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  #16   Report Bad Post  
Old 04-23-2017, 08:24 AM
Mike L's Avatar
Mike L Mike L is offline
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Re: Is everything legally off-limits?

Jim, really sorry to hear that. For a couple decades I created digital art which I sold on products such as shirts, mugs, etc. I try to be original, but unintentionally ran afoul of IP law on three occasions. Won one, lost one, and didn't care enough to fight the other one. I eventually sold my equipment and closed all my POD "shops", but I still consult an IP attorney at least once per year. Especially now that I'm learning to paint with something other than a mouse.

I hope you don't mind, but I'm going to make some comments based on some of those discussions.

Attorneys who take IP cases, and the judges who hear them, are well versed in the law. Creativity, per se, does not come into the equation beyond discovering if an item can be copyright protected and, if so, who owns those copyrights, and then determine if a copy of that item is in violation of the law. Turns out a copy is a copy.

As to being given an opportunity, one might want to consider the reason for copyright law - to protect the original creator of a work. Yes, the opportunity exists to rebut the original claim to copyright, and in this case a filing can be made to stay or vacate the order. However, until a court does that, the copy must be surrendered.

Nothing off with this ruling. An unauthorized copy of a copyrighted work (photograph) was made and then a second copy (painting) was made. Perhaps without knowing the item was copyright protected, but that doesn't make the act legal or right.

As pointed out there are exceptions, but they are few and very narrow in what is permitted. Fair use or for educational purposes or any other reason is not permission to copy an entire work or even a major portion of it. Fair use is probably the most misunderstood by us laypeople, and it doesn't mean we can willy-nilly copy anything we want.

As to the rest of your works? Probably not many problems there, but if you are not sure, talk to an attorney. Next time someone knocks on your door it might cost you some money. To avoid that please discuss this with a licensed attorney.

Rule of thumb - if you didn't create it get permission before making that copy. Especially at car shows - some owners don't mind at all, and others mind a whole lot. Maybe put yourself in their shoes? Besides, what's the worse that can happen? More than likely it will prevent a recurrence of this situation with someone else.

Disclaimer -I am not a lawyer and I do not portray one on the internet. If you want real answers to legal questions consult with a licensed attorney.
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Old 04-28-2017, 06:38 AM
zardoz71 zardoz71 is offline
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Re: Is everything legally off-limits?

We got in Germany one major decision from our Federal Court of Justice in favor for the Artist that was threating if you could photograph or paint in the public in this case a ship that would have a copyrighted motive (paint) on it, similar to the case you would have here in the US.

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No 56/2017

Federal Court of Justice for Panoramic Freedom
Judgment of 27 April 2017 - I ZR 247/15 - AIDA Kussmund

The I. Zivilamt of the Federal Court of Justice, which is responsible for copyright law, has decided today that the so-called panoramic freedom extends to works of art that are not stationary.

The applicant organizes cruises. Their cruise ships are decorated with the so-called "AIDA Kussmund". The motive consists of a mouth painted on the bow of the ships, painted on the side of the sides of the walls, and from these outgoing waves. The motif was created by a visual artist. It has given the applicant the exclusive right to use.

The defendant operated a website, on which he offered excursions on landings on cruises in Egypt. On this page, he published the photo of the side view of a ship of the applicant on which the "AIDA Kussmund" can be seen.

The applicant considers that the defendant infringed her rights to the "AIDA Kussmund", which is protected by copyright as a work of applied art. The reproduction of the motif painted on the cruise ship is not covered by the provisions of Section 59 (1), first sentence, of the UrhG *, the so-called panoramic freedom, since the work of art is not permanent on public roads, streets or squares. It has requested that the defendant be prohibited from making the "AIDA Kussmund" publicly accessible in this way. In addition, it has sought the determination of its liability for damages.

The Landgericht dismissed the action. The appellant's appeal has been unsuccessful. The Bundesgerichtshof rejected the applicant's revision.

According to the Federal Court of Justice, the defendant could post the photograph of the cruise ship with the "AIDA Kussmund" into the Internet and make it publicly accessible because the "AIDA Kussmund" depicted in the sense of § 59 para , Streets or squares.

For the purposes of this provision, a work is to be found on public roads, roads or squares, if it can be perceived from places which are open-air and freely accessible to all. This requirement is also met if a plant is not stationary and is located in different public places in succession. A work is permanently in such places, if it is from the point of view of generality to be there for a longer period of time.

The panorama clearance therefore covers, for example, works on vehicles which are used in the public road transport as intended. This can be, for example, advertising on buses or trams, which meets the requirements of works of applied art. Photographing and filming in the public space would be restricted too much if the inclusion of such vehicles could trigger copyright claims. Artists who create works for such a use must therefore accept that their works are photographed or filmed in these public places without their consent.

Subsequently, the defendant could photograph the "AIDA Kussmund" painted on the cruise ship of the applicant and put it on the Internet. The cruise ship, decorated with the "AIDA Kussmund", is permanently located in public places because it is destined to be used for long periods on the high seas, in the coastal sea, on seawaters and in seaports, Anyone who is freely accessible can be perceived. These generally accessible waters can be viewed from or, for example, in the port, from the freely accessible mainland. It does not matter that the "AIDA Kussmund" moves along with the cruise ship and temporarily stops in places which are not open to the public, such as in a shipyard.

Pre-instances:

LG Köln - Judgment of 4 March 2015 - 28 O 554/12

OLG Cologne - judgment of 23 October 2015 - 6 U 34/15

Karlsruhe, April 27, 2017

* Section 59 (1) sentence 1 UrhG:

It is permissible to reproduce, disseminate and publicly reproduce works, which are permanently on public paths, streets or squares, by means of painting or graphics, by means of photographs or by film.

Press Office of the Federal Court of Justice
76125 Karlsruhe, Germany
Telephone (0721) 159-5013
Fax (0721) 159-5501

http://juris.bundesgerichtshof.de/cg...&pos=1&Blank=1 (German)
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Old 04-28-2017, 07:57 AM
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Mike L Mike L is offline
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Re: Is everything legally off-limits?

Quote:
Originally Posted by zardoz71
We got in Germany one major decision from our Federal Court of Justice in favor for the Artist that was threating if you could photograph or paint in the public in this case a ship that would have a copyrighted motive (paint) on it, similar to the case you would have here in the US.


In the US a name or short phrase cannot be copyright protected - trademarked, yes, but not copyright protected.

Two issues often confused, at least here in the US is public domain and public view. An image or other created work is the legal concept in which the artist surrenders her/his copy rights to the work or the work is old enough that it is no longer eligible for copy right protection. Public view means only the public can see it much like a mural painted on a building. Just because it is available to be seen by anyone walking down the street does not mean the artist granted permission to make copies of it.

Again, I am not an attorney and did not portray on stage or screen. For legal answers to legal question consult a licensed attorney.

R/Mike
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