. Not in the case of the artwork, unless you intended to draw a [Famous Trademarked Series Dragon], and it
is recognizeable as being one. Dragon, in general, is a historical creature. Trademarkable dragons have to be SIGNIFICANTLY
different from the ancient dragon descriptions to qualify for special protections. So, if you didn't draw a dragon
just like the ones created for the Famous Series, you're safe on the ART. BUT…
Unless the person who owns [Famous Trademarked Series] has approved your website, you are in violation of thier
trademark for putting the words they own on your page to describe your dragon! You should always be careful that
your website is within guidelines for fan pages for that trademarked series of books, movies and stuff. You NEED
written permission from the author or rights holder to legally have a fan-page.
Q. But my work is inspired by [Famous Movie, TV, Comic..]! Can't I mention my inspiration, even in passing,
on my pages? It's dishonest not to, isn't it?
A. No. In the 'olden days', before Search Engines, you could mention an author's or inspirations name once
in passing as you displayed your artwork. This was 'fair use', because people would only see the explanation if
they'd ALREADY found your work and were looking at it.
However, today, since search engines will pick up on the author's name and categorize the page it's found on as
associated with them, it's now considered advertising. You'd be advertising yourself and your art using their name,
which is not allowed, unless they've given you permission in writing to do this. I know artists feel terrible if
they can't pay homage to other wonderful artists that have inspired them, but again, unless you have permission
from your inspiration to cite them on your page, don't do it. You will get sued.
Q. If I do a drawing for a friend, and they pay for it, and it's based on their written description of what
the picture should be, can I sell that commissioned picture or copies and prints of it?
A. Yep. If you do a picture for someone, you own all rights to that picture. You can post it on the web, make copies
and even sell those copies, and you don't need anyone's permission to do so.
Q. If I do a drawing for a friend, and they pay for it, and it's based on their written description of what
the picture should be, can they sell that commissioned picture or copies and prints of it?
A. Nope. However, you can sell them the rights to make copies, if you like. [See Rights Sheet]
Q. My client has copyrighted their character's description, but they want me to do a picture of it. Who owns
the rights to the picture when I'm done?
A. The artists own the rights to the picture, even if the words that describe the character are copyrighted
or trademarked. As long as you're not copying another drawing of that character, you're fine. Pictures cannot be
derivative of words. You can make prints, sell it, display it however you like. The copyright to the picture is
yours.
Do not name the picture after the copyrighted character, though. Make up an original name for the picture so that
the person with the character doesn't feel like you're using them for your own ends.
Q. I want to use the picture my artist friend did for me as a picture of my [Famous Trademarked Property]-based
character on my website. Will this get the artist in trouble?
A. It could...if you don't post a notice stating that the picture is not meant to represent anything from the
trademarked world. Please post any waivers required by the artist on your website if you intend to use the art
on a page that's associated with someone else's creations. If the character drawn for you does look like a character
from the movies, the artist may be sued, and you may be sued for displaying the picture. Copyright violation affects
not only the creator of a work, but also to those people who display the work. They may not even know it, but they're
contributing to the damage to the rights holder when they show an illegal picture.
Also, you yourself should not be displaying a character on a web page that's derivative of a trademarked set of
works. The line is fuzzy relating to roleplaying games, where the whole goal is for you to create and use characters
in a game. But, in any case, just don't mention the trademarked series without finding out from the game company
that it's legal to do so.
All this legal stuff confuses me. Can you look at my website and tell me if I'm in
violation?
Other Sources for Information: The Nolo Press Website
Yes, probably…Email me: dee@dreslough.com but, I can't guarantee I'll spot everything. I'm not a lawyer. No one can know all the different books, comics, manga, movies and other forms of stuff out there. Normally I can spot the really big trouble things and advise you how to change your art or your text to keep you out of trouble. You are responsible for your own website…it's your job to make sure you're not in violation of anyone's rights, so the final responsibility lies with you.
Well, that's it for now. Please write in with your questions, and I'll do my best to answer them.