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Artist => General Art Discussions => Topic started by: trebor on March 14, 2013, 09:06:08 AM
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I broached this subject yesterday in the shoutbox and was surprised that no response came. It may have had to do with the time of day as it was later in the day.
When discussing art and ownership many think it is a simple subject. I do not. I believe it is very complicated.
So here is a hypothetical question....if someone draws a sketch on a piece of paper and says this is what I want, who owns it then?
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Touchy question...depending on your point of view and how you charge for artwork.
In my opinion, if you charge for artwork....or include it in your all inclusive printing charges....you have been paid to do the artwork...you have been compensated.
If someone bought it (paid for it), they should own it.......they also bought the shirts and paid for the printing didn't they?
That being said....that does not mean you are under obligation to supply or distribute the design for free. Generally the customer already has a copy, via jpeg for approval...so it could be said you have already supplied that.
If they want the file in different vector formats, charge for that service.
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This is always a great subject to talk about because it always impacts us all one way or another and most know so very little about it.
First, the facts. You can find all of the "real" support data here.
US Government Copyrights website.
http://www.copyright.gov/ (http://www.copyright.gov/)
United States Patent and Trademark Office
http://www.uspto.gov/ (http://www.uspto.gov/)
Comments:
The person that sketched/doodled, penciled,inked the idea on a piece of paper owns just that, the sketched/doodled, penciled,inked piece of paper.
As Fog says, "don't shoot the messenger". I'm only telling you what the rules are. What you really do and believe is up to you to do as you see fit.
The person (creator) of the sketched/doodled, penciled,inked paper owns that paper. Hold on now, cuz here is where it gets confusing. He/she owns that paper. Not the finished art (unless they themselves create that finished art. Copyright laws say the "the creator of the art" owns that art. I always use Disney as an example, only because people feel if you can hold Disney to the wall, it's concrete info.
Lets say that I have a meeting with Disney and at that meeting, The Disney rep sketches out a tee shirt idea. They own that...but it's not worth much (as it's not the final product) but they do own THAT sketch...but the person/company that takes the idea to final usable art owns it. If I sketched out the idea (at that meeting on a napkin, (I won that sketch). The Physical napkin sketch only. Same for Disney. They only own that napkin.
Once I go back to my art room and take the idea to final, I now own THAT part. I own The final art, since I am the creator of that final art.
Here is where it gets tricky. I can't do anything with it...other than get compensated by Disney...since THEY own the copyrights for that character and anything to do with Disney. I can't sell it (as is) to other theme parks (as it's Disney's characters and info. (This happens all the time with Disney), Artist draw up art...and Disney can't own it unless they purchase (in writing) explaining that I am giving up all ownership (usage rights) known as FULL AND COMPLETE rights of it from me...but they CAN prevent YOU from profiting on it if they don't need it.
So, your customer doodles out an idea on paper. He gives that to you...and you create usable final art. (you own that). It don't matter if they paid X amount of money for you to complete it to final. For that service (technically), they are paying you a labor service fee. Not an art ownership fee.
Now, you can say who gives a rats patootie about art ownership... you want to print tee shirt so you can hand over the art to them for the $40.00 you may have charged. That, as far as business goes for art, is not a good choice...but happens every day. EVERY DAY. So much so, that most think THIS is the norm and as such must be the way to go. Most who don't concern themselves with the details of art creation rights, like people who simply use art as a tool to the end product don't see much value in it. Those who make a living (on art) and creating art) know the impact it can have on them. It's lost revenue to hand it over for $40.00
As a screen print shop. either you or your (full time, government recognized) artist employee can create art...and YOU, the business owns full and complete rights, since that artist is a (full time, government recognized) employee of your Co.
The only time a creator loses the usage rights is IF he/she sells (on paper in writing< and lays out the details of what they are selling.
What you charge for art and how much you give away is completely up to you, but "technically", just because someone pays you a fee for art services in your shop does not mean they now own rights to it. Artist and Agencies use art on other products and for other tee shirt orders all the time (because they own it) and can do so. Screen printers do this all the time also. You know, the order you did a few years ago on a tee shirt and a new customer come sin and wants a Flag on his shirt...and you put a design together using that old art of a flag. You can do that. The only time you can't (is when your customer paid "specifically" for full and complete rights of ownership for THAT old flag art. When they require to go this far, (on paper) it's because the art is so unique that they want it for themselves and to represent a part of them and they are familiar with the art ownership laws.
