References and advices about copyrights
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    References and advices about copyrights

    Ok here goes, I know a lot of people are unsure about to go about copyrights, I got some basic informations, if you have more, please post them here, preferably with the sources, so we can have easy access.

    I am making my first posts mostly in a north american perspective but these basic infos can apply in many countries because Copyrights and IP issues are subject to many international treaties.

    Copyrights in Canada
    Strategis copyright guide

    Canadian copyrights Database

    The Copyright Office is part of the Canadian Intellectual Property Office (CIPO), an agency of Industry Canada. In addition to copyrights, CIPO is responsible for the granting and registration of other forms of intellectual property. These are:

    patents — cover new inventions (process, machine, manufacture, composition of matter), or any new and useful improvement of an existing invention;

    industrial designs — the visual features of shape, configuration, pattern or ornament (or any combination of these features), applied to a finished article of manufacture;

    trade-marks — are words, symbols, designs (or a combination of these), used to distinguish the goods and services of one person or organization from those of others in the marketplace; and

    integrated circuit topographies — are the three-dimensional configurations of electronic circuits embodied in integrated circuit products or layout designs.

    What is a copyright?

    n the simplest terms, "copyright" means "the right to copy." Only the owner of copyright, very often the creator of the work, is allowed to produce or reproduce the work in question or to permit anyone else to do so. Suppose, for example, that you have written a novel. Copyright law rewards and protects your creative endeavour by giving you the sole right to publish or use your work in any number of ways. You may also choose not to publish your work and to prevent anyone else from doing so.

    What is covered by copyright?

    Copyright applies to all original literary, dramatic, musical and artistic works. Each of these general categories covers a wide range of creations. Here are just a few examples:

    literary works: books, pamphlets, poems and other works consisting of text and computer programs;

    dramatic works: films, videos, plays, screenplays and scripts;

    musical works: compositions that consist of both words and music or music only (note that lyrics without music fall into the literary works category); and

    artistic works: paintings, drawings, maps, photographs, sculptures and architectural works.


    The word "original" is key in defining a work that qualifies for copyright protection. Naturally, you cannot obtain a copyright for someone else's creation. Originality can be tricky to determine, however, and many court cases revolve around the question of whether a work has been copied, even in part, from somebody else's work.

    Copyright also applies to three other kinds of subject matter in addition to the works listed above:
    performer's performance: performers such as actors, musicians, dancers and singers have copyrights in their performances;

    communication signals: broadcasters have copyrights in the communications' signals that are broadcast;

    sound recordings: makers of recordings, such as records, cassettes, and compact discs, which are called "sound recordings" in the Copyright Act, are also protected by copyright.

    Keep in mind that there is a separate copyright for musical work, for example, a song, and for the device, such as a cassette, that contains the song. Separate protection exists because the song and the sound recording are considered two different works.

    Last edited by Qitsune; June 3rd, 2010 at 11:24 AM.
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    Copyrights vs trade-marks, patents, industrial designs

    People often confuse copyrights with other forms of intellectual property, including trade-marks, patents, industrial designs and integrated circuit topographies.

    Trade-marks are used to distinguish the goods or services of one person or company from those of another. Slogans, names of products, distinctive packages or unique product shapes are all examples of features that are eligible for registration as trade-marks. Sometimes, one aspect of a work may be subject to copyright protection and another aspect may be covered by trade-mark law. For example, if you created a new board game, you might enjoy a copyright on the artwork applied to the face of the game board, the rules of the game and a trade-mark for the game's title.

    Patents protect new and useful inventions such as processes, equipment, and manufacturing techniques. They do not cover any artistic or aesthetic qualities of an article. Unlike copyrights, patents can only be obtained by registration.

    Industrial designs are protected for their original shape, pattern, ornamentation or configuration (or any combination of these things) applied to a finished manufactured article. The artwork of your game board may be subject to copyright protection. Industrial design protection might be available for the board itself. Industrial design protection, for example, might be available for the shape of a table or the ornamentation on the handle of a spoon. An industrial design may be made by hand or machine. Like patents, industrial designs are obtained only by registration.


