CHAPTER 3 DID I COPY? P AR T 1: S T R I C T L I A B I L I T Y Did I copy? This is the million, and sometimes the billion-dollar question. A recent $1.3 billion-dollar jury verdict illustrates the point. For reference the case is Oracle Corp. v. P a g e | 37
SAP AG, 734 F.Supp.2d 956 (N.D.Cal.2010) (the biggest copyright verdict of all time). This chapter deals with the threshold question - Did I copy? To determine that we must understand the law as it relates to copyright infringement. TIP: Defenses to copyright infringement are dealt with later in this book. We must begin, however, with an understanding of what you can and cannot do This chapter will walk through a step-bystep analysis of how to prove each element of copyright infringement. To establish copyright infringement, a rights holder must demonstrate: P a g e | 38
(1) ownership of a valid copyright; and (2) copying of original elements of the copyrighted work. Our examples throughout this chapter will refer to the picture of a surveyor on the next page. Just as a surveyor stakes out the “metes and bounds” of real property, we will be using the image of the surveyor to help show the “metes and bounds” of what constitutes copying – a sometimes tricky question. The metes and bounds of real property represent the property boundaries – that is the “four corners” of a square parcel.
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Copyright Boundaries
Copyrights have “Metes & Bounds” Just Like Real Property
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 2: C O P Y R I G H T O W N E R S HI P A U T OM A T I C
IS
The very moment you create the work is when you own a valid copyright in it. There is no requirement to register a copyright. There is not P a g e | 42
even a requirement that the work needs to be published before you own a copyright in it. TIP: The moment you apply paint to a canvas, take a photograph, or click “save” on your word processor you have created a copyrighted work. A. C O P YRI G HT R E GI S T R A T I O N S NOT NEEDED
ARE
Registration of your creative work (often times called a “copyright registration”) is not required to own copyrights. Copyright Registrations are dealt with in a later chapter. They are a good idea but not required. TIP: Copyright registrations create a legal presumption that the rights to the copyrighted work P a g e | 43
are owned by the holder of the registration. It isn’t necessary, but it makes sense to register your works! You automatically own a valid copyright in anything that was originally created by you and “written down” or otherwise “recorded.” B. C O P YRI G HT S E XI S T W HE N A RT I S “W R I T T E N D OW N ”
T HE
The legal buzz words are “fixed in a tangible medium of expression.” This recurring phrase simply means the work must be recorded in some physical medium. Examples of a physical medium include:
saving something to computer memory; a compact disk;
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canvas; a book; or a negative in photography.
A speech, dance, or music performance that is not recorded may not be protected by copyright law if it is not “fixed in a tangible medium of expression.” TIP: The speech manuscript, the choreography notations for the dance (whether done before or after the dance), or the recording of either will constitute copyrightable subject matter.
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C. O WNI N G A B O O K O R P A I N T I N G D O E S N OT G I V E T HE R I G HT T O COPY IT Simply owning a painting, book, photograph, or sound recording does not give you any copyright ownership in the work; you must have created it to have the copyright. Possession, in copyright law at least, is not ninetenths of the law. TIP: You can sell a book or even burn it if you wish because it is “personal property.” You cannot, however, make a copy of it. The distinction is covered later under the “First Sale Doctrine.”
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 3: D I D I C O PY ? It its most simple form, “copying” means making a copy. Examples of simple copying include:
saving an image from the internet on your computer; recording a TV show or song on the radio;
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making copies of an image using a copying machine; using a song in an advertisement; making t-shirts with a painting on them; and taking a picture of a statue.
Said another way, a copy is any art or image or other “creative work” from which a previous creative work can be recognized or reproduced. TIP: Merely downloading an image from the internet without permission onto your computer qualifies as a “copy” because the computer memory is a “physical medium,” even though we can’t really see it or touch it. There are many forms of copying, however, that are often misunderstood. These P a g e | 49
range from exact copying, as noted above, to what the law calls a “derivative work” – which is a new creative work based on a pre-existing work. Then, of course, there is the gray area “inbetween” exact copies and derivative copies. This in-between area is the “Continuum of Copying.”
