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Avoiding Copyright Infringement: When Has an Artist Infringed

by Mark Monlux

In Lee Wilson’s The Advertising Law Guide, in the chapter “Copyright Infringement and How to Avoid It,” he writes:

“The circumstantial evidence test for copyright infringement by unauthorized copying 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. For example, unless you have spoken directly with the creator of a piece — be that a 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.

Let’s do a “What If?”

What if you found of a photo a fireman drinking a big ol’ 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 causes him to lose respect, lose 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 ol’ jug of beer, then 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.

This article was originally published in the Graphic Artists Guild column, Dear Mark. www.markmonlux.com

© 2009 All Dear Mark materials are copyrighted by Mark Monlux, and may not be reproduced in any way without expressed written permission.

DISCLAIMER: To the best of my action or belief the material posted on “Dear Mark” discusses general principles of law in response to issues of concern to the illustration community. Nothing posted by Mark Monlux should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case.

Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

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You’ve discovered that someone is using your work without your permission. Rather than responding on a personal level and being affronted that someone has stepped on your dignity by using your work without permission, respond by thinking how you can quickly resolve and even salvage the situation financially.

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People who believe that their copyrights have been infringed often have no idea how complicated copyright infringement lawsuits are. This doesn’t mean that there are no issues worth going to court over. However, the U. S. judicial system is so complex that a lawsuit can leave you as bloodied as a fistfight; even if you win you are bruised by the experience.

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