    When copyright does not apply

    Titles, names and short word combinations are usually not protected by copyright. A "work" or other "subject matter" for copyright purposes must be something more substantial. However, if a title is original and distinctive, it is protected as part of the work it relates to.

    You may have a brilliant idea for a mystery plot but until the script is actually written, or the motion picture produced, there is no copyright protection. In the case of a game, it is not possible to protect the idea of the game, that is, the way the game is played, but the language in which the rules are written would be protected as a literary work.
    Copyright is restricted to the expression in a fixed manner (text, recording, drawing) of an idea; it does not extend to the idea itself.

    Other items which are not protected by copyright include:
    names or slogans;

    short phrases and most titles;

    methods, such as a method of teaching or sculpting, etc.;

    plots or characters; and

    factual information.

    In the case of a magazine article including factual information, it is the expression of the information that is protected, and not the facts.

    Facts, ideas and news are all considered part of the public domain, that is, they are everyone's property.

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    International treaties

    As per wikipedia, the Berne convention which is in existence since 1886 includes the following countries (not necessarily since 1886):

    Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, Honduras, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Mongolia, Morocco, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia and Montenegro, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, The former Yugoslav Republic of Macedonia, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Viet Nam, Zambia, Zimbabwe

    Work created or published in one of those countries is automatically protected in all other countries that signed the convention.

    It is because of this convention that ' inclusion of a copyright notice is no longer a requirement for copyright protection.'

    Copyright under the Berne Convention is automatic: no registration is required, nor is the inclusion of a copyright notice. Additionally, signatories to The Berne Convention were prohibited from requiring any such registration-type formality on foreign authors that would interfere with the "enjoyment and exercise" of copyright. (Signatories are still free to impose registration or publication requirements on domestic authors or those from non-signatory nations, but in practice this is rarely if ever done except that the United States requires registration as a prerequisite to filing suit for infringement.)

    The Berne Convention provided for a minimum term of copyright protection of the life of the author plus fifty years, but parties were free to provide longer terms of copyright protection, as the European Union did with the 1993 Directive on harmonising the term of copyright protection. The United States has for many years extending its copyright terms, most recently with the Sonny Bono Copyright Term Extension Act of 1998.

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    If registration is not mandatory, why does it exist at all?

    Since we already know that our work is protected by copyrights even if we don't register it (as long as we are in one of the Berne Convention countries) we might wonder why some people get into the trouble of paying to register their work with their country's copyright office.

    Well, owning the copyrights to a piece of work is of no use if you can't prove it. In the sad case where you have to prosecute someone who stole your stuff, how do you go about proving you made it in the first place? In many cases, registration of a work of art is accompanied by a deposit of a copy of the work (thought not always depending on the type of art.)

    Forget mailing yourself a copy, enveloppes are not tamperproof and a bit of steam and patience can do wonders. This kind of evidence doesn't hold for very long in court.

    When we started our company, my partner and I talked to the Commissary at CIPO (the canadian copyright agency) and he said that the best way to prove that you did something is to keep your sketches, manuscripts and work in progress. These would often be more work to forge properly than the worth of the piece of art, rendering very unprobable that someone would forge them. If the person had the skill to forge them, they usually wouldn't have bothered copying in the first place.

    Watermarks are not fool proof either and can be altered. Usually, if they are too big to be altered, they get very annoying to view. They can be used to stop thieves of the less skilled type (kids over the internet usually.)

    ----------------------------------------
    Hope this helps, and if you have any questions about copyrights or more info feel free to post them. I'm no lawyer but I enjoy finding out more about such issues that concern us all.


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    Selling rights

    When you sell the right to your art you can be as vague or a specific as you want. Specific is better.