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 4: C O N T I N U U M
OF
COPYING
There are many forms of copying, varying from copying a previous work directly, to basing something on a protected work, to adapting a previous work to a new medium. In P a g e | 52
this section of the chapter we will discuss how courts treat copying, starting with the most egregious examples of direct copying and progressing to examples where smaller portions of the original work are used but that nevertheless qualify as copyright infringement. The exact copying side of the continuum below is typically the easiest to prove.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 5: E X A C T C O P Y I N G The more a work is like an already copyrighted work and unlike anything that is in the public domain the more likely it will be deemed a “copy� or copyright infringement.
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A. E X A M P L E O F E X A C T C O P Y I N G : ZE BRA SUPREME BOOT S
Copyrighted Pattern
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Infringing Copy
Courts compare the similarity between two works from the perspective of an average lay observer. You as a reader of this book would be an average lay observer. TIP: Exact copying is often times the hardest to defend. In the above example, a court found that the boot on the right infringed the design of the boot on the left. This finding was because an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted zebra design on the boot on the left. Because the copying is so exact – the copyright owner need only show the copying and
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ownership. This type of copying is often hard to defend.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P A R T 6: S T R I K I N GL Y S I M I L A R C O PY I N G Strikingly similar where the two works are not “exactly� the same but they are so close that the similarities can only be explained by copying, rather than by coincidence, independent creation, or prior common source. In a famous case, Preston, the stuffed pig on the left in the image below, was found to P a g e | 60
infringe the copyright of Squealer, the Beanie Baby on the right, because Preston is strikingly similar to Squealer, but not to anything in the public domain. Despite having a different color, having toes when Squealer has none, having different nostrils, and having different ear placement the court concluded that the two stuffed pigs are strikingly similar.
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A. S T R I K I N G L Y S I M I L A R E X A M P L E : BEANIE BABY PIGS
“Strikingly Similar� Infringing Pig Toy
Copyrighted Beanie Baby Pig Toy
In another example of striking similarity, a court held that the shield logo in the middle of the image below infringed the sketched logo on the left, and that the two are so striking similar that their similarity supported an inference of access. Because the crest logo in the center constituted copyright infringement, the P a g e | 62
Baltimore Ravens were forced to change their logo to the non-infringing logo on the right. B. STRIKINGLY SIMILAR EXAMPLE: THE RAVENS LOGO CASE
Copyrighted Logo
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Infringed Protected Logo
Non-Infringing Revised Logo
C. S T R I K I N G L Y S I M I L A R E X A M P L E S : PHOTOSHOP
Back to our original surveyor example, how many of the following pictures would you consider strikingly similar to the original?
Flipped Image
Black & White Filter
Sepia Filter
In the first photo the original image is merely flipped, in the second a black and white filter is applied to the original photo, and in the third image a sepia filter is applied.
