We published an article, titled Can You Copyright Everything?, that addressed a recent issue one artist was having with regard to alleged copyright infringement of that artist’s sugar skull designs. Though we firmly support crediting and compensating artists for their artwork, there remains a question in our minds regarding the copyright-ability of sugar skull designs in general. Is this art subject too basic to foster strong delineation of styles and ideas?
What are your thoughts on this scenario:
Could an artist copy this keychain design in a drawing and then copyright that drawing as an original work of art? Add your thoughts on Why or Why Not in our comments section.
I’m pretty sure that’d fall under the definition of “derivative work” as defined by US copyright law. In such cases, as far as I understand it, they’d only be able to copyright the elements they contributed to the original work and not the contents originated by another party. Even though the derivative work copyright owner doesn’t own the copyright of the original material, they do have the right, again, under US copyright law, to reproduce the derivative in any manner they see fit.
I’m not a law scholar, so this is just my understanding.
You can read more on derivative work here: http://en.wikipedia.org/wiki/Derivative_work
So in the case of the key chain, that would probably not be considered derivative work and be straight copyright infringement and most certainly couldn’t be copyrighted by the second party. Now if they changed it by making the teeth all sharp fangs, all of the orange bits pink and put fire in the eye sockets, then we’d be looking at a derivative work.
Thank you for your contribution Alec. With regard to your explanation of changed or derivative work, I think the subject of Shepard Fairey’s civil and criminal lawsuit battles recently have shed some much needed light on the pitfalls of appropriation: http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/
I know that fan-art also runs into this same sort of problem often. As best as I understand it, an artwork must contain significant changes to an original piece to constitute being recognized as a new derivative piece. The difficulty of creating recognizable difference can be particularly challenging when dealing with simplified representations of a subject as in the case of the artwork under question of the lawsuit we discussed in “Can You Copyright Everything?”