    Say you are commissioned to do a piece, you should write in the contract what rights you are selling:

    What is the use for the piece (publishing in a magazine, printing on fabric, hanging in a living room, billboards)

    What is the scope of the use (is the magazine specialised like Scientific American or widely read like the Time)

    What is the geographic area (New York, Japan, whole europe, all spanish speaking countries)

    What is the time frame (for 1 print run, for 2 years, forever)

    The piece should be priced accordingly to the scope of the rights you sell. You may add an exclusivity provision in the contract that says that even if you didn't sell a right to the client, you can't sell it to a competing company.

    Selling all rights doesn't mean you are selling the original (source file or physical painting.) It also doesn't mean you are losing authorship of the piece (the right to claim that you did the work and to show it in your portfolio.)

    All rights you don't sell remain yours and if you don't have any exclusivity deals, it means you can sell the remaining rights to someone else.

    (I took all these info from the Graphic Artists Guild guideline for pricing & ethics 11th ed.)

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    This goes straight in my "Things i always wanted to know..." folder. i´ve always wondered if saving the wips is the only way for proofing your original work, and obviously it is.
    Well, my brother and I intend to build up a label/company during the next two years, where we going to provide the music and art we are producing. ( i know .....what an original idea!) and i hadn´t time yet to get much information concerning legimitate issues, but i think in Austria it´s quite the same situation as in France or UK for example.

    Anyway, i´m going to figure this out during the next months......
    i would be really grateful if i could bother you from time to time with some questions regarding this topic and maybe learn a little from your experience about starting a company.

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    Quoted from Art discussion
    Quote Originally Posted by FlipMcgee
    1. http://en.wikipedia.org/wiki/DMCA

    Especially the section under the heading "Example of DMCA Takedown Provision" which includes a template of the DMCA request that the author has to fill in and send to the alleged infringer.


    2. http://www.copyright.gov/

    Very helpful FAQ section. Examples: Can foreigners register their works in the United States? and Is my copyright good in other countries?


    3. wiki re: Euro version of DMCA - http://en.wikipedia.org/wiki/EU_Copyright_Directive


    And if you still require help, shop for an internet lawyer.

    .


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    Quote Originally Posted by tatiana
    As regards to U.S. copyright law for "fan art" - it can depend, much as Qitsune mentioned. Some artist web markets are getting much stricter about selling fan art on their sites because of U.S. copyright laws....for example here (probably because they were getting those cease and desist notices from the copyright holders or their lawyers):

    "If you own it, you can sell it. If you have license to it, you can sell it. But if it has material (images, sounds, etc.), in whole or in part, to which you DO NOT have permission to sell, then that material will not be allowed in the Artists Alley. Anyone found in violation of this rule loses their retail space in Artists Alley for the remainder of the convention.

    5b. Policy for the DISPLAY of unlicensed copyrighted material - provided it is NOT FOR SALE - is currently under review.

    Works of parody, for which the U.S. legal code permits fair use exemptions to copyright, may be permitted. These will be reviewed on a case by case basis."
    --------------------------------------------------

    But then you find a website like this Harry Potter fan site where the owner advertises and sells her illustrations based on the stories and includes a JK Rowling copyright notice, and evidently has been *taking commissions* and selling or donating her derivative art for some time it appears:
    http://www.minstrelbook.net/hpbook/hpbook.htm

    I'm guessing that as of yet she hasn't received a letter from Rowling's lawyers. Considering how many fan sites there are, they just may not have gotten to her yet. I do know that Marvel comics, for example, is much more vigilant about sites selling fan art and issueing cease and desist letters (I've seen some sites post the letters,too, heh).
    -------------------------------------------------------

    I did find a couple of links with additional information that you can check out at your leisure:

    http://en.wikipedia.org/wiki/Fan_art
    "Generally, the right to reproduce and display pieces of artwork is controlled by the original author or artist under 17 U.S.C Section 107. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. Generally small excerpts from larger works that have no financial impact on the original and that are done for non commercial purposes could be considered a fair use (depending on a number of circumstances). American courts also typically grant broad protection to parody and some fan art may fall into this category. This is a legal gray area, however, and legality can often not be determined under after litigation has concluded.