If for any time, you simply charged an art charge and did not spell out (art ownership rights being sold for full and complete rights) as most all shops do not...or you did not define the limitations of the use of that art on paper....then technically, you still own all of the art that ever left your shop...that YOU or your (full time, government recognized) artist/employee created.
Thats what makes art WORTH something. The fact that you can make residual income later down the road. IT can have a long life of being re-used and builds up an artist stash of stock art to make designs faster.
People often use this idea, "If they paid for it" then it's theirs".
To put it is simple terms, technically, If I paid for a Hammer that has some unique features (as seen on the home network channel) for instance, and I paid for it at the hardware store or off that network channel, Do I really own the rights to use that hammer design? no, of course not. When someone you see on "The shark tank" develops a great idea and I purchase that item (insert tee shirt), Do I own the item to put it on other products? no.
Now, you can give your ideas and art ownership away all you want for $40.00 or $100.00 er whatever, but when doing so, ...if you "really" want to give up ownership of that, then put it in writing so that the customer "Really does" owns full rights. It's a legal process.
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great question!
I think art falls under intellectual property rather than physical object. From what I understand, person creating the art is the owner. So in your case, if the customer drew something and actually created the art they own it. One could differentiate here between a sketch that needs to be colored or cleaned up (your customer owns it) and a diagram with some notes on what they want done (you own the copyright).
In other words, if they gave you art, they own it. If they gave you instructions on what they want and you create it, you own it.
DISCLAIMER: this is just my interpretation of the situation based strictly on a gut reaction!
pierre
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My next question then becomes.....If I am a bus boy in a restuarant and I pick up a napkin with some words on it. I like the words so I write music and turn it into a song. BTW, the two men at the table I bussed was Don Henley and Glenn Fry. Who owns the song?
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Is this an issue because we don't want the customer taking the art to another printer after we have done all the artwork?
If so, then like I said previously....charge for the service of supplying the art in different formats.
Other than the competition issue.....is it not the same as commissioning a painter to do a portrait?....they are paid and then you own the painting they supplied to you...like the completed/finished shirts......the painter can not then claim ownership of the painting they completed......the artist has been compensated for his labor (creation).
I never have art ownership come up as an issue.....just playing devils advocate or trying to work through the issue.
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Here is another.....Mr Knight, the CEO of Nike has a brilliant idea. I am going to create a brand of shoe. I want the logo to look like this, and he sketches the "swoosh" on paper. A freelance artist then gives him a finished and clean swoosh. Who owns the "Swoosh"?
I realize Mr. Knight at Nike is very smart and would have his paperwork in line. But let's say he did not for the sake of argument.
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Is this an issue because we don't want the customer taking the art to another printer after we have done all the artwork?
If so, then like I said previously....charge for the service of supplying the art in different formats.
Other than the competition issue.....is it not the same as commissioning a painter to do a portrait?....they are paid and then you own the painting they supplied to you...like the completed/finished shirts......the painter can not then claim ownership of the painting they completed......the artist has been compensated for his labor (creation).
I never have art ownership come up as an issue.....just playing devils advocate or trying to work through the issue.
@Dave.....this is all only hypothetical. I am merely trying to make people understand it is a very complicated issue and not as simple and clearcut as one might think. For a long time, I felt a certain way about this and have over time adjusted my thinking.
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This is always a great subject to talk about because it always impacts us all one way or another and most know so very little about it.
First, the facts. You can find all of the "real" support data here.
US Government Copyrights website.
[url]http://www.copyright.gov/[/url] ([url]http://www.copyright.gov/[/url])
United States Patent and Trademark Office
[url]http://www.uspto.gov/[/url] ([url]http://www.uspto.gov/[/url])
Comments:
The person that sketched/doodled, penciled,inked the idea on a piece of paper owns just that, the sketched/doodled, penciled,inked piece of paper.
As Fog says, "don't shoot the messenger". I'm only telling you what the rules are. What you really do and believe is up to you to do as you see fit.
The person (creator) of the sketched/doodled, penciled,inked paper owns that paper. Hold on now, cuz here is where it gets confusing. He/she owns that paper. Not the finished art (unless they themselves create that finished art. Copyright laws say the "the creator of the art" owns that art. I always use Disney as an example, only because people feel if you can hold Disney to the wall, it's concrete info.
