Copyright question?
Five
The paintings are copies of famous paintings, however,
they are painted by a painter who is not the original
artist, and signed by the artist who painted the copy.
Is this a violation of copyright? Could I legally
sell such paintings?
Would this be the same as taking a famous photo
advertisement, replacing the model, and creating a
close likeness to the famous ad, and sell it to the
competetor?
Mxsmanic
> I was offered a partnership selling oil paintings.
> The paintings are copies of famous paintings, however,
> they are painted by a painter who is not the original
> artist, and signed by the artist who painted the copy.
> Is this a violation of copyright?
Technically, yes, although painters can more easily get away with
infringement than photographers, because they are perceived as providing
more "creative input" into every painting, even when it's just a copy.
Much depends on how accurate the copy is, and what the original painting
showed.
Also, some old paintings have expired copyrights, so they can be copied
freely.
> Could I legally sell such paintings?
If you knowingly sell infringing paintings, you might have some
liability.
> Would this be the same as taking a famous photo
> advertisement, replacing the model, and creating a
> close likeness to the famous ad, and sell it to the
> competetor?
Yes, very similar, except that you are just selling the images, not
producing them.
--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
Don Stauffer
to be too definitive on this. It is a gamble. It depends on how
accurate the copy is, or is the painter just painting the same general
idea. An idea is not patentable, but again whether the painting
represents a copy or merely the same idea will be up to a judge or jury
if the original copyright holder decides to sue.
--
Don Stauffer in Minnesota
stau...@usfamily.net
webpage- http://www.usfamily.net/web/stauffer
PTRAVEL
"Don Stauffer" <stau...@usfamily.net> wrote in message
news:40C9BC46...@usfamily.net...
> Ultimately, infringement is the decision of a judge or jury. It is hard
> to be too definitive on this. It is a gamble. It depends on how
> accurate the copy is, or is the painter just painting the same general
> idea.
No, it is not hard to be definitive about this.
If the "famous paintings" from which the copies are derived are protected by
copyright, then the copies are infringing.
If the originals are not protected by copyright , then the copies are not
infringing.
Period.
An idea is not patentable, but again whether the painting
> represents a copy or merely the same idea will be up to a judge or jury
> if the original copyright holder decides to sue.
There is a specific analytic framework for determining substantial
similarity (which is the test for giving rise to the inference of copying.
Mxsmanic
> If the "famous paintings" from which the copies are derived are protected by
> copyright, then the copies are infringing.
So reproducing a photorealistic painting of a common tourist attraction
shown in an unremarkable way is infringement? I don't think so. How
would you even prove that it were a copy of the painting?
Are photos taken by an automatic photo machine copyrighted? If so, by
whom? What about images taken by surveillance cameras?
FWIW, at least in France, recordings of natural sounds are not protected
by copyright.
PTRAVEL
> PTRAVEL writes:
>
> > If the "famous paintings" from which the copies are derived are protected by
> > copyright, then the copies are infringing.
>
> So reproducing a photorealistic painting of a common tourist attraction
> shown in an unremarkable way is infringement? I don't think so.
Well, you think wrong. Copyright infringement results from making an
unauthorized copy. Period. There is no "photorealistic paintings of
common tourist sites" exception.
> How
> would you even prove that it were a copy of the painting?
That's a different question entirely. Copying in an infringement
action is proved either directly or inferentially. Copying will be
inferred when there is proof of access to the original and substantial
similarity. This is evaluated on a sliding scale, i.e. little
opportunity for access requires proportionally more substantial
similarity, and vice versa. However, if it can proven that there was
no access, e.g. the original was always locked in a drawer, then there
cannot be copying, regardless of the amount of substantial similarity.
It's late in the day, and I'm tired, so I'm not going to explain
about substantial similarity, but you can do a google search on my
name (tauger) and the term -- I've written on it before.
>
> Are photos taken by an automatic photo machine copyrighted?
Yes.
> If so, by
> whom?
By the person who positioned the machine.
> What about images taken by surveillance cameras?
They're protected by copyright as well -- the amount of selection
involved in positioning the machine constitutes sufficient creativity
to result in a protectable work of authorship.
>
> FWIW, at least in France, recordings of natural sounds are not protected
> by copyright.
I don't know anything about French law, so I'll take your word for it.
It's certainly not the case under US law.
st...@temple.edu
> I was offered a partnership selling oil paintings.
> The paintings are copies of famous paintings, however,
> they are painted by a painter who is not the original
> artist, and signed by the artist who painted the copy.
> Is this a violation of copyright? Could I legally
> sell such paintings?
The depends on the country where your business exists.
Free legal advise is worth what it costs. Before you
invest in this business, consult with an attorney who
specializes in intelectual property law.