    -------------------------------------------------------
    http://commons.wikimedia.org/wiki/Commons:Fan_art

    "Fan art is a term describing artistic representations of elements in a work of fiction which were created by someone not licensed to do so by the copyright holder of the original work. Almost all fan art constitutes derivative work from some sort of copyrighted material and thus should be speedily deleted from Commons.

    This applies regardless of the 'format' of the source material or the fan art. A drawing of a character described in a book is a derivative work of that written description and subject to the original copyright. Likewise, a short story written about a character shown in a movie is a derivative work and subject to the movie's copyright. The original creator of the character, location, scene, story, et cetera has the right to control representations of it in all forms of media.

    The only exceptions are:

    - Fan art which depicts material that is in the public domain or which has been released under a 'free' license that allows derivative works:
    - Art which depicts everyday objects of utilitarian use; e.g. cars, clocks, clothing, which are not artistically unique. You can draw a picture of an Astin Martin without it being subject to the copyright of the James Bond movies, but the Batmobile from Batman Returns is a unique artistic creation and fan art of it would fall under the original copyright.
    - Photographs which fall under freedom of panorama. If the Batmobile from Batman Returns were permanently installed in a public park you would then be able to freely re-use, but not alter, photographs of it according to the copyright laws of some countries.
    - Diagrams which inform on the content of a work of fiction in a non-artistic, straightforward manner. You can highlight the regions of "Oceania", "Eurasia" and "Eastasia" from Nineteen Eighty-Four on a world map, but you cannot "redraw" the map illustrations depicted in copies of The Lord of the Rings.

    Therefore, fan art which appears on Commons needs at least two copyright justifications. First, it must establish that the image meets one of the four exceptions listed above for portrayal of a derivative from a copyrighted work. Second, it must indicate that the creator of the derivative then releases that image under a free license. Theoretically, a derivative of a derivative could require three or more copyright justifications."
    -----------------------------------------------

    Anyways, this kind of info is good to know, so I had fun doing some online research about it. Hope that helps clarify the issue for you!

    t
    Thank you Tatiana

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    I thought I'd post this here, as it pertains to a certain aspect of copyright:

    Quote Originally Posted by Mike Corriero View Post
    Lets say I have an image I did for a client, they paid for full copyright and I no longer own the work. If I choose to fix up the piece years later (while still keeping the overall illustration the same but adding some extra elements and polishing it up) would the client own the rights to the changes I made?

    To try and put it in another way, I'm rather sure but not positive that obviously any changes that I choose to make to it will still belong to the client, meaning... they own the work because the original design was commissioned and paid for and all I did was polish it up and make minor changes for my own reasons. However, I don't have to send them the high res. updated version. Would this be a correct assumption?
    Quote Originally Posted by Elwell View Post
    The new piece you made will be a derivative work base on the work you already did. The client doesn't automatically own the rights to the new elements, but, legally speaking, you can't do anything with the revised image, because you don't own the rights to the original piece it was based on. Imagine if the situation was totally the same, but you weren't the one who did the original piece.


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    How or When to Sell Your Copyright

    Some additional copyright discussion and information that others might find useful. Was originally posted in another CA thread.

    The original question:
    Quote Originally Posted by DragonSnail
    I'm wondering about how/when to sell a copyright - is it normal that a gaming company buy up the copyright when you're doing art/working for them?As far as I have seen, a copyright is supposed to be more expensive than if you are simply selling "the time it took you to make said piece of art". I'm a bit confused about this, and how to approach it when taking a contract with a gaming company. What's normal, how to solve it? Happy for any advice!
    And the responses:
    Quote Originally Posted by JessiBean
    selling IP rights is more expensive for the purchaser, absolutely, cause it's not the one time use of your work they are getting, it is the repeated profiting off of your work over a period of time. when you work for a company on developing an IP like a game, generally the work you make belongs to them since they own the likenesses of characters, enviros, concept work in relation to the game as a whole - the whole game is their IP -- and it is on them to copyright the likeness/name/etc., so really, you are not the copyright holder. you do have rights to any images you make, if they are used improperly by someone (say, ganked over the interwebs) you can have some protection. but really, this should all belong to the company developing the game. you are, of course, compensated for the time you spend making these images, but the rights belong to your employer (this is usually stated pretty clearly in your contract) but read carefully, loop holes and fine print are important.