Lets say that I have a meeting with Disney and at that meeting, The Disney rep sketches out tee shirt idea. They own that...but it's not worth much (as it's not the final product) but they do own THAT sketch...but the person/company that takes the idea to final usable art owns it.
got to get back. busy.
How could they own the art? They don't even own the concept.
In the example of the busboy, he would not own the lyrics of his song just because he took them to a finished product, would he?
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Here is another.....Mr Knight, the CEO of Nike has a brilliant idea. I am going to create a brand of shoe. I want the logo to look like this, and he sketches the "swoosh" on paper. A freelance artist then gives him a finished and clean swoosh. Who owns the "Swoosh"?
I realize Mr. Knight at Nike is very smart and would have his paperwork in line. But let's say he did not for the sake of argument.
copy and paste from Wikipedia:
The Nike "Swoosh'" is a corporate trademark created in 1971 by Carolyn Davidson, while she was a graphic design student at Portland State University. She met Phil Knight while he was teaching accounting classes and she started doing some freelance work for his company, Blue Ribbon Sports (BRS).
For seven years after its founding in 1964, BRS imported Onitsuka Tiger brand running shoes. In 1971, BRS decided to launch its own brand, which would first appear on a soccer cleat called the Nike, manufactured in Mexico. Knight approached Davidson for design ideas for this new brand, and she agreed to provide them. Over the ensuing weeks, she created at least a half-dozen marks and gathered them together to present to Knight, Bob Woodell and Jeff Johnson (two BRS executives) at the company's home office, at the time located in Tigard, Oregon.
They ultimately selected the mark now known globally as the Swoosh. "I don't love it," Knight told her, "but I think it will grow on me." Davidson submitted a bill for US$35 for her work.[3] In September 1983, Knight gave Davidson a golden Swoosh ring with an embedded diamond, and an envelope filled with an undisclosed amount of Nike stock to express his gratitude.[4]
In June 1972, the first running shoes bearing the Swoosh were introduced at the U.S. Track and Field Olympic Trials in Eugene, Oregon. Until 1995, the official corporate logo for Nike featured the name Nike in Futura Bold, all-cap font, cradled within the Swoosh. In 1995, Nike began using the stand-alone Swoosh as its corporate logo, and continues to use it that way today.
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I think it is important to distinguish "art" from film or disk for emb. Also it can make a difference if there were charges for services. No answers just opinions. I've seen it handled differently everywhere. Some companies have disclaimers on ownerships on the written orders
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Some people "include" art which I find is where a lot of shops that "include" art actually do that so they can basically hold the customer hostage and not give them the art that they "include". (not all shops, not even saying any of you do it, just saying I see it daily).
IMO you can't claim to include it and then still withhold it, seems wrong. Unless its disclosed as such.
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My next question then becomes.....If I am a bus boy in a restuarant and I pick up a napkin with some words on it. I like the words so I write music and turn it into a song. BTW, the two men at the table I bussed was Don Henley and Glenn Fry. Who owns the song?
You, (the buss boy) owns THAT song you created....but you can't do anything with it unless you compensate the person who laid it out on the napkin. You are both owners so to speak and both should reap the benefits. Google the Disney Sports complex law suit. Started just like this. Disney ran with it...and the guy who drew up the napkin sketched idea at the dinner table kept that napkin. Disney later developed the Sports complex...and the guy began his law suit...and past away before seeing ti to fruition. His family then continued the law suit and won about 7 years back....sort of won....non declassed agreement. They got something and I' sure it was huge. I don't think that Disney "technically lost, but they did pay. Something that huge, they don't give up without a major fight...so you can assume that their is strength to someone sketching out an idea on paper that needs compensated for it in some manor.
In the case of a tee shirt idea (as it pertains to us), the compensation comes from an exchange of services for the end product.
I always say, ...you charge for making screens and they don't take home the screen right? Unless you spell that out in your order form that they can take home the screen they paid for. Still, even at that, you don't get to own (the screens design) and manufacturer your own screens exactly like that. Think Newman.
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Here is another.....Mr Knight, the CEO of Nike has a brilliant idea. I am going to create a brand of shoe. I want the logo to look like this, and he sketches the "swoosh" on paper. A freelance artist then gives him a finished and clean swoosh. Who owns the "Swoosh"?
