# Copyrights with a derivitave work



## gijoe985 (Sep 15, 2009)

Hello,

I am curious about copyrights and derivative works. I read the file here-[media]http://www.copyright.gov/circs/circ14.pdf[/media]

I have a few graphics where I have taken a logo and altered it to give a different message. While it is still very similar to the original logo (easily mistaken as original sometimes) the artwork was done either from scratch or the original logo was altered to the point that not ever 25% of the original artwork was kept. Would this count as a derivative work? I was always under the assumption that once you change a certain amount of the work that you would not be subject to infringement, but I want to start researching more about this. 

Thanks.


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## gearbranders (Oct 16, 2009)

gijoe985 said:


> ...it is still very similar to the original logo (easily mistaken as original sometimes)...


This statement tells me you've created a derivative work.

If you're dealing with logos, you could also be dealing with trademarks. As for derivative works in copyright, there is no magic percentage number of change to a copyrighted work that allows you to copy it without a license from the owner of the copyright. Besides, even if there were a magic percentage number, how do you measure an image to determine how much it has been changed? If not more than 25% of the original was kept, how could your work be mistaken as the original?

I would argue the only way you could safely use a copyrighted work in your own work without a license agreement would be to alter the original so greatly that no one can identify the original work in the new work. You would have to change it so much that you couldn't even recognize the original work at all, and then what's the point? I'm assuming you want your derivative work to still be associated with the original work. You would need to get a license from the copyright owner to legally produce the derivative work. 

I am not a lawyer, so consult your attorney to verify everything I've said.


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## kimura-mma (Jul 26, 2008)

gijoe985 said:


> http://www.copyright.gov/circs/circ14.pdfI have a few graphics where I have taken a logo and altered it to give a different message.


I would *highly* suggest contacting an intellectual property attorney before proceeding. There is just so much gray area in these situations. Any time you are creating artwork that you know is not 100% original, it is impossible to predict the level of risk involved without the help of a trained professional.



gijoe985 said:


> While it is still very similar to the original logo (easily mistaken as original sometimes) the artwork was done either from scratch or the original logo was altered to the point that not ever 25% of the original artwork was kept. Would this count as a derivative work?


What you are doing is definitely a derivative, but whether it falls outside the line of infringement is going to be up to the owner of the original artwork and a judge. The problem with attaching a %, is that it is very subjective. You may say only 25% of the original was kept. But the original artist may say 75% was kept. And a judge may say 50% was kept. But what is the line the determines infringement or derivative? Even if you are in the right, you could still be sued and will have to pay to defend yourself.



gijoe985 said:


> I was always under the assumption that once you change a certain amount of the work that you would not be subject to infringement, but I want to start researching more about this.


Yes, you need to change it a certain amount. But determining that amount is not an exact science. The only research you should do is finding a local attorney and get their advice. Because your questions are not t-shirt questions, they are legal questions.


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## kimura-mma (Jul 26, 2008)

gearbranders said:


> If you're dealing with logos, you could also be dealing with trademarks.


Great point, Stephen!

Derivative works are based on copyright. Derivatives of trademarked logos is a whole different ballgame. It will be much more difficult to avoid infringement if you are altering federally registered logos.


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## gijoe985 (Sep 15, 2009)

Here are some examples-

Got Milk? Many have made Got Shrimp? Got Jesus? Got whatever... I am assuming there was not copyright problems there?

Ah ha! I found a perfect site! 

Parody T-Shirts For Everyone: Home: Zazzle.com Store

It is someone's zazzle site. I will say that NONE of my work is any more copoed than these. While in fact these are by in large much more the same. And if I was not clear earlier, my deigns were indeed parodies and that is why they are so similar but changed... I'm not actually trying to get people to think they are buying someone else's stuff...


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## PositiveDave (Dec 1, 2008)

There isn't a definitive answer I'm afraid.
You can't produce an ebay listing as a defence in court 
Parody tends to be accepted better than direct copy because you aren't trying to fool a buyer, but that's a different law.


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## kimura-mma (Jul 26, 2008)

gijoe985 said:


> Here are some examples-
> 
> Got Milk? Many have made Got Shrimp? Got Jesus? Got whatever... I am assuming there was not copyright problems there?


It's never a good idea to assume anything. Maybe people got sued, maybe they got away with it, maybe they paid a license fee. Who knows... It's still best to have an attorney on your side that understands what products you are selling and where and how you are marketing them.



gijoe985 said:


> Ah ha! I found a perfect site!
> 
> Parody T-Shirts For Everyone: Home: Zazzle.com Store
> 
> It is someone's zazzle site. I will say that NONE of my work is any more copoed than these. While in fact these are by in large much more the same. And if I was not clear earlier, my deigns were indeed parodies and that is why they are so similar but changed...


There are many of these sites out there. And while your concept may be similar, you can't use their existence as a reason why you are not doing anything illegal. The Parody or Fair Use doctrine is a slippery slope. You can use it as a defense, not a license to do what you want. Meaning, you can still be sued, but you will have to defend yourself in court using the parody defense.



gijoe985 said:


> I'm not actually trying to get people to think they are buying someone else's stuff...


But that's not really up to you. If a company wants to claim that you are creating confusion, then they can sue.

There's really no other way around it other than getting advice from an attorney.


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## gearbranders (Oct 16, 2009)

kimura-mma said:


> But what is the line the determines infringement or derivative?


Derivative works and copyright infringement are not mutually exclusive concepts. What ultimately determines whether a derivative work is infringement is whether the owner of the copyright in the original work has licensed the creation of the derivative work. 

The copyright owner of an original work has the _exclusive right_ to make derivative works. The only way someone else can make a derivative work is to get permission from the copyright holder. 

