Original Artwork of Intellectual Properties

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Knightcrawler

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My jurisdiction is: California, United States

I've been trying to convince certain members of a video game community to behave well with regards to copyrighted works. However, some are still unconvinced for various reasons. So if someone here could help me, I'd be much obliged.

1) If an artist creates a completely original work, they gain immediate copyright over it, correct? I heard a story on NPR a month ago about how this was possibly going to be overturned, so I figure that's a law that exists right now.

2) Does this include digital art?

3) If an artist creates a new piece of artwork based on an existing intellectual property that doesn't belong to them, may they copy that piece of art and distribute it? AKA is distribution of "fan art" legal? If so, they cannot make any sort of profit on it - including donations - correct?

4) What defines "artwork" legally? Does it only cover paintings/drawings/ink (2D art), or does it cover sculptures/statues as well? Are 3D models considered artwork, as they are essentially digital sculptures/statues? Music?

5) If an existing piece of digital art is edited to the extent to which it no longer resembles/is no longer recognizable as the original copyrighted work or intellectual property, can it be copied and distributed? (I actually don't have any preconceptions about this one, and am asking out of curiosity.)

*Edit*

3b) An extension on question 3. Does the artist who creates an original piece of art on an intellectual property that s/he does not own gain copyright over their piece of art? I don't expect so, but it's worth asking.
 
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1) There is no way that law is going to be overturned and, if it is, not soon. It would undermine the entire system as it exists.

2) Yes, it includes all "works of authorship" whether using a pen, paper, or computer - not sand. You need to have it in a relatively permanent format so that the "work" is recorded, not temporary and then gone.

3) No - creating a new work based on an existing copyrighted work is called a "derivative work." The owner of the original work is the owner of the entire work when indivisible. If there was a painting and you created a glass overlay with art on it, it is arguable that you own your art on the glass that can be separated from the painting. But if you draw a moustache on a painting, you don't all of a sudden obtain a right in copyright to the whole painting - it wouldn't make sense. Much fan art is an infringement of copyright but companies make a decision not to pursue since doing so would (a) create bad PR, (b) can actually improve sales of their product through fan efforts, and (c) isn't worth the suit as damages are minute. If you want a good example of a company that will sue - the National Football League and all sports are all about money and licensing fees. At least from my experience, they won't hesitate to sue fans that create items which don't give them their cut of the pie.

4) Same thing as #2. As long as it is an original work in a "tangible medium of expression" that is relatively permanent, it's a new creation which can be copyrighted - whether it's stone, steel, digital and stored on your CD or paint on canvas... or words on a page.

5) Good question. Technically it's a derivative work since it *is* derived from the original copyrighted work. Arguably, if it's unrecognizable, nobody will know what was done if you file for copyright. ;)

3b) Already answered. Sorry... that's the way it goes but good try. ;)
 
Thank you.

I'm a bit surprised at #3. What's the difference between saying "Mario, the video game character"/describing what he looks like online and drawing him and posting the image? One is expression through words, and one is expression through sight. But they both get the same information across; in both cases, you're expressing the thought of Mario.

Just so we're clear, I'm not talking about taking an existing copyrighted image and editing it, I'm talking about drawing your own one from scratch. I'm talkin' you drawing three circles on a piece of paper, putting in the eyes, mouth, and nose and calling it Mickey Mouse. If we're going with the painting analogy, what I'm thinking of would be someone sitting in a museum and looking at the art, and painting a new scene with new poses/perspectives/lighting that includes the same characters. Then scanning their own painting and putting it on MySpace or something. If that is illegal, is painting it illegal, or just sharing it with other people?

If someone takes a picture of you drawing Mickey Mouse, is that illegal? Or if your daughter draws Blue from Blue's Clues in crayon and you make a copy to show your friends at work? Or a video on YouTube of someone playing a TV show's theme song on their guitar?

Sorry if I'm being a bit difficult, I'm just a little surprised and want to make sure that we're talking about the same thing.
 
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You're talking about a completely different issue and much of what you are saying can be debatable but will never go to court or might be fair use. Let's talk about describing Mario - that's fine. But if you draw what appears to be an exact copy of Mario, you're not creating an original work of authorship. This is because you only drew a picture that looks the way it does because you had used the image of Mario to draw that picture. It's not "original" - it's just an artist's copy of an image. Think of it as a less than absolutely perfect photocopy but it's close enough. If you created an image that happened to look like Mario and lived in Tibet, never having used a phone or communications device, then according to copyright law, you have also created an original work of authorship. However, (1) the second comer would probably need to prove inaccessibility because Mario is so well known and almost everyone has had access to see the character, and (2) the issue might revolve more around trademark than copyright. Regarding sitting in a museum and drawing the character for your personal use or a class, remember that in this instance the fair use exception would apply. However, if you were in a museum and copied a copyrighted image and then printed 10,000 t-shirts, you can understand a potential problem. Makes sense?
 
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