I realize Mr. Knight at Nike is very smart and would have his paperwork in line. But let's say he did not for the sake of argument.
copy and paste from Wikipedia:
The Nike "Swoosh'" is a corporate trademark created in 1971 by Carolyn Davidson, while she was a graphic design student at Portland State University. She met Phil Knight while he was teaching accounting classes and she started doing some freelance work for his company, Blue Ribbon Sports (BRS).
For seven years after its founding in 1964, BRS imported Onitsuka Tiger brand running shoes. In 1971, BRS decided to launch its own brand, which would first appear on a soccer cleat called the Nike, manufactured in Mexico. Knight approached Davidson for design ideas for this new brand, and she agreed to provide them. Over the ensuing weeks, she created at least a half-dozen marks and gathered them together to present to Knight, Bob Woodell and Jeff Johnson (two BRS executives) at the company's home office, at the time located in Tigard, Oregon.
They ultimately selected the mark now known globally as the Swoosh. "I don't love it," Knight told her, "but I think it will grow on me." Davidson submitted a bill for US$35 for her work.[3] In September 1983, Knight gave Davidson a golden Swoosh ring with an embedded diamond, and an envelope filled with an undisclosed amount of Nike stock to express his gratitude.[4]
In June 1972, the first running shoes bearing the Swoosh were introduced at the U.S. Track and Field Olympic Trials in Eugene, Oregon. Until 1995, the official corporate logo for Nike featured the name Nike in Futura Bold, all-cap font, cradled within the Swoosh. In 1995, Nike began using the stand-alone Swoosh as its corporate logo, and continues to use it that way today.
So in the case of the real Nike story, Ms Davidson was both the creator (idea) and the artist. But what if she wasn't? Who would own it? Phillip Knight was more than genorous when he added financila compensation to Ms. Davidson's portfolio.
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First of all, I'm amazed that no one has mentioned the phrase "work for hire".
If someone just pays for art, it doesn't mean much. If they pay for art and in some sort of writing get a receipt implying they were buying all rights to the art, it will be up to the court who owns it.
I find this to be a rather interesting subject, considering how many hundreds or thousands of designers and illustrators have created art that companies *think* is theirs, but likely isn't...
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Some people "include" art which I find is where a lot of shops that "include" art actually do that so they can basically hold the customer hostage and not give them the art that they "include". (not all shops, not even saying any of you do it, just saying I see it daily).
IMO you can't claim to include it and then still withhold it, seems wrong. Unless its disclosed as such.
I include it 90% of the time....because it is simple stuff....like Joe's Roofing etc.......but that is not to hold them hostage....for me anyway....it is simplifying the pricing/invoicing......and I do not withhold the artwork....but I do charge if they ask for the design in certain formats. But usually they just ask that I send a copy to their sign guy cause they want vinyl done on the truck.
In 8 years I have never had a request for the art...other than what I just stated
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Other than the competition issue.....is it not the same as commissioning a painter to do a portrait?....they are paid and then you own the painting they supplied to you...like the completed/finished shirts......the painter can not then claim ownership of the painting they completed......the artist has been compensated for his labor (creation).
Good question. No. Simple answer. It's all in the details.
When you buy a painting, (if that artist knows anything about art sales/ownership/usage rights) they can choose to sell you the (original) at a higher price...and you OWN that original. Technically, that does NOT give you art reproduction rights. It give you the right to own THE ORIGINAL and let it sit on your wall and tell people you own the original. If you want to them re-produce that, you would need to pay for additional fees for reproduction rights. This is separate.
When you buy a painting from someone who sells paintings (who is aware of the right) and treats it like a business, you will see these definitions and explanations when you go to sign the contract. It will be told to you, what you are able to purchase. If you want to own the reproduction rights and original of a Thomas Kinkade painting, you will pay about 1million. If you want to purchase an original Thomas Kinkade but no reproduction rights, you may only pay 100k.
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Here is another.....Mr Knight, the CEO of Nike has a brilliant idea. I am going to create a brand of shoe. I want the logo to look like this, and he sketches the "swoosh" on paper. A freelance artist then gives him a finished and clean swoosh. Who owns the "Swoosh"?
I realize Mr. Knight at Nike is very smart and would have his paperwork in line. But let's say he did not for the sake of argument.
THere is actually a story about this. A real story about the logo and a freelancer who crated it...and Nike paid for it...about $75.00 Later over the years, Nike realized how the artist was inappropriately compensated, came back to that same artist and paid her (an undisclosed amount) willingly. I respect them for that. I'm sure all legal matters were then tidied up is any.