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TIP: Merely downloading the original image to your computer’s memory without permission or license is the first copyright infringement (an exact copy). Republishing the image with some changes, as noted, is a second infringement (either exact copying or “strikingly similar”) It is almost certain that courts would determine all of the images above to be exact copies or at least strikingly similar to the original photo. A “striking similarity” raises an inference of access to the original work even if there is no direct evidence of access. In other words, if two works are strikingly similar a court can assume that the person who created the infringing copy
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looked at or otherwise had access to the original creative work – hence the unauthorized “copy.” In theory the assumption of “access” can be rebutted. An artist may have independently created the exact same painting, but if the artist who painted it first admits to keeping the painting under lock and key in his house it would be logically impossible to infer access through striking similarity. TIP: Computer scientists set up “dark rooms” where the programmers have no access to preexisting programs. This type of evidence can be used to overcome the presumption of access.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 7: S UB S T A N T I A L L Y S I M I L A R COPYING Substantial similarity happens when don’t have “exact copying” or two works that are “strikingly similar.” At the “substantially similar” level a rights holder needs to also show “access.” A P a g e | 68
lower amount of substantial similarity is required when a high degree of access is shown. Without proof of access it is still possible for a copyright plaintiff to prove a case of infringement by showing that the works were “strikingly similar,” as noted above. Access is discussed more in the following section. A. T H E T E S T F O R “ S U B S T A N T I A L SIMILARITY”
Proof of substantial similarity is shown using different tests in different circuits, though the following two-part test provides a general overview of how courts determine substantial similarity. The first test requires the plaintiff to identify concrete elements based on objective criteria to show the similarity of ideas. Once the first test is satisfied, the second test is subjective and measures substantial similarity in P a g e | 69
expressions depending on the response of the ordinary reasonable person. A substantial similarity exists when an average lay observer would recognize the alleged copy as having been appropriated from the original copyrighted work. The copying does not need to be of every detail of the original work so long as the copy is substantially similar to the copyrighted work. A copyright infringement may even occur by reason of a substantial similarity that involves only a small portion of each work, and substantial similarity may also be found if none of the words or musical notes are identical. TIP: If you did not take the picture and you can’t license it, it is best to NOT use it – even if you change it. P a g e | 70
B. SUBSTANTIALLY SIMILAR COPYING EXAMPLE: MOSCOW ON THE HUDSON
In the famous “Moscow on the Hudson” case, a court decided the movie poster on the left was substantially similar to the previous magazine cover on the right:
Infringing Copy P a g e | 71
Original Copyrighted Work
The court had several reasons for finding infringement: (1) they are in a similar artistic style; (2) depict the same fictional city blocks; (3) use the same font for the street names, rivers, and oceans; (4) use the same font for the title; and (5) share a similar vantage point. Although many details of the two pictures are different, that did not change the fact that they are substantially similar. TIP: Sometimes less similarity is required in cases of substantial similarity than in situations dealing with exact copies or striking similarities because more proof of access is required with a substantial similarity. Due to the successful copyright infringement case, the movie studio was forced P a g e | 72
to use the movie poster below that was not substantially similar to the previous cover of The New Yorker.
The Revised Non-Infringing Version P a g e | 73
C.
SUBSTANTIALLY SIMILAR COPYING EXAMPLES: PHOTOSHOP PAINT FILTERS
The following images based on our original surveyor example would most likely be considered substantially similar to our original surveyor photo. In the first photo we have a charcoal sketch of the original image and in the second photo we have an oil painting based on the original surveyor image. They count as substantially similar, despite having obvious differences from the original photo, because the average lay observer would recognize that they used the original surveyor photo.
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“OTHER PHOTOSHOP FILTERS”
Substantially Similar “Versions” of the Surveyor D. N O T S U B S T A N T I A L L Y S I M I L A R COPYING: COPYRIGHT COW M AGAZINE
As another example, the “Copyright Cow” magazine cover below would not count as substantially similar to the New Yorker cover because the average lay observer would not recognize that it was appropriated from The New Yorker. The images and styles are completely P a g e | 75
original. The titling is arguably similar but the same was also true of the “Moscow on the Hudson� titling, which was not changed.
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Actual Cover From “The New Yorker” P a g e | 77
Copyright Cow “Inspired” Cover P a g e | 78
TIP: Copyright Cow is a newspaper column and magazine by the author of this book. Click on the image above and read a newsworthy take on intellectual property issues. When you consider the large number of qualities that can differ between two artistic works that a court considers substantially similar, it is natural to wonder how different two works must be to avoid a copyright infringement claim. E.
NOT SUBSTANTIALLY SIMILAR COPYING: ANGRY PIGS
In 2011 Rovio, the company that owns the copyrights to Angry Birds, sued a toy company that they alleged had infringed their copyright to produce Angry Birds toys. Images P a g e | 79
of the allegedly infringed Angry Birds-based green pig toys are above, as well as a picture of the allegedly infringing pink plush pig made by Roly-Poly.