    you can, however, use the image in your portfolio and for self promotion usually, as per the company's permission (they may require a certain amount of time to pass, they won't let you circulate it before a game is announced, things like that)

    if you choose to work the contract out differently, you certainly can try (depending on whether or not the company agrees, of course) -- and I am speaking from my experience working as a full time company employee, not freelance. So I am paid my annual salary, and my agreement states my work belongs to my employer as their IP, they pay for all copyright protection, and I can use these images for personal use with their permission.

    if you do any illo work or freelance and need to get a copyright, best thing to do is assemble all like-images (all the work for one project) into a catalog and copyright it BEFORE it is published, this will cost you the one time fee of about $45. If work is already published, it really needs to be done individually, and this is where it gets expensive at $45 per image.
    http://www.copyright.gov/

    hope that helps some...
    Quote Originally Posted by Jessica Hook
    1.) If you are an 'employee' of a company (not a freelancer) you typically hold zero copyrights to the work you create, this is normal, and is usually stated in the initial documents you sign when first being hired. In fact, that document may even say that anything created on your work computer belongs to the company, this is also normal, though most companies I know of don't police this. You probably only have the right of self-promotion, with limitations, such as no showing the work before the game/product is released, and no selling the work for a direct profit. In other words, you can put it on your website in order to get more 'new' work for yourself, but you can't make postcards/books/tshirts/etc of the image(s) and sell them. If you want to include the image(s) in a commercial book you have to get permission from the company first.

    2.) If you are a freelancer or 'work for hire,' the company that hires you will most likely want all copyrights to the work you create, this is normal, and will specify this in the initial contract. If so, make sure the rate/fee you charge takes this point into account. Also make sure you specify that you want the right of self promotion. In states like California, I think this right of self promotion is automatic, but I don't know about other states. Again, if you signed away the copyrights, and down the road you want to include the image(s) in a commercial book you have to get permission from the company first.

    3.) If you are a fine artist selling your own paintings, or an illustrator selling your own images, all the copyrights inherently belong to you. When you sell a painting, the buyer is paying for the physical object, and not any of the copyrights, unless otherwise specified in a contract or license agreement.

    When does a company not own the copyrights? Or not want all the copyrights? If a company only wants to license the work created, under certain terms. A company can pay for the right to print an image in an edition of 100 pieces, at 11"x14" size. They cannot sell 200 pieces at 8"x10," they can only do what they have negotiated to do. Sometimes licensing does not involve money, such is the case with showcase books like Spectrum, or De'Artist, or Expose, etc. The artist licenses the use of their image to be sold in the book, in exchange for promotion. If you created a comic book and a company wants to license the use of the main character's image on a tshirt, you negotiate the price & number of shirts. That company cannot put the image onto a backpack or ipod cover.

    The bottom line is if you're an employee, you've probably never held the copyright to the artwork you do on the job, because you signed your right(s) away in an initial contract when you were hired. If you're a freelancer, you negotiate all aspects of the copyrights & licenses, and what you get paid for it is up to you.

    Yes this is true in theory, but it all comes down to the artist's prerogative, and what you want to charge.


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    Parodies

    What about parodies? Are all parodies free from copyright infringements?

    "If one advances confidently in the direction of
    his dreams, and endeavors to live the life he
    has imagined, he will meet with a success
    unexpected in common hours."
    - H.D. Thoreau
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    This is loosely related:

    Fair use provision by the US government.

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

    -the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    -the nature of the copyrighted work;

    -amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    -the effect of the use upon the potential market for or value of the copyrighted work.

    The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
    What Wikipedia has to say on parody(don't take everything in wikipedia as cast in stone, but it's a good jumping board to other references.)