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My next question then becomes.....If I am a bus boy in a restuarant and I pick up a napkin with some words on it. I like the words so I write music and turn it into a song. BTW, the two men at the table I bussed was Don Henley and Glenn Fry. Who owns the song?
You, (the buss boy) owns THAT song you created....but you can't do anything with it unless you compensate the person who laid it out on the napkin. You are both owners so to speak and both should reap the benefits. Google the Disney Sports complex law suit. Started just like this. Disney ran with it...and the guy who drew up the napkin sketched idea at the dinner table kept that napkin. Disney later developed the Sports complex...and the guy began his law suit...and past away before seeing ti to fruition. His family then continued the law suit and won about 7 years back....sort of won....non declassed agreement. They got something and I' sure it was huge. I don't think that Disney "technically lost, but they did pay. Something that huge, they don't give up without a major fight...so you can assume that their is strength to someone sketching out an idea on paper that needs compensated for it in some manor.
In the case of a tee shirt idea (as it pertains to us), the compensation comes from an exchange of services for the end product.
I always say, ...you charge for making screens and they don't take home the screen right? Unless you spell that out in your order form that they can take home the screen they paid for. Still, even at that, you don't get to own (the screens design) and manufacturer your own screens exactly like that. Think Newman.
I agree with this for the most part. That is exactly where I was going with this thread......it took a while but I finally got you to the water hole.
The example of the table napkin I gave has some truth. Former President Ronald Reagan's step daughter, I believe her name was Patsey Davis????, actually sat in a room with the Eagles while they were writing the song "Witchy Woman". She later claimed to own some portion of that work and won a decision saying she was......my understanding is that she continues to receive some type of compensation to this day....
So now we take it to the Nike thing. Did Phillip Knight realize that while using the swoosh, that Ms. Davidson may have been compensated for art work rendered, but that he did NOT have a release of the concept and was the gift later on accompanied by release of the concept as well as the art. Just a theory.
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My next question then becomes.....If I am a bus boy in a restuarant and I pick up a napkin with some words on it. I like the words so I write music and turn it into a song. BTW, the two men at the table I bussed was Don Henley and Glenn Fry. Who owns the song?
You, (the buss boy) owns THAT song you created....but you can't do anything with it unless you compensate the person who laid it out on the napkin. You are both owners so to speak and both should reap the benefits. Google the Disney Sports complex law suit. Started just like this. Disney ran with it...and the guy who drew up the napkin sketched idea at the dinner table kept that napkin. Disney later developed the Sports complex...and the guy began his law suit...and past away before seeing ti to fruition. His family then continued the law suit and won about 7 years back....sort of won....non declassed agreement. They got something and I' sure it was huge. I don't think that Disney "technically lost, but they did pay. Something that huge, they don't give up without a major fight...so you can assume that their is strength to someone sketching out an idea on paper that needs compensated for it in some manor.
In the case of a tee shirt idea (as it pertains to us), the compensation comes from an exchange of services for the end product.
I always say, ...you charge for making screens and they don't take home the screen right? Unless you spell that out in your order form that they can take home the screen they paid for. Still, even at that, you don't get to own (the screens design) and manufacturer your own screens exactly like that. Think Newman.
I agree with this for the most part. That is exactly where I was going with this thread......it took a while but I finally got you to the water hole.
The example of the table napkin I gave has some truth. Former President Ronald Reagan's step daughter, I believe her name was Patsey Davis? ??? , actually sat in a room with the Eagles while they were writing the song "Witchy Woman". She later claimed to own some portion of that work and won a decision saying she was......my understanding is that she continues to receive some type of compensation to this day....
So now we take it to the Nike thing. Did Phillip Knight realize that while using the swoosh, that Ms. Davidson may have been compensated for art work rendered, but that he did NOT have a release of the concept and was the gift later on accompanied by release of the concept as well as the art. Just a theory.
That's my guess, but we will never know the true details but it makes sense. Looks pretty on the outside but really may be to cover them legally and protect for any future issues. In the end, I'm glad they did what they did. It was generous to say the least. They probably could have went back and gave her (fair compensation) equivalent to fair market value of the art (with full and complete rights) as it were back then. That might have been only a thousands dollars or so. But then, it may also not look good publicly and thus the additional for PR. either way, it's a good thing.
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I forgot about the shoutbox.... damn.
