pugdog
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Feb 6, 2005, 11:02 AM
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Copyright Myths -- vs Patent, Trademarks, etc.
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I posted this on the Rings & Things forum a day or two ago. I search regularly for issues relating to art and copyright, and visual copyrights. I thought I'd repost it here, since it's an always important issue.
People confuse copyright with trademark and patent laws. Copyright gives you certain protections, but to really protect your "image" or works, you need to have a trademark or patent, and that is often impossible to get. So, what you must do is cultivate a style that people associate with you, and which you can perhaps consider a "Trademark" -- either filed or not. But that locks you into a certain style, and does not foster creativity. Copyright law is designed to protect your works, but also to encourage others to also create things, and protect their works.
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This is a thorny issue, and there is a lot of misconception about it. It's one I'm also very interested in in all aspects of visual art, since such issues are *not* cut and dry as they are with reproduction of the printed or spoken word, or printed image. I've been involved with visual copyright on the Interent since about 1983. I have 1000's of copyrights, and hundreds of thousands of creative copyrights (things I've made, but not actually filed paperwork for) as well as a few REGISTERED trademarks (PUGDOG being one in two IC categories).
>> the U.S. Copyright Office says: "What is not protected by copyright:
>> Ideas, procedures, methods, systems, processes, concepts, principles,
>> discoveries, or devices, as distinguished from a description, explanation, or illustration."
Don't confuse the "Illustration" to be the actual work of art. In that context, it means a "graphic" or visual depiction.
Most of what people want to claim is covered by the copyright law is really covered (or might be if it was unique enough or original enough) under Trademark or Patent law.
Copyright is both the weakest form of protection, and the strongest *if* you can prove it.
If you do a design from a book, and it's truly indistinguishable from the design as illustrated in the book, there might be some issues there. MIGHT. If you did not actually copy the DESIGN ITSELF, but created one from the instructions, than there really is no copyright violation.
Instructions are meant to be followed, and once published, you lose your claim to the rights under them, unless you were able to get a PATENT on the process or final result of the process. You get the rights to the EXACT words as written, even the format/layout in which they were published, but NOT to the results of following them. Think about cookies made from a recipie.
Since no hand made design is EXACT in any way to any other, your physical interpretation of the instructions that were printed, are covered by your own creative license.
Many of the claims in the books, or at the beginning of the books are blanket disclaimers, that when (or if) analyzed carefully, show they claim the publication and pieces of it as a registered work, but really not the designs derived from it -- which could be indefensible in a court of law. No one can lay claim to a beaded starfish. So, working a starfish from a design that was printed, might be unethical if claimed to be an original idea or concept, but it's *not* illegal. And, I don't think anyone would argue that ethics and law have anything to do with each other in our present legal system. (Justice? ??? yeah, right.)
In that case, a simple statement "A variation of a design originated (or proposed) by So and So in Such and Such" is all you'd need to say or do to gain a clear conscience.
But the main issue is, you can't reprint the book or magazine, or make copies of it to bypass the author's right to make money on it, but anything you make from it can be sold, and reworked, and used as you see fit -- commercially or not. They are your works based on the copyrighted description. Unless the original "idea" or "concept" was patentable, or the image you are imitating was a Trademark (like Disney characters, the classic example) your reproduction of the item is not protected.
This falls under Civil law, and the rules are far different than criminal. Each court, each jurisdiction , and even each case may have features or aspects that require or elicit different decisions.
This is greyed somewhat, if the instructions you are following are not "sold" to you, but "licensed". If you buy a license to make one copy, then you are, in effect, entering a contract of sorts that might be interpreted differently. You don't license magazines or books. You buy and OWN them. You don't license their content, you OWN that physical copy of it.
The skinny is, in most cases it's ok to try to claim blanket or broad sweeping rights (as long as you don't actually make illegal claims as to your actual rights), and conversely, it's ok to take what you've seen in a magazine or how-to, and make it. (How many people make things they've seen a celebrity wearing -- and don't think twice about the copyright issues???) The only time there will be a problem, is if the person who thinks they own it, decides to spend the money to see if they really do own it, and attempts to take legal action against you. Cease and desist letters mean nothing -- unless the person who sent it is actually going to take you to court -- and that will only happen if there is real money involved, they have real rights that are being abused (eg: Trademarks or Patents) or if they can prove you really did violate their copyright by making illegal copies of the patterns or book.
You may not like it -- you may feel violated to see "your design" in other areas, but that is life. It's not illegal. Each time the design is reworked, it's an original. The "likeness" is much harder to prove for copyright -- you can prove it for Trademark (eg: that looks like Bugs Bunny or Mickey Mouse).
And, let me give you this final remark. What if your "original" idea was worn by a celebrity, or published in a book, and someone else said "I MADE THAT LAST YEAR!" ?? Who "owns" that idea? I don't want to argue this point, only point out that in a finite/closed system, duplication is inevitable. Which is why getting a patent takes so long and is so expensive -- and you have to prove no "prior art". How can anything strung or woven really claim that?
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PUGDOG's Rock & Bead Shop
Pittsburgh, PA 15217
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