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    Uk specific FAQ
    http://www.dacs.org.uk
    US specific FAQ
    http://www.arsny.com/basics.html

    Basic, detailed explanations (not legal advice!)
    http://www.copyrightcontracts.com/copyright101.htm

    Last edited by Qitsune; September 26th, 2009 at 05:27 PM.
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  20. #15
    Vinicam is offline Five percent inspiration and ninety five percent transpiration. Level 3 Gladiator: Catervarii
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    So let's say one person has asked me to do an illustration about Gears of Wars, for example, the customer put on the bedroom wall. I can do it and charge him for the job? Need permission from the company? How does that work?

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    Well, Fair Use is a case by case situation. I don't think you have to worry about it here. Are you or your client going to broadcast to the GoW right owners what you have done? Private commissions are usually safe, unless the end results end up undully publicised. You may want to search this forum for Cheeks74.

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    References about copyrights

    Greetings All!!

    First I want to say that I am not a lawyer and this is not legal advise.

    However I have been reading about this subject and wanted to share the knowledge with you.

    I am first going to give you the bottom line and then I will go into more detail in the second post. Both posts are written for international artists. I will mention when things are specifically for a certain country.

    Although I try to make sure this applies to everyone and is accurate I don't speak all languages and can make mistakes.

    ---The Bottom Line---

    Protect Your Work!!

    Watermark or sign your artwork and put your copyright and terms of use in the metadata of the image file (photoshop: file->file info). In many countries copyright is not automatic. If you want to have a copyright across the globe put the copyright notice on your image. (© date name)

    Also use a resolution lower than 300 ppi. 72 ppi works perfectly well for showing your work online and limits what someone can do with it.

    None of these things will absolutely protect your work it just makes it harder for someone to steal, it takes more effort, and in case of a lawsuit harder for them to claim that they didn't know it was your work and was copyrighted.

    If someone is using your work without your permission write a cease and desist letter or submit a DMCA take down notice with the website host. Typically that resolves the problem if that fails you will probably have to go to court.

    If you want to sue someone for using your work you have to register with the copyright office (this is true for most countries, but not all). There is no work around, no if or but. If you want to sue in the U.S. and a few other countries you have to register your work period.

    For you to own the rights to your work or to be copyrightable it must be:
    1. Original. Not just a painting version of a photograph.
    2. Exhibits minimal creativity.
    3. Fixed in a tangible form of expression. Files on your hard drive count.
    4. It must not be a Work For Hire.


    It is a Work for Hire:
    1. When an employee performs or creates work for the employer within the scope of the employee's job. You are considered an employee of the company if they pay your Social Security taxes and/or provide you with benefits
    2. When work is commissioned and the agreement is in writing.


    Selling your Rights to your artwork is a good way to make money. Just because you sell an painting or photograph doesn't mean you sell your rights to the painting or photograph.

    Make sure you are specific as to what rights you are selling and for how long.

    Typically there are 3 types of transfers.
    1. Exclusive license- a transfer of one or more of the rights
    2. Nonexclusive license- allowing someone the right to exercise one or more of the rights on a nonexclusive basis. This is not a transfer of copyright ownership.
    3. Assignment license- a transfer of all the exclusive rights in a copyright.

    Be careful of emailing or posting your work online. Facebook has a nonexclusive license to anything you post on their site. Most mail services will claim the same for anything you email. CA is the exceptional exception.

    Read Your Terms Of Use!!!

    Okay so the next post will go into detail about copyright. Feel free to ask questions and share your own experiences/ solutions.

    Simple is not Easy.
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    Copyright Details

    Criteria for a work to be copyrightable:
    1. Must be original

    2. Exhibits minimal creativity

    3. Fixed in a tangible form of expression (fixed form is a form that can be read back or heard, either directly or with the aid of a machine)

    4. Not a work for hire.

    Work for hire
    1. when an employee performs or creates work for the employer within the scope of the employee's job. (You are considered an employee of the company if they pay your Social Security taxes and/or provide you with benefits)

    2. when work is commissioned and the agreement is in writing.

    Rights of Copyright:
    1. Reproduction

    2. Derivative- Transform the protected work to a new work like a screenplay from a novel, a painting from a photo, postcard from a painting, etc.