Now, I haven't gone through and read every post but I see a lot of tappity-tap from Dot Tone on this subject, and from what I know of his knowledge of copyright, he's probably right on the money here.
Basic thing to remember: When you or your customer pays for art, you are buying copyright, not the art itself. By default, according to law, that right stays with the creator and you only get the rights to use it, unless 1) It's specified otherwise in writing, 2) The artist has signed a work-for-hire agreement and 3) The artist is a full-time employee, in which case the rights are owned by the artist's employer.
Copyright agreements are rare in this industry. My invoices spell out what is actually being sold... usually I sell full rights to a design to my clients, but retain the rights to use the incorporated elements (cars, fish, background splashes, etc.) again in different designs.
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We have discussed a couple of situations that are of a large scale. While everyone may not agree, it seems as if DTD and I have agreed that there are rights for concept and creation in certain circumstances and that they do not always walk hand in hand.
I am now going to put out a situation of a smaller scale that may be possible for some of us smaller printers.
Abnormal High School was built 15 years ago. Until this season, they had never even won a football game, let alone had any success in the state football playoffs. By week three of the ten week season it appeared this season would be different. The local sports boosters have decided to start designing "State Championship" shirts, for surely this will finally be their year.
The first trip to ABC Screenprint the President of the booster club sets down with the artist and a sketch he had drawn with the bosster VP the previous evening. Pretty simple....put Abnormal, vertically arched on top and a clipart football in the center, and the words Stae Champions below.
Abnormal High continues to win the next two weeks and are now 5-0. Their closest game has been a 52-12 win. They are going to win it all! The President and the VP go back in to meet with the artist at ABC Screenprint. The design is pretty good but it is a bit generic. Can they add some motion lines to the football and the state of Texas in the background?
Two more wins and they are 7-0. Both recent wins were by more than 50 points. President comes back to ABC and mentions that they need to put the school mascot on the design and she found out that the state association for Texas will require their logo be on the Championship shirt as theyactually own the game and they will want royalties for their logo. Just 8%. Plus a $500 registration fee by the printer. Abnormal continues to win and enters the state playoffs. Just before the Championship Game the artist at ABC Screenprint get's a brilliant idea and caslls the boosters. Let's add a saying to the shirt......"It's Great to be Abnormal".
Abnormal High School sweeps through the playoffs and wins the State Championship. ABC Prints up 3000 shirts overnight for the boosters for the welcome home ceremony the next day down at the school. It's great, the shirts sell out in about 45 minutes and there are many more folks that want them. The fan base for Abnormal High School has swollen and is estimated at 20,000 people.
Enetr XYZ Screenprint, another local printer in Abnormal. They tell the President of the boosters that they will produce the same shirts for $3 less per shirt. Multiply that by another 17,000 shirts and that would be an extra $50 k in the boosters treasury. The President says of course, we may never have another opportunity to turn this kind of money. XYZ Screenprint has even said they would register themselves with the State association for $500 if necessary.
ABC Screenprint is not happy, obviously.
Now what? Who owns what, why and when?
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some of the logos are already copyrighted and are used via license. There is no question about that.
Unless specified in some sort of contract, everything else should be the property of ABC. XYZ can print the same design if they pay royalty fees or will have to redesign the art. They can go with the same concept suggested by the P and VP, but can not use the identical art material (except the licensed portions). If the mascot was provided by the school, it's fair game, if it was redrawn it is not.
Does that sound right?
pierre
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We have discussed a couple of situations that are of a large scale. While everyone may not agree, it seems as if DTD and I have agreed that there are rights for concept and creation in certain circumstances and that they do not always walk hand in hand.
I am now going to put out a situation of a smaller scale that may be possible for some of us smaller printers.
Abnormal High School was built 15 years ago. Until this season, they had never even won a football game, let alone had any success in the state football playoffs. By week three of the ten week season it appeared this season would be different. The local sports boosters have decided to start designing "State Championship" shirts, for surely this will finally be their year.
The first trip to ABC Screenprint the President of the booster club sets down with the artist and a sketch he had drawn with the bosster VP the previous evening. Pretty simple....put Abnormal, vertically arched on top and a clipart football in the center, and the words Stae Champions below.
Abnormal High continues to win the next two weeks and are now 5-0. Their closest game has been a 52-12 win. They are going to win it all! The President and the VP go back in to meet with the artist at ABC Screenprint. The design is pretty good but it is a bit generic. Can they add some motion lines to the football and the state of Texas in the background?