Copyrighted Angry Birds Pig Toys Produced By Rovio
The Allegedly-Infringing Roly-Poly Pig Toy P a g e | 80
Even though these examples come from an actual lawsuit, it is hard to imagine a court finding these two creative works “similar” let alone “substantially similar.” What if you have two plush toys- both birds but one is round and the other is “triangle shaped?” Here is another example from the Angry Birds case.
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F.
NOT SUBSTANTIALLY SIMILAR COPYING: ANGRY BIRDS
Rovio’s Angry Bird
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Roly-Poly Bird
Rovio’s Angry Bird
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Roly-Poly Bird
The case was settled out of court, so we cannot know exactly what the court would have determined. We are fairly certain, however, that the Roly-Poly pig toy would not be considered substantially similar to the green pig toys because the average lay observer would not recognize that the design of the Roly-Poly pig was taken from the green pig toys from Angry Birds. The same also seems likely of the yellow bird toy. What would Big Bird say?
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Big Bird Shows us “Shapes” in the Next Section
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Outline of Big Bird
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 8: C O PY R I G HT D OE S N OT P R OT E C T B A S I C S H A PE S It is useful to look back at the Beanie Baby example earlier in this chapter and then compare it to the above Angry Birds toy example. Both examples involve plush toys, but in the Beanie Baby example the pigs were considered strikingly similar while the toys in P a g e | 88
the Angry Birds above did not even qualify as substantially similar. We will consider the outlines of the toys below to help show how similar they are. TIP: Copyright does not protect basic shapes like a “circle” or a “square”
Preston P a g e | 89
Squealer
Rovio’s Angry Bird
Roly-Poly Bird
Look at the outlines of the toys above and examine how similar their outlines are. The pigs from the Beanie Baby example are almost identical, while Rovio’s bird toy is much more triangular than the round Roly-Poly bird toy. The outline of two things is far from the only P a g e | 90
consideration when determining if they are substantially similar, but it’s useful to illustrate the minimum amount of similarity required for copyright infringement. Compare the outlines of any of the toys above to the outline of Big Bird below as an example of things that clearly would not be considered substantially similar.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 9: S UB S T A N T I A L L Y S I M I L A R COPYING AND ACCESS Access is defined as a “reasonable opportunity” to view the work in question. Access is a component of copying because you cannot copy something if you don’t have access to it. To show the defendant had access, there only needs to be proof that could lead a reasonable mind to conclude the defendant had a reasonable opportunity to access the copyrighted P a g e | 93
work before the defendant created his own material. This is usually demonstrated through a particular chain of events between the copyrighted work and the defendant’s access to that work (such as testimony that the defendant owned a copy of the protected work), or by showing that the copyrighted work has been widely circulated. TIP: You do not need to show the defendant actually had access to your work, just that the defendant had a reasonable opportunity to access the work. Courts assume people have a reasonable opportunity to see or hear works that are everywhere (the latest Black Eyed Peas song, for example).
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George Harrison subconsciously plagiarized??
TIP: The above image is in the public domain because it is a work of the U.S. federal government posted in the Wikimedia Commons. We will learn more about that in the chapter on “public domain.�
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Proof that the copyrighted work has been widely circulated can even be used to support a theory that someone copied it subconsciously! One court found George Harrison’s first solo single “My Sweet Lord” subconsciously plagiarized “He’s So Fine” by the Chiffons, and entered a judgment against him for $587,000 in 1976. Bright Tunes Music Corp. v. Harrisongs Music, LTD, 420 F.Supp.177 (S.D.N.Y. 1976).
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 10: D E R I V A T I V E W OR KS - B A S E D ON P R E -E XI S T I N G A R T , I M A GE S O R CREATIVE WORK The first exclusive right in copyrighted works is the right to prevent others from making “copies.” The second exclusive right is the ability to prepare “derivative works” based on the copyrighted work. P a g e | 98
TIP: The Copyright Act defines a derivative work as a work based on one or more preexisting works. A derivative work recasts, transforms, or adapts something into another medium, mode, language, or revised version, while still representing the original work of authorship. A. D E R I V A T I V E W O R K E X A M P L E : T H E WIZARD OF O Z “PAINTED PLATE�
A court ruled that this painting on the right below was a derivative work because it was not different enough from Dorothy character played by Judy Garland in the Wizard of Oz (seen below on the left). Since the painting is a derivative work the painter made an unauthorized copy of the copyrighted Dorothy character! P a g e | 99
Derivative Work
Dorothy Played By Judy Garland
TIP: Remember that it does not matter that you are doing the painting as a hobby instead of for profit, you still need permission to copy.