    3. Distribution- Passing out pamphlets, sending a photocopy to a client, publishing and selling a book.

    4. Public Performance- Acting on stage, singing in club, making a recording, showing a movie in a theater, broadcasting an event.

    5. Public Display- Posting the work on a bulletin board, hanging a print on the wall of a library, displaying the work on a computer screen, exhibiting a painting at an art gallery.

    6. Subsidiary Rights- Printing of paperback editions, selling the work to be made into a movie/tv show/play, publishing all or part of the work in a newspaper/magazine, making an audio version, electronic rights.

    7. Moral Rights- They can never be transferred and never expire. Any intentional distortion/mutilation/or other modification of the work that would be prejudicial to the artist's reputation, destruction of a work of recognized stature, use of the artist's name with a work that the author did not create, use of the artist's name with a work that has been modified.

    Type of Rights Transfer:
    1. Exclusive license- a transfer of one or more of the rights of a copyright holder.

    2. Nonexclusive license- allowing someone the right to exercise one or more of the rights on a nonexclusive basis. This is not a transfer of copyright ownership.

    3. Assignment license- a transfer of all the exclusive rights in a copyright.

    When you sell your rights set the timeframe the rights are transferred, which rights, and where. For instance I could sell the First printing rights of a book for north america.

    After set term is up for transfers. A letter should be sent to the copyright office to notify them and reclaim the ownership of the rights.

    You might want to make sure the right to sublicense the work is included in the contract. (" may not sublicense the rights granted in this agreement without the prior written consent of licensor. Such consent shall not be unreasonably withheld.") A sublicense is a license transfers the license you sold to a third party, sometimes it's necessary, sometimes it can have bad results.

    Statutory Termination of Transfers:
    All transfer of rights can be terminated even if it wasn't in the contract you signed. Just not for awhile.

    Publish Transfers can be terminated during a 5 year period beginning either 40 years after the date of the transfer or 35 years after the date of first
    publication.

    Other transfers may be terminated after 35 years after transfer was signed.

    Any derivative works are unaffected.

    Although it won't immediately apply termination can be served 10 years prior.

    What to do. Send a notice of termination to each person whose rights are being terminated or that person's successor and copyright office. It should include.
    1. that the termination is made under 17 USC 203

    2. the date the transfer was made, if it included publication, date of publication.

    3. title of the work, the name of the author, and the copyright registration number.

    4. brief statement identifying the transfer to which it applies and the effective date of termination.

    Fair Use:
    There are no clear guidelines for what is or what isn't fair use. Only a court can decide what is and is not fair. But there are four factors of fair use

    1. purpose and character of use commercial/ nonprofit

    2. the nature of the work (private should not be made public, etc)

    3. the amount used in portion to the whole

    4. the effect of use on the value of the work

    So if you create fan art of spiderman and you start selling prints of your artwork. Therefore people stop buying posters, etc from marvel. That is not fair use.

    Proving Copyright Infringement:
    1. Prove a valid copyright- is the material original, creative, and in a fixed medium of expression? The best way to prove this is with the certificate of copyright registration.

    2. Prove the work was copied, distributed, made into a derivative work, etc.- To do this you must prove Access. Did the infringer have access to the material? For example could the infringer have taken your book out of the library, over the airwaves, etc.

    Similarity- is the copy significantly similar. Have words been copied verbatim? Are there identical characters in the story?

    3. Prove that they took the "protected expression" of the work- What is Original and unique to the work? How significant is the work?

    For example if you take a photo and put it online. Then you find your photo turned into a painting. Unless that painting has a different composition or some significant change that's infringement.

    Solutions to Infringement:
    1. Mark your work
    a. watermark or sign it
    b. put the copyright info in the metadata of the image file
    c. put your terms of use in the metadata of the image file
    d. keep everything related to your work
    e. use a resolution lower than 300 ppi

    The above solutions will not protect your work absolutely, but it makes it harder and will prove willful infringement in court.