Two more wins and they are 7-0. Both recent wins were by more than 50 points. President comes back to ABC and mentions that they need to put the school mascot on the design and she found out that the state association for Texas will require their logo be on the Championship shirt as theyactually own the game and they will want royalties for their logo. Just 8%. Plus a $500 registration fee by the printer. Abnormal continues to win and enters the state playoffs. Just before the Championship Game the artist at ABC Screenprint get's a brilliant idea and caslls the boosters. Let's add a saying to the shirt......"It's Great to be Abnormal".
Abnormal High School sweeps through the playoffs and wins the State Championship. ABC Prints up 3000 shirts overnight for the boosters for the welcome home ceremony the next day down at the school. It's great, the shirts sell out in about 45 minutes and there are many more folks that want them. The fan base for Abnormal High School has swollen and is estimated at 20,000 people.
Enetr XYZ Screenprint, another local printer in Abnormal. They tell the President of the boosters that they will produce the same shirts for $3 less per shirt. Multiply that by another 17,000 shirts and that would be an extra $50 k in the boosters treasury. The President says of course, we may never have another opportunity to turn this kind of money. XYZ Screenprint has even said they would register themselves with the State association for $500 if necessary.
ABC Screenprint is not happy, obviously.
Now what? Who owns what, why and when?
Short answer: If ownership wasn't specified in writing, ABC owns any and all designs they created, because they created it, starting at the moment they created it and each time they modified it. Even if the design incorporates artwork owned by someone else, the design as a whole and all the parts involved in making the shirts, films, screens, etc... belong to ABC.
XYZ has to come up with their own artwork or buy it from ABC.
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I ditto CamandZ and Blue Moon.
ABC can now lease out the use of the art for 25% royalty if they like :) ABC can be a good sport and say yes, XYZ can do that for you...and ABC will even let them use my art (not own) but use...for X amount of $ in royalty per shirt. This way, you do not lose out any money and it's not a fight (if they take it)
You don't need to do the work and you still make out. If they do bite, then, they will cost them even more profit on the order and since it was apparently already so tight, they maybe pricing themselves out of being able to do it at all. ABC could do nothing but let the other guy lose more $ and price himself out of it...or gain the order back again with a fight about the art rights. I'd take them to school about art ownership. ;)
ABC holds some cards here. So ABC should plan carefully and cautiously so as to not eliminate business with Abnormal.
In the end, it can all be for not, if they decide that they can just do their own design with the same elements (but different). Some or many of the elements seem to be owned by 23rd party sources, even the clip art elements that can be used by them as well. So very little (25%)? might be truly owned by ABC as an individual element, but you have full ground to fight on the entire design as a whole.
Napkin sketch or not, an "idea" floating around in the sky ...can't be copyright protected. The physical tangible art or item can be.
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So you guys all agree.....
Even though Booster Pres and VP did the original sketch.
Lettering is done using licensed fonts.
Clipart was used for the football portion of the design.
Changes were done at the Booster Club request and direction.
School mascot is probably owned by school but not likely.
Texas association logo does not belong ABC
It seems to me the only thing that ABC could claim ownership of would be the saying, "It's Great to be Abnormal"
Does not the concept of this design belong to the Booster Club as they directed every aspect of it.
I would think that if XYZ owned the licensing to the clipart football and the fonts that were used, they should be able to duplicate the shirt without risk......minus the saying "It's Great to be Abnormal"
Huh?
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So you guys all agree.....
Even though Booster Pres and VP did the original sketch.
Lettering is done using licensed fonts.
Clipart was used for the football portion of the design.
Changes were done at the Booster Club request and direction.
School mascot is probably owned by school but not likely.
Texas association logo does not belong ABC
It seems to me the only thing that ABC could claim ownership of would be the saying, "It's Great to be Abnormal"
Does not the concept of this design belong to the Booster Club as they directed every aspect of it.
I would think that if XYZ owned the licensing to the clipart football and the fonts that were used, they should be able to duplicate the shirt without risk......minus the saying "It's Great to be Abnormal"
Huh?
Even if you don't own the tools, what you make from them is yours. Even if the design as a whole can't be used again by ABC because the parts are licensed, the design as a whole is theirs and no one else can use it.
THat booster can take his napkin sketch to ten different artists and get ten different concepts. That's why art is protected and ideas aren't.