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B. DERIVATIVE WORK EXAMPLE: PHOTOSHOP SWIRL
Bringing our analysis back to our original surveyor photograph one last time, would you consider the image below to be a derivative work of the original? The reason courts would consider it a derivative work is because it is adapting the original photo into a revised version, while still representing the original work of authorship.
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Substantially Similar or Unauthorized “Derivative Work�
It is also possible that the image above could be considered substantially similar to the original image. Remember that making a copy of the original photo is the first infringement.
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TIP: The artist in the Hope case could have avoided a lawsuit by using a picture he had permission to use. The example showing how it was done shows that many different images could have been used. C. N O T A D E R I V A T I V E W O R K E X A M P L E : BEANIE BABIES GUIDE
Simply being based on a previous work, however, is insufficient to qualify a work as derivative. Another court found that a collector’s guide to Beanie Babies was not derivative because guides did not recast, transform, or adapt the things to which they are guides.
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The Beanie Baby Collector’s Guide That Was Not a Derivative Work
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The court said a guide is very much like a book review, which is a guide to a book and which no one supposes is a derivative work. This is the In Ty, Inc. v. Publications International LTD., 292 F.3d 512 (7th Cir. 2002) case.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 11: D E R I V A T I V E W OR KS : C O S PL A Y A N D C O PY R I GH T S Cos-play costumes are derivative works because they are recasting the work their costume is based on into a new medium while still representing the original work of authorship. In some cases they might also be “exact copies� P a g e | 107
“strikingly similar” copies or “substantially similar” copies. This means anyone who makes a costume based on an original work is required to obtain a copyright license from the owner if they do not want to commit copyright infringement.
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Cos-player Dressed As “Gay” Storm Trooper P a g e | 109
As a practical matter, however, it is unlikely cos-players will be sued unless they are trying to use their infringing costume to make a profit. Many movie studios and others who own copyright licenses tolerate cos-play because it is a form of free advertising, and also because they don’t want to anger some of the biggest fans of their works by suing them. Lucasfilms Vice President Howard Roffman made this comment after a lawsuit against a man who was trying to profit from Storm Trooper costume designs: "We do not intend to...discourage our fans from expressing their imagination, creativity and passion for Star Wars through the costumes and props they make for their personal use," Roffman said. "Rather, we see the Court's decision as reaffirming that P a g e | 110
those who seek to illegally profit from Star Wars will be brought to task, wherever they may be." 1 Every time someone dresses up in a homemade Storm trooper costume or “little mermaid� costume they are committing copyright infringement and are at risk for being sued. TIP: Do not confuse plagiarism with copyright infringement. Giving credit is an academic requirement, not a legal requirement.
1
http://www.businesswire.com/news/home/20080731005 818/en/Lucasfilm-Ltd.-Wins-Copyright-Infringement-CaseBritish
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They are liable for copying if their work is strikingly or substantially similar to the original and they had access. They are liable for infringing the right to make derivative works if their costume still represents the original work of authorship. The above quote, however, outlines a belief that is common among rights holders that they will only enforce their copyrights against people seeking to profit from infringement. The bottom line is that you can always be sued for infringement, some rights holders simply choose not to in specific situations.