Read the definition of derivative work as defined in section 101 of The Copyright Act of 1976 and determine whether your work falls under this definition:

"A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work"." 

If your work falls under this definition, then you need permission before you can create it. There are some limitations on the exclusive rights of a copyright holder (i.e. fair use, reproduction by libraries, etc), so you need to consult an attorney to see if any of those limitations apply in your situation.


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## wormil (Jan 7, 2008)

First read up on the differences between trademark and copyright.


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## gijoe985 (Sep 15, 2009)

Well after digging deeper, my work would be a parody, not a derivative. And from looking at the court cases, I believe that they would be ok.


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## kimura-mma (Jul 26, 2008)

As mentioned earlier, parody is not a way to avoid a lawsuit. It's just the defense you would use in court. But if you understand the risks and are comfortable with it, then you are good to go.


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## wormil (Jan 7, 2008)

Court cases involving copyright or trademark? Because you have repeatedly referred to copyright.

http://www.usip.com/pdf/Article_Trademarks/parodytm.pdf

Trademark Parody - Florida Intellectual Property Law Firm - Lott & Friedland


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## gijoe985 (Sep 15, 2009)

wormil said:


> Court cases involving copyright or trademark? Because you have repeatedly referred to copyright.
> 
> [media]http://www.usip.com/pdf/Article_Trademarks/parodytm.pdf[/media]
> 
> Trademark Parody - Florida Intellectual Property Law Firm - Lott & Friedland



I like the second one. Again, I think it hit the nail on the head. My works look enough like the original so that an obvious connection is made, but it is an obvious parody and is clever and somewhat humorous. And though it si not a defense, I see many people and even companies doing similar parodies frequently. I saw a "Got Jesus" shirt at Fred Meyer (Kroger) the other day. And I doubt anybody went as asked the dairy farmers if they approved.


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## gijoe985 (Sep 15, 2009)

I just wanted to hop back int his to add some information that I have found since this post was made. (I was looking through my old posts)

I don't have a link, but there was a Hard Rock Cafe vs ???? case that determined that the parody defense could not be used if the derivative work was not indeed a parody, but was solely for the purpose of capitalizing on the prior works fame. 

I.e. if I am making fun of something, like taking the T-Shirt Forum logo and making a joke calling it the T-Shirt Harem, it would be a parody. Or any other joke or whatnot that is directed at the original. BUT, my old example of the Got Jesus copying Got Milk is really just trying to capitalize on the fame of the Got Milk logo. Therefor the Got Jesus people can't really use the parody defense. Though again, this does not mean that they will actually sue...


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## kimura-mma (Jul 26, 2008)

gijoe985 said:


> I don't have a link, but there was a Hard Rock Cafe vs ???? case that determined that the parody defense could not be used if the derivative work was not indeed a parody, but was solely for the purpose of capitalizing on the prior works fame.


Correct. There needs to be a legal basis for the derivative work to be considered a parody.

Just because the creator thinks it's a parody is not enough. And just because the IP owner thinks it's infringement is not enough. Both sides need to bring justification to their arguments.

The difference is, it's a lot easier for an existing IP owner to prove the strength of their mark because it's already in the marketplace. The parody creator needs to prove a lot of subjective elements are in their work in order to win the case.

Like I said earlier, the parody defense can be a slippery slope.



gijoe985 said:


> I.e. if I am making fun of something, like taking the T-Shirt Forum logo and making a joke calling it the T-Shirt Harem, it would be a parody. Or any other joke or whatnot that is directed at the original. BUT, my old example of the Got Jesus copying Got Milk is really just trying to capitalize on the fame of the Got Milk logo. Therefor the Got Jesus people can't really use the parody defense. Though again, this does not mean that they will actually sue...


So is there any legal basis for your claim that "T-Shirt Harem" is a parody but "Got Jesus?" is not? Or is this just your opinion based on one of them being a better joke?

It seems like you are trying to define an exact line between parody and infringement so we can all know the end result in advance. But it just doesn't work that way. There is more to it than "making fun of something" or "making a joke." It's not just the comedic effect that solely determines parody. There are several other variables involved.

Any time someone toes the line of infringement, there is risk to be sued. In court, the defendant can use the parody defense and the plaintiff will claim it's infringement. And it will be up to a judge to decide. And the judge's decision will always be based on the specific details of a case. There's no way to predict the outcome in advance. If we could, there would be no need for legal action in the first place.


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## gijoe985 (Sep 15, 2009)

kimura-mma said:


> So is there any legal basis for your claim that "T-Shirt Harem" is a parody but "Got Jesus?" is not? Or is this just your opinion based on one of them being a better joke?
> 
> It seems like you are trying to define an exact line between parody and infringement so we can all know the end result in advance. But it just doesn't work that way. There is more to it than "making fun of something" or "making a joke." It's not just the comedic effect that solely determines parody. There are several other variables involved.
> 
> Any time someone toes the line of infringement, there is risk to be sued. In court, the defendant can use the parody defense and the plaintiff will claim it's infringement. And it will be up to a judge to decide. And the judge's decision will always be based on the specific details of a case. There's no way to predict the outcome in advance. If we could, there would be no need for legal action in the first place.


Honestly, that was just something I thought up on the fly for an example. I used it because it would be poking fun at the forum, not because I think it is the perfect example. I'm not trying to split hairs over this, just trying to give examples that parodies poke direct fun toward the original vs. non parodies may be funny, but have no real connection to the original other than the desire to capitalize on their fame.


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## smclean06 (Jul 7, 2010)

I am not an intellectual property attorney, however my mom is and I can tell you with 100% certainty there is no "magical percent" you can change or not change that makes it legal.

If it's confusingly similar to the general public, it's illegal. Whether you change 1% or 99%

If you want to do anything that didn't come 100% from your own mind, consult an attorney.


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