Mxsmanic
> Well, you think wrong. Copyright infringement results from making an
> unauthorized copy. Period. There is no "photorealistic paintings of
> common tourist sites" exception.
How do you prove that one painting is a copy of another, photorealistic
painting?
> That's a different question entirely.
Perhaps, but if you can't prove it, it is effectively not infringement.
> Copying will be inferred when there is proof of access
> to the original and substantial similarity.
In that case, there are millions of people infringing on someone's
copyright on a picture of the Eiffel Tower. I wonder who holds the
original copyright on the standard photo that everyone takes? Certainly
everyone has access to th eoriginal, and the similarity is very
substantial indeed.
> By the person who positioned the machine.
"Positioned" in what way? And if this is the case, how is anyone able
to use the photos printed by the machine without a license?
Mxsmanic
> The depends on the country where your business exists.
> Free legal advise is worth what it costs. Before you
> invest in this business, consult with an attorney who
> specializes in intelectual property law.
Keeping in mind that attorneys will always advise the safest path, no
matter how unworkable or impractical it will be. And keeping in mind
also that almost any litigation in IP is a roll of the dice, which means
that an attorney is barely any more likely to be able to predict
outcomes than a stranger walking down the street (or posting to USENET).
PTRAVEL
> PTRAVEL writes:
>
> > Well, you think wrong. Copyright infringement results from making an
> > unauthorized copy. Period. There is no "photorealistic paintings of
> > common tourist sites" exception.
>
> How do you prove that one painting is a copy of another, photorealistic
> painting?
I explained it in my last post.
>
> > That's a different question entirely.
>
> Perhaps, but if you can't prove it, it is effectively not infringement.
Nonsense. Proof of a tort and a tort are two different things.
>
> > Copying will be inferred when there is proof of access
> > to the original and substantial similarity.
>
> In that case, there are millions of people infringing on someone's
> copyright on a picture of the Eiffel Tower.
Wrong. You can take all the pictures of the Eiffel Tower that you want.
You cannot take pictures of someone elses picture of the Eiffel Tower
without infringing the _picture's_ copyright.
> I wonder who holds the
> original copyright on the standard photo that everyone takes?
All copyright maxim: "You can copy the original, but you cannot copy the
copy."
> Certainly
> everyone has access to th eoriginal, and the similarity is very
> substantial indeed.
You don't seem to understand the concept of copyright at all. Copyright is
protection against, inter alia, copying extended to original works of
authorship that are fixed in a tangible medium. Anyone is free to
photograph the Eiffel Tower -- it is in the public domain (I won't
complicate the discussion by addressing whether it is sculpture or
architecture). Anyone is free to take their photograph from across the
Seine. No one is infringing anyone by doing so. However, if you copy _my_
photo of the Eiffel Tower, you have infringed the copyright in my photo.
>
> > By the person who positioned the machine.
>
> "Positioned" in what way?
"Positioned," as in "aimed the camera."
>And if this is the case, how is anyone able
> to use the photos printed by the machine without a license?
It depends on what you mean by "use."
PTRAVEL
> st...@temple.edu writes:
>
> > The depends on the country where your business exists.
> > Free legal advise is worth what it costs. Before you
> > invest in this business, consult with an attorney who
> > specializes in intelectual property law.
>
> Keeping in mind that attorneys will always advise the safest path,
Nonsense. You don't know many attorneys. I advise what's in the interest
of my clients, not the "safest path." Risk/benefit analysis is, at core, a
business decision and not one that I make.
> no
> matter how unworkable or impractical it will be.
As I said, you know little about attorneys and what we do.
> And keeping in mind
> also that almost any litigation in IP is a roll of the dice,
More nonsense. I'm paid, and rather well, to provide my clients with
predictions as to what the results of actions are that they propose to take.
If I was often wrong, I'd have no clients. As for litigation, I've never
lost a case. Hardly a roll of the dice.
>which means
> that an attorney is barely any more likely to be able to predict
> outcomes than a stranger walking down the street (or posting to USENET).
Typical statement of one who is ignorant of the law, as well as lawyers.
Mxsmanic
> Nonsense. Proof of a tort and a tort are two different things.
Not when it comes to actually obtaining damages or injunctions. A tort
that cannot be proved may as well not exist, assuming that there is a
presumption of innocence.
> Wrong. You can take all the pictures of the Eiffel Tower that you want.
> You cannot take pictures of someone elses picture of the Eiffel Tower
> without infringing the _picture's_ copyright.
But they may look exactly the same, so how do you tell which is which?
And what makes anyone's picture of the Eiffel Tower copyrightable if it
looks exactly like ten million other pictures of the Eiffel Tower?
> You don't seem to understand the concept of copyright at all.
I understand it very well. But I also note that some works are so banal
and universal in character that one cannot prove whether they have been
copied or not. I also recognize that some works are so lacking in
originality that they are not copyrightable to begin with. (Actually
these are two variations on the same notion.)
