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Author Topic: What are laws concerning original artwork based on real subjects?  (Read 528 times)

jeryst

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Hi. New to the forum and I have some questions regarding original art work base on real life objects.

I do a lot of photography and digital art  as hobbies.

Recently, I created an outer space scene totally from scratch. Then, I noticed one of my sons models of a Star Wars space ship.
So, I took a photograph of the toy, modified it a little, and photo-shopped it into the scene I had created.
It turned out pretty cool, so I started thinking about selling it, and that's when all of the questions started to pop up in my mind.

The space scene is totally original, and created by me.
The photograph was of an officially licensed toy that I purchased, so I have the right to keep the toy, destroy the toy, or modify the toy in any way I desire.
The resulting final image is original.

Here are some scenarios>
#1. Do I have the right to sell my final image, or would that be considered a derivative work? Would it be a derivative of the toy, or of the original Star wars franchise?
#2. Suppose I had drawn my own version of the toy ship instead of photographing it, would that make any difference?
#3. Suppose I created a road/track type scene, then added a photo of a muscle car I used to own. Is that the same or different?
#4. Suppose I took a photograph of a muscle car I used to own, and put it on a t-shirt. Is that the same or different?

I'm just trying to figure out what is allowed, and what is not allowed.
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Smokin

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your scenario is a difficult one to answer, the fact that it is an art project makes it more complicated.

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#1. Do I have the right to sell my final image, or would that be considered a derivative work? Would it be a derivative of the toy, or of the original Star wars franchise?

Maybe, but probably not. The toy is a derivative work of the movie/franchise. Using it , especially is it is easily identifiable, means that your work is relying on their intellectual property for financial gain.

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#2. Suppose I had drawn my own version of the toy ship instead of photographing it, would that make any difference?

Huge difference. Artists build their works on top of what other artists have dome before them. If your job was to draw a new original spaceship, you would need to research whats been already done to be worth a damn. A new original work can be and usually is created on the backs of previous artists and foundation of whats been done beforehand. But you cant change just a smidgen here and a smidgen there and call it original.

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#3. Suppose I created a road/track type scene, then added a photo of a muscle car I used to own. Is that the same or different?

Yes and no. There are fewer copyright and ip protections for utilitarian items like cars, clothing, or equipment. As long as you dont infringe on trademark laws (making it look like the company endorses your work by featuring logos trademarks, then including a car will be ok. A spaceship however is not utilitarian, its work of fiction and has greater protections with copyrights laws.

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#4. Suppose I took a photograph of a muscle car I used to own, and put it on a t-shirt. Is that the same or different?

possibly, probably. but it would more than likely infringe on trademark laws than copyright. it is possible to say create an artwork where you are commenting on the car like "this car is my compensation for....", then it starts being a form of expression less likely to be confused as being endorsed by or commisioned by said car maker.

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I'm just trying to figure out what is allowed, and what is not allowed.

arnt we all.... its complicated and ever changing, ip laws are becoming an area where more and more companies want more and more control over any and all possible forms and variations of ip regardless of fair use and common sense.
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Smokin

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The photograph was of an officially licensed toy that I purchased, so I have the right to keep the toy, destroy the toy, or modify the toy in any way I desire.

Not necessarily. You own the property, but not any right to copy the item , or more accurately put it, violate the copyright protections of the original. Also the assumption that something once purchased can be done with as they wish is not always true. Take for example a work of art, artworks are protected from willful acts of mutilation and destruction. If someone bought your space scene with your name proudly displayed on your work, and that someone put some ugly, obscene photo in the middle of it, you would have options under copyright law to have that stopped. Its a form of slander to mutilate a work and present it to the public. Trademarks can also be protected for similar reasons. This term is called trademark dilution.

https://www.law.cornell.edu/wex/dilution_trademark

http://mistercopyright.org/south-park-trademark-goodwill-and-the-washington-redskins
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