    2. Collect evidence
    a. take screen shots and pictures of infringements
    b. use tineye.com to find infringements

    3. Write a cease and desist letter- include
    a. your name and business contact info
    b. name of my work
    c. date of first publication
    d. record of registration
    e. the nature of the infringement
    f. demand the infringer cease and desist and pay for damages
    g. require a response by a certain time.

    4. Digital Millennium Copyright Act- U.S. only website takedown notice
    a. The notice contains- A physical or electronic signature of the owner of work that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, if multiple copyrighted works a list of the works at that site; Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, with information sufficient so that service provider can locate the material; Contact information; A statement that the you in good faith believe that the use of the material is not authorized by the copyright owner, its agent, or the law; A statement that the information in the notification is accurate, and under penalty of perjury, that the you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    b. The notice must be sent to the service provider's DMCA agent. (who is registered with the copyright office)

    c. Use betterwhois.com to find the site's provider

    d. If a counter notice is filed then you will have to go to court

    e. Consider filing with search engines

    5. Work out a settlement- meet halfway

    6. Go to court

    Filing a Lawsuit: - this applies only to the U.S many other countries are similar.

    Lawsuit has to be filed within 3 years from the time the infringement should reasonably have been discovered.

    1. Ask yourself is the cost of litigation more than the infringer's profits and my damages. (Copyright lawyers typically charge between $200- $300 per hour)

    2. Before a copyright infringement suit can be filed you have to prove a valid copyright with a recorded certificate of copyright registration. (Without the certificate you only have the right to tell the infringer to stop using the work.)

    3. Can sue for injunction (court order to stop publishing/distributing work and destroy all copies they have), attorney fees (at the discretion of the court), all revenue they generated from the infringement, money for lost sales, statutory damages.

    4. To receive statutory damages and lawyer fees instead of profits and damages you have to timely register the work
    (Published work- within 3 months of the date of first publication or before the date the copyright infringement began. A work is published when copies are made available to the public on an unrestricted basis.

    Unpublished work- Registered before infringement. Can register only if the work is being prepared for commercial distribution. Register again when it is published to apply protection to the changes that were made.).
    (Damages range from $200- $150,000 depending on how willful the infringement)

    5. Infringers could claim that you copied from them.
    This can be disproved if your work was deposited with the copyright office before the infringing work or if it was published before the infringing work.

    The copyright office will provide certified copies of deposits you made with the copyright office. But only if before the 5 years, you can make a full-term retention request for $425 so it will be stored for 95 years from publication. (mailing a copy to yourself does not hold up in court)

    Filing for Copyright Registration- U.S. only:
    1. Forms- TX- Nondramatic literary works, PA- Performing arts, SR- Sound
    recordings, SE- Serial publications, VA- Visual arts.

    2. Submit "best edition" of work with form meaning the highest quality of work available at the time of registration.

    3. Have to send 2 copies unless work is unpublished.

    4. It costs $65 for paper registration, $35 online.

    Deposits- U.S. only:
    The work you submit to the copyright office becomes the property of the office and won't be returned.

    The deposit is stored for 5 years.

    Mandatory deposits for published work to be used for the library of congress.

    (Exemption for work available only online more info www.copyright.gov/title37/202)

    Simple is not Easy.
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  24. #19
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    Oh NO!!! I killed the thread.

    Simple is not Easy.
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  25. #20
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    Check out http://www.copyright.gov/eco/
    for $35 you get an hour session to upload files. Which means you could upload 6 files as a group saving you money and registering your work.

    Simple is not Easy.
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  26. #21
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    Oh and digimarc not only watermarks your files but also lets you track them across the internet.

    Simple is not Easy.
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    I highly suggest everyone check out "Legal Zoom."
    Type it in google and go to their website! CNN along
    with other reputable sources have recommended to
    use the service if you want to copyright, trademark,etc.
    Even if you are in a different country from the U.S. you can still use the
    service. It only costs roughly $180 altogether for a copyright, which
    is a great deal. Anyway go check out their website to find out specifics!!

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