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Original Disney “Little Mermaid” P a g e | 113
Cos-Play “Little Mermaid” P a g e | 114
TIP: Rights holders typically do not permit infringement to be used to make a political statement. Lucasfilms, now owned by Disney, for example, is not likely to allow the Tea Party to use Storm trooper costumes at a rally in D.C. Interestingly, a “gay� storm trooper seems like a non-issue these days.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 12: D E R I V A T I V E W OR KS : F A N F I CT I O N , “S L A S H F I C T I ON ” & C O P Y R I G HT S Fan fiction, or “Fanfic,” refers to stories and novels that adapt characters and settings from other people’s creative work. Fan fiction authors do not make money from their work. One of the first creative works that attracted fan fiction was The Man from U.N.C.L.E., a TV show from the 1960s. A photo from the TV show is featured below. P a g e | 117
Main Characters Robert Vaughn (left) and David McCallum
The Man From U.N.C.L.E. Logo
TIP: The above photos were taken from the Wikimedia Commons.
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Star Trek first came on the air during the same time frame as The Man from U.N.C.L.E. and inspired legions of fan fiction authors. One subsection of Star Trek fan fiction featured Kirk and Spock in a homosexual relationship and became so popular that it became known as Kirk/Spock, and then known as K/S, followed eventually by simply being known as “slash.” “Slash” is now a generic term for any variety of fan fiction that features two same-sex characters in a romantic relationship. TIP: Often times “fan” copying is tolerated by bands and even movie studios. It is still copyright infringement. This is discussed more in the section on “Cos-Play.” P a g e | 119
Captain Kirk & Mr. Spock Lovers or Copyright Infringement?
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The question is: are Fanfic or slash fiction writers committing copyright infringement? They are certainly using characters and settings from copyrighted works. If the Fanfic stories are strikingly or substantially similar to the stories they are based on and the Fanfic author had access to the original they will be liable for copying. They are liable for infringing the right to make derivative works if their story still represents the original work of authorship. Orson Scott Card and Anne Rice are among many authors that aggressively defend the copyrights to their characters, meaning they do not allow Fanfic based on their work. Authors such as J.K. Rowling and Stephenie Meyer, on the other hand, allow Fanfic to proliferate unchecked. There is no legal precedent because P a g e | 121
Fanfic authors generally comply when they receive cease-and-desist letters from the authors of the original, so we do not know precisely how it would play out in court. In the end, the legal analysis pertaining to Fanfic is similar to our preceding analysis of Cos-play. In both situations people are using copyrighted characters without permission, and the question of what is acceptable is often decided by the rights holder. TIP: Some fan fiction may also fall into the fair use exception that will be discussed extensively in a different chapter. Many rights holders are willing to allow people to use their characters for fun, but bristle at the idea of their characters being used for profit or to advance political agendas. Some P a g e | 122
rights holders, however, pursue all unauthorized uses of their characters which means the safest way to avoid liability will always be to invent your own characters.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P A R T 13: D E R I V A T I V E W OR KS : O B AM A “H O PE ” P OS T E R One of the most recent famous examples of a derivative work concerns Shepard Fairey and his famous Barack Obama “Hope” poster. P a g e | 125
On the right below is the photograph, copyrighted by the Associated Press, which the artist used to create the poster on the left. The case also settled out of court so we do not know for sure how a judge would have ruled, but we can apply the preceding analysis to try to determine how the case would have been decided. It is entirely possible that the judge would have ruled the poster is strikingly similar to the original copyrighted photograph. Sure, there are many differences, but it is not a stretch to say that these two images are at least as similar as the works in the Beanie Baby or the Baltimore Ravens examples, and judges in those cases decided the works were strikingly similar.
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Allegedly-Infringing Poster
Copyrighted AP Photo
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strikingly similar because Fairey certainly had access to the original image. Remember that the only advantage of “striking similarity” over “substantial similarity” is that less evidence of access is required. The only way Fairey would not have been liable for copyright infringement under a substantial similarity analysis is if the judge determined that an average lay observer would not recognize the “Hope” poster as having been appropriated from the original copyrighted work.
