If you see a graphic you like on a clipart website, then take that graphic as a model and draw it yourself, is that copyright infringement?
Let’s assume for the sake of argument that you used the same colors and shapes, but its all 100% original creation by you, but you copied the idea from another source.
Just curious… anyone know?
Yes, it’s copyright infringement.
It’s not that cut and dry. Ideas can’t be copyrighted. Graphics can.
But, you can take a copyrighted graphic and change a enough of it and claim copyright of the derivitave work under fair use.
IANAL though.
Thanks.
I guess it really depends on how much you change the design and how generic it is. So using a reverse “Swoosh” and calling yourself ‘Neke’ would be illegal copyright infringement on Nike? or not?
Also - alot of websites copy the layout format of another website. If your layout format is very unique and another website uses it, is that copyright infringement?
PS. Just for the record I’m talking about original works that mimic copyrighted works.
You can infringe on someone’s idea or concept. For example, there’s a famous photograph of Franklin Delanor Roosevelt’s wheelchair on the porch of his house. An ad agency for DuPont used the photograph in an ad mockup to present the concept to DuPont. Then the agency took a “similar” photograph of a “similar” wheelchair on a “similar” porch and used it in the actual ad. The original photographer took DuPont and the agency to court and was awarded $40,000 in damages.
There’s also Amazon’s “one-click purchasing” that they sued (and won) Barnes and Noble for copying. Macromedia lost a lawsuit brought by Adobe for “copying” the idea of tabbed palettes that Adobe first introduced in Photoshop.
But, you can take a copyrighted graphic and change a enough of it and claim copyright of the derivitave work under fair use.
Yes, but how much is “enough”? A design instructor once advised us not to play the “percentage” game. You never know if you’ve crossed the line until you wind up losing in court.
Fair use is considered valid when the copyrighted material is used for the purpose of criticism, comment, news reporting, teaching, scholarship, and research. It’s never considered valid for simply avoiding purchasing a work (which it sounds like you’re doing by copying the graphic). Why not just buy the graphic and modify it?
If you were doing a spoof or parody of Nike, then that would fall under fair use. If you decided to open up a shoe company under that name, then expect a multi-million dollar lawsuit to be filed against you.
If you copy some else’s website, they can file a complaint with your hosting company. Under section 512c of the Digital Millennium Copyright Act, your hosting company must remove the copyrighted material, or else be liable for damages.
IMO, it’s simply best to avoid putting yourself in these types of positions.
This doesn’t sound correct at all. I’d like to hear more about this case because it seems to rather blatantly contradict the letter of the law. One photographer can’t claim infringement on all photographs of a apples in a bowl because he took the first photo of apples in a bowl.
These are instances of patent disputes, and are thus completely irrelavent. Patents and copyrights are two completely different forms of IP.
Fair use also comes into effect when creating a new work based on a copyrighted work, which this is an instance of. But, like you mentioned, this does turn into the percentages game so you must evaluate each situation individually.
Only if you do not file a counter-claim with the hosting company within a certain number of days, not “must”. If you do, the host is not liable at all. Please be precise when offering advice.
First of all, it was not my intention to start an argument, but to make a point, that is bad from both a business and legal standpoint to put yourself (and possibly your client) into that sort of position.
Fair enough. I’ll conceed that point.
I read the article in a design magazine some years back (probably in HOW or PRINT, since that’s what I was reading back then). I remember quite specifically what the article said, and I’ve told everything it contained. So I’m afraid I’m going to have to ask you to take my word on it.
(The only reference I could find online was a posting on a message board referring to a photographer that successfully claimed that any photo of FDR’s wheelchair is derivative of his photo of FDR’s wheelchair.)
On the other hand, there’s also a case where someone created a black Bart Simpson. Although he was identical in every other way, the judge ruled fair use. Since the area of fair use is subjective, resolving such a dispute usually involves a lawsuit. Are you willing to subject yourself to that?
According to Section 512, the service provider “must” respond expeditiously to remove or disable access to the material claimed to be infringing. The host can restore the material only if you file a counter-claim. The host must inform the complainer that you’ve filed a counter claim and disable access to the material for “not less than 10, nor more than 14, business days following receipt of the counter notice.” So you (or your client’s) site will be down for at least 10-14 days.
A counter-claim must contain certain elements to be valid. One of these is a statement that you will accept “service of process” from the complainer. This means that you agree to be named as a party to a lawsuit.
Now, if this website in question is one you’ve designed for a client, then your client will be the one who receives notification from his hosting company that someone has filed a notice of infringment. It is also your client that will have to file a counter-claim, agreeing to accept service of process. What do you think that will do to the relationship you have with your client? Do you suppose, after being dragged into court, DuPont ever used that agency again?
I’ll refer back to the title of this thread and optimus_prime’s original post:
Legal to redraw graphics?
If you see a graphic you like on a clipart website, then take that graphic as a model and draw it yourself, is that copyright infringement?
Let’s assume for the sake of argument that you used the same colors and shapes, but its all 100% original creation by you, but you copied the idea from another source.
It sounds to me like he’s intending to simply trace an existing graphic to merely avoid having to purchase it, which would definitely not be considered fair use. But suppose he did modify it in some way and used it in a client’s logo. In a similar scenario to the website example above, the client will be the one dragged into an infringement dispute and possible into court.
I wasn’t aware of that point, thanks for the information.
And I can agree with pretty much everything else in that post. The main points:
There was some misleading info above about derivative artwork.
Artwork derived from an exsisting artwork without permission, can, and usually is considerred a copyright infringment of the original artwork.
In addition to the FDR case above (which I had not heard of, but is interesting to note), another key legal case involving this issue involved Vanity Fair and Naked Gun 33 1/3. A photographer (Ann Leibowitz) made a now famous image of Demi Moore pregnant and nude for Vanity Fair. The naked gun people played on that image by getting a nude preggie female model to pose in the same position, and then superimposed Leslie Nielson’s head on the body. They were sued. The case went back and forth both ways for all the parties and finally made it to the US Courts of Appeal (New York) before it was settled. Both parties ended up out tons of money, and the appeals court did rule it was a derivative work and thus infringment in most cases, but in this case was a “Parody” and thus an exemption to the infringment rule.
So tread lightly.