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by Mark Monlux, markmonlux.com
Dear Mark,
I have been subscribing to the Guild's eNewsletter for a while now and I have a question. Just when is a piece of work infringed upon?Thanks,
Need to Know
.
_________________________________________________________________
.
Dear
Need to Know,
In
Lee Wilson's "The
Advertising Law Guide" in
the chapter "Copyright
Infringement and How to Avoid
It," page
80, he writes:
"The circumstantial evidence test for copyright infringement by unauthorized coping has three parts:
1. Did the accused infringer have 'access' to the work that is said to have been infringed so that copying was possible?
2. Is the defendant actually guilty of 'copying' part of the plaintiff's protectable expression from the plaintiff's work?
3. Is the accused work 'substantially similar' to the work the plaintiff says was copied."
Let me try an clarify that a bit: If you find a piece of art or photo and use it without the creator's permission, then it is "yes" to all three and you are infringing.
If you take a photo and trace it to do an illustration, then it is "yes" to all three and you are infringing.
Now, we are only touching the tip of the iceberg here as these are just the preliminary questions you need to ask. Once you start studying copyright law you realize the world of liability is much larger than you thought.
An example: Unless you have spoken directly with the creator of a piece, be that by design, photography or illustration, how can you be sure that the model used to create the image signed a waiver to have their personal image used?
Professionals take the necessary precautions to make sure that their work is original and free from worry.
Lets do a "What If"
What if you found a photo a fireman drinking a big ole jug of beer in a drawer of a desk you bought at a garage sale. You don't know who the guy is or who took the photo. But it is perfect for a beer label for the Fireman's Ale project you have going. After the label gets printed the Fire Marshall of Fictitious Town sues your client and you for slander, privacy rights, and loss of income.
Turns out he's a past alcoholic and while the photo was taken before he joined A.A., having his picture on the label of the beer cause him to loose respect, loose his job, and on the whole ruined his life. Now he is coming after your client and you. So is his brother-in-law, the guy who took the picture.
What's the solution? If you wanted a picture of a Fireman drinking a big ole jug of beer, than describe the scene to your "creative content provider" or to your Art Director. You will get the positive results you want, and not face the unknown.
I strongly suggest Lee Wilson's book to anyone in the industry. It explains copyright in layman's terms and offers a lot of real life examples.
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