Home › Forums › The Art Business Center › General Art Business › Legal Corner › Can my CopyRight Certificate be Challenged if a Reference Piece is Used?
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February 4, 2018 at 5:18 pm #450776
I have applied for and received a copy right of a pencil drawing based on a famous ‘reference piece’. If My use of this drawing is then challenged what then?
To include selling copies…….
The piece is the famous depiction of The Sailor on the Sea. My copy righted illustration is not the exact copy, it is ‘like’ it.I have seen more than one scene of this nature, or composition of elements also in the public arena. I can assume each to be copy righted as well. So now I have this picture and it’s copyright. A neighbor said ‘This is not Yours and You have been advised where to see that for yourself’. I said, ‘I received the copyright certificate so that means a search has been decided and no breach of public trust (must have been) impeded.’
Her response was that the government will just take Your money. So that means to me, the certificate must be improperly given and should be revoked. If she had her way.
I am seeking an answer on this……This art is CLEARLY based on a prior copy right. A certificate has been issued to me. If it is challenged then isn’t one then challenging the US CopyRight Office not me? If I become challenged aren’t I already cleared having ownership of the work’s copyRight certificate?
February 4, 2018 at 6:47 pm #559797My drawing based on the reference piece in my thread
http://i.imgur.com/trUyYno.jpg%5B/IMG%5D%5Dhttp://
February 5, 2018 at 5:05 am #559788You can only assert copyright on an ORIGINAL piece of art.
A piece of art which is based on an original image generated by another person is called “a derivative“. You cannot copyright a derivative.
The original copyright owner typically has exclusive rights to “prepare derivative works based upon the copyrighted work” (17 U.S.C. § 106(2))
Ignorance is no defence in law i.e. If you knew that your artwork was substantially based on another (i.e. a derivative) but did not know that you cannot copyright derivatives then the fault in applying for copyright is entirely yours.
However if the artwork is “out of copyright”, then the restriction on who can make and copyright derivative pieces no longer applies.
Another point – since you ask about challenges. The US Copyright Office is not bound to protect people from their own ignorance.
I’m guessing – as I’m based in the UK and have never had to fill in one of their forms – that they asked you questions. If a Copyright Form asks you whether your art is an original piece of art you have to be truthful when you answer.
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March 8, 2018 at 11:14 am #559795You admit to consciously using an image that is not yours which may be protected by a copyright. You now are expecting to claim rights to the image which you admit was potentially stolen (that is what copyright infringement is, stealing). Don’t you find it ironic that your drawing is about ethics?
March 8, 2018 at 11:52 am #559790Good answers. Not to be snotty, but why do you think copyright laws exist? It is to protect the artist.
No longer a member of WC. Bye.
March 13, 2018 at 11:00 am #559789Hi JFTman,
I recently had dinner with a woman who works in the copyright office. She said they do not do research to determine whether the copyright is legit. That would be determined in court. (I asked why it takes 8 months then to process if they don’t do any research. She said they are just understaffed and busy.)
Other posters are correct that your work, based on someone else’s, is derivative. Assuming the work is still under copyright and has not passed into public domain, it would be an infringement. An exception to this is if the new work is “transformative.” That’s like what Weird Al Yankovitch does with songs.
The problem is that it all has to be duked out in court and who wants to spend their time and money doing that?
Disclaimer: I am not an attorney. :^)
http://www.TrishaAdams.com
Instagram: TrishaAdamsArtist
Pinterest: Trisha Adams, ArtistMarch 17, 2018 at 4:47 pm #559796Definitely never try to register something that is a derivative of copyright protected work, (or make any other false statements). See quote and link below from the US Copyright Office:
“Material Misrepresentations
Knowingly making a false representation of a material fact in an application for copyright registration,
or in any written statement filed in connection with the application, is a crime that is
punishable under 17 U.S.C. § 506(e).”https://www.copyright.gov/comp3/chap200/ch200-registration-process.pdf
In looking up that statute it says the govt could fine the person $2500.
November 2, 2019 at 9:09 am #559792Hi JFTman,
I recently had dinner with a woman who works in the copyright office. She said they do not do research to determine whether the copyright is legit. That would be determined in court. (I asked why it takes 8 months then to process if they don’t do any research. She said they are just understaffed and busy.)
Other posters are correct that your work, based on someone else’s, is derivative. Assuming the work is still under copyright and has not passed into public domain, it would be an infringement. An exception to this is if the new work is “transformative.” That’s like what Weird Al Yankovitch does with songs.
The problem is that it all has to be duked out in court and who wants to spend their time and money doing that?
Disclaimer: I am not an attorney. :^)
This is correct. I do work in intellectual property litigation (not an attorney). The copyright office did not “do a search” that actually was your job.
Generally speaking as a regular person I would not recommend getting a copyright or patent for anything because at the end of the day it won’t stop anyone from copying or infringing if they are inclined to do so and regular individuals can’t afford intellectual property litigation. Copyrights and patents are great if you intend to litigate with those who violate. For even a small copyright case that never even made it to trial but rather reached a settlement agreement during the litigation process the cost is more than your car cost. You will not be awarded attorney fees if you win except in the most exceptional circumstances (read never).
November 2, 2019 at 10:23 am #559794To respond to missionart, I am part of a group of creators, including the owners of a small publishing company, who saw our work taken by another individual and republished without our knowledge or consent. Clear violation of copyright. All we could do was file complaints with Amazon, etc posting out the copyright violations and asking for the offending works to be taken down. Sometimes they were, but then they would pop back up again.
It was cost prohibitive to consider filing suit, which even if we had won would have been a judgement against empty pockets.
"Let the paint be paint" --John Marin
November 4, 2019 at 8:37 am #559793Yes it happens all the time. I’ve had it happen to me too. I actually had someone put a YouTube up showing people exactly how to steal artwork using my listing as her sample! Another artist alerted me to the video. The YouTuber did take it down after I publicly commented on her channel. Maybe that’s the best we can do, keep an eye out for each other.
November 30, 2019 at 12:59 pm #559791There is a difference between a derivative and a “transformational work” in US copyright law.
Based on the latest legal rulings, if an artist uses a photo or other artwork as a reference and then *transforms* it by adding a unique new artistic style and/or other changes, it is a new piece of original art.
The amount of change necessary, according to the courts, is that “a reasonable person would judge that it offers a new artistic contribution”.
January 3, 2020 at 10:55 pm #559787I see two issues here, speaking solely as an artist that looked into this issue a long time ago. As I understand it, your filed copyright gives you the ability ‘punish’ someone who copies your work, without you paying for litigation, a clerical procedure, so to speak. That’s the point of registering, for us regular folks. If you don’t register, then you would have to deal with litigating. The second issue is: What if someone knows you used a copyrighted image, they might then choose to steal your derivative image, presuming that you would fail if it went to court? I don’t know if that is how it might go down. I suspect that it would be at least a two step process. You would win, based on your registered copyright. The losing party might then notify the holders of the copyright for the original image, and then you’d get in trouble.
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