> However, if you copy _my_ photo of the Eiffel Tower,
> you have infringed the copyright in my photo.
How would you know whether I had copied your photo or just taken an
identical photo myself?
> "Positioned," as in "aimed the camera."
But in machines the camera is just pointed straight ahead.
And what about the lighting?
> It depends on what you mean by "use."
What uses would be prohibited?
Mxsmanic
> Typical statement of one who is ignorant of the law,
> as well as lawyers.
Typical personal attack of one who is at a loss to provide more cogent
argument. There are four such attacks in your post.
Apparently you don't like it when people disagree with you.
PTRAVEL
> PTRAVEL writes:
>
> > Nonsense. Proof of a tort and a tort are two different things.
>
> Not when it comes to actually obtaining damages or injunctions. A tort
> that cannot be proved may as well not exist, assuming that there is a
> presumption of innocence.
I've explained this to you already. Copying may be proven directly or
inferentially. Look back in this thread for an explanation of how it is
done.
>
> > Wrong. You can take all the pictures of the Eiffel Tower that you want.
> > You cannot take pictures of someone elses picture of the Eiffel Tower
> > without infringing the _picture's_ copyright.
>
> But they may look exactly the same, so how do you tell which is which?
See above.
> And what makes anyone's picture of the Eiffel Tower copyrightable if it
> looks exactly like ten million other pictures of the Eiffel Tower?
The question you should be asking is why anyone would attempt to enforce
their copyright for a picture of the Eiffel Tower that looks exactly like
ten million other pictures of the Eiffel Tower.
>
> > You don't seem to understand the concept of copyright at all.
>
> I understand it very well. But I also note that some works are so banal
> and universal in character that one cannot prove whether they have been
> copied or not.
And, with respect to such works, why would anyone attempt to enforce the
copyright which is, at its core, an economic right?
> I also recognize that some works are so lacking in
> originality that they are not copyrightable to begin with. (Actually
> these are two variations on the same notion.)
Not really. Original expression that exhibits even a modicom of creativity
constitutes a protectable work of authorship. There's no question that a
photograph of the Eiffel Tower satisfies this requirement. If, however,
that photograph looks like every touristy photograph, e.g. nothing special
about the composition, poorly exposed, badly focused, etc., though the
photograph is protected by copyright, why would anyone invest resources to
protect it?
>
> > However, if you copy _my_ photo of the Eiffel Tower,
> > you have infringed the copyright in my photo.
>
> How would you know whether I had copied your photo or just taken an
> identical photo myself?
As I've said, repeatedly, copying is proven directly or inferentially.
>
> > "Positioned," as in "aimed the camera."
>
> But in machines the camera is just pointed straight ahead.
And someone made that determination. As I said, it takes very, very little
"creativity" to result in protectable expression.
>
> And what about the lighting?
What about it?
>
> > It depends on what you mean by "use."
>
> What uses would be prohibited?
I don't know the context of your question.
PTRAVEL
> PTRAVEL writes:
>
> > Typical statement of one who is ignorant of the law,
> > as well as lawyers.
>
> Typical personal attack of one who is at a loss to provide more cogent
> argument. There are four such attacks in your post.
>
> Apparently you don't like it when people disagree with you.
Nothing to do with what I like or don't like. You made a number of
ridiculous statements and I called you on them.
Mxsmanic
> Nothing to do with what I like or don't like.
It has a great deal to do with it. You could offer the same objective
arguments (such as they are) without the personal attacks; the fact that
you do not implies that you consider those arguments too weak to
adequately support your position on their own, so you feel you must
attempt to discredit me as well.
> You made a number of ridiculous statements and I called you on them.
No need to provide an example in this post, but thanks anyway.
PTRAVEL
> PTRAVEL writes:
>
> > Nothing to do with what I like or don't like.
>
> It has a great deal to do with it. You could offer the same objective
> arguments (such as they are) without the personal attacks; the fact that
> you do not implies that you consider those arguments too weak to
> adequately support your position on their own, so you feel you must
> attempt to discredit me as well.
You might, then, take your own words to heart, and re-read your post which
prompted mine.
I have no intention of supporting my contention that this statement of
yours:
"Keeping in mind that attorneys will always advise the safest path, no
matter how unworkable or impractical it will be. And keeping in mind also
that almost any litigation in IP is a roll of the dice, which means that an
attorney is barely any more likely to be able to predict
outcomes than a stranger walking down the street (or posting to USENET)."
not only is a series of patently idiotic statements, but is offensive and
insulting and, moreover, was clearly intended as such since you know I'm a
lawyer.
If you believe what you wrote, then I'll stand by my statement that you know
nothing of the law or lawyers. However, I don't think you believe it -- I
think you were just being insulting.