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Showing Fairey Could Have Used Non-Copyrighted Photo to Make “Hope” Poster
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TIP: The artist first claimed that he used the photo shown above (one he had permission to use). It turns out he was “mistaken.” The takeaway here is BE CAREFUL about what you say in court. ALWAYS tell the truth. The “Hope” poster, however, could also have been determined to be illegal copyright infringement of the Associated Press’s right to prepare derivative works based on the original image. The only way the “Hope” poster would not constitute an illegal derivative work is if a court determined the poster no longer represents the original work of authorship. That is likely why the case settled.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P A R T 14: D E R I V A T I V E W OR KS : A R T I S T VS. ARTIST? Do we want to live in a world that limits artist like Fairey from creating such works? In the Obama case, however, it was clear the Hope poster could have been created using a different photo.
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Other Examples of the Artist (Fairey’s) Work: The Artist Who Made “Hope” Poster
Is that, however, always true when some images become part of the cultural fabric? Below are some other noteworthy examples from the same artist worth considering.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 15: T HE C O PY I N G M Y T HS C O P Y R I G HT L A W
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Now that we have surveyed what qualifies as copying, we are going to debunk a few common myths about copyright law that persist on the internet and elsewhere. As you consider these myths, please try to apply what you have learned in this chapter to determine why these myths are not accurate statements of copyright law in the United States. P a g e | 136
Myth Busters No. 1
If I change an original creative work 15-20% it isn’t copyright infringement There is no threshold percentage amount of change that allows you to avoid copyright infringement. As a practical matter, it would be very difficult to determine the exact percentage amount that a work has change.
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Myth Busters No. 2
If I change an original creative work 15-20% it isn’t copyright infringement If, hypothetically, you could change something exactly 20%, it is very likely that it would still be a copy or a derivative work. It still qualifies as a copy if it is at least substantially similar and there is proof of access to the original. The changed work qualifies as a derivative work if it still represents the original work of authorship, and it would still represent the original work if 80% of it is copied from the original.
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Myth Busters No. 3
“It’s legal to copy an original creative work as long as I give the author full credit.”
Under the Copyright Act it is the copyright owner, and only the copyright owner, that has the right to reproduce an original creative work. If you have permission from the owner to use the work, you don’t need to mention the owner’s name at all unless the owner specifically conditions permission on giving them credit.
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Myth Busters No. 4
“It’s legal to copy an original creative work as long as I give the author full credit.”
If the copyright owner has not given you permission, but you give them full credit for their work, it’s the same as stealing a painting from your neighbors house but making sure everyone knows where you got the painting from.
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Myth Busters No. 5
It isn’t copyright infringment for me to use a Warhol painting or Ansel Adams photo as the basis of a painting I’m doing as a hobby
If your hobby painting is substantially similar to the original, and you had access to the original, your painting qualifies as a copy. Painting your own copy of an Andy Warhol painting still qualifies as a copyright infringement if you do not have permission to use the original.
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Myth Busters No. 6
It isn’t copyright infringment for me to use a Warhol painting or Ansel Adams photo as the basis of a painting I’m doing as a hobby
A painting of an Ansel Adams photo would likely qualify as a derivative work if the painting is determined to be based on and represent the original photo. Recasting the photo into the new medium of paint and canvas, while still representing the original photo, is a classic example of a derivative work.
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Myth Busters No. 7
I can print cd covers for my indie band that incorporate a poster I saw in the street In this situation you clearly have access since you saw the poster on the street, so the CD cover will count as a copy if it is substantially similar to the original poster.
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Myth Busters No. 8
I can print cd covers for my indie band that incorporate a poster I saw in the street Also, it is likely the CD cover will count as a derivative work if it is based on the poster and still represents the poster. Just because your band may be small and just starting out does not give you immunity to commit copyright infringement.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 3 DID I COPY? P AR T 16: J U S T T HE E S S E N T I A L S C O P Y R I G HT L A W
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Here are the “essentials” of Copyright Law. P a g e | 146
Just the Essentials
“Bite Sized”
If you download a song or “right-click” to download an image from the internet without permission you likely committed copyright infringement.
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Just the Essentials
“Bite Sized”
The Threshold for “Did I Copy” is very low in copyright cases. Be careful. If you didn’t buy or create the image or art- get permission!
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist Letters)
Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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