Having said that, well, simple, generic designs are hard to protect... but since it's generic, why can't XYZ do their own take on it, instead of the exact same treatment ABC used? In my mind, any question about it means don't do it.
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So you guys all agree.....
Even though Booster Pres and VP did the original sketch.
Lettering is done using licensed fonts.
Clipart was used for the football portion of the design.
Changes were done at the Booster Club request and direction.
School mascot is probably owned by school but not likely.
Texas association logo does not belong ABC
It seems to me the only thing that ABC could claim ownership of would be the saying, "It's Great to be Abnormal"
Does not the concept of this design belong to the Booster Club as they directed every aspect of it.
I would think that if XYZ owned the licensing to the clipart football and the fonts that were used, they should be able to duplicate the shirt without risk......minus the saying "It's Great to be Abnormal"
Huh?
Even if you don't own the tools, what you make from them is yours. Even if the design as a whole can't be used again by ABC because the parts are licensed, the design as a whole is theirs and no one else can use it.
THat booster can take his napkin sketch to ten different artists and get ten different concepts. That's why art is protected and ideas aren't.
Having said that, well, simple, generic designs are hard to protect... but since it's generic, why can't XYZ do their own take on it, instead of the exact same treatment ABC used? In my mind, any question about it means don't do it.
of course XYZ could do a different design.Remember, this is not about compromise, it is about where the law would fall for each of these parties. It is a hypothecical situation. Hence the name Abnormal High School. This scenario is not likely to happen. That is surely one thing we could all agree on.
But the booster didn't say here is my napkin make me a shirt. They went in several times and said we need this, we want that. Over a period of several weeks. There idea was not just something floating around in the air.
And I definately disagree with the fact "art is protected and ideas are not". Ideas and concepts are absolutely protected.
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According to the law, "Copyright does not protect ideas, concepts, systems, or methods of doing something."
For instance, a recipe cannot be copyrighted. That's why the formula for Coke or the Colonel's chicken are such closely guarded secrets.
http://www.copyright.gov/help/faq/faq-protect.html (http://www.copyright.gov/help/faq/faq-protect.html)
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So you guys all agree.....
Even though Booster Pres and VP did the original sketch.
Lettering is done using licensed fonts.
Clipart was used for the football portion of the design.
Changes were done at the Booster Club request and direction.
School mascot is probably owned by school but not likely.
Texas association logo does not belong ABC
It seems to me the only thing that ABC could claim ownership of would be the saying, "It's Great to be Abnormal"
Does not the concept of this design belong to the Booster Club as they directed every aspect of it.
I would think that if XYZ owned the licensing to the clipart football and the fonts that were used, they should be able to duplicate the shirt without risk......minus the saying "It's Great to be Abnormal"
Huh?
Booster Pres and VP do not own "the idea" It's air. Can't use it to purchase a hamburger and you can't ship it. They (do own the napkin sketch) if they both or one of them hand did it themselves. If ABC sketched it on the napkin, ABC owns that napkin sketch. ABC or Booster Pres and VP...can frame the napkin if they like but won't get them much at the auction and you can't sell many tee shirts by duplicating the napkin.
Pertaining to the tee shirt art in question, The "concept" or idea belongs to no one. It's of no use. Only a physical item can be owned or protected. If you then lay out a diagram of an idea, (a schematic, a plan, a blue print, A writing) THAT can be protected (in and of itself) but it's not the FINAL product. It's like owning the napkin sketch. It's not worth much. Only the final art is worth the fight.
The actual ART and art file (not the idea) has value. The art belongs to the creator of the art that is used for production.
Idea: belongs to Pres and VP. Let them sell the idea. It's air and can't be sold.
Napkin sketch: it's tangible so, the person who drew out the sketch on napkin...owns the nakpin sketch ...and is not worth anything. It's not the usable art.
Actual Art: ABC owns the FINAL ART (as a whole design) so others cannot "use" in whole.
Similar art: XYZ can do a similar design using most of the same elements (but not ABC's elements that they own or came up with (like the slogan).
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So XYZ can duplicate the shirt if they do NOT use the Abnormal slogan?
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Wow. Just wow.
I realize lots of people skim these threads... but really.
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So XYZ can duplicate the shirt if they do NOT use the Abnormal slogan?
I would say, unless ABC has taken steps (better hurry) to register that slogan, it's up for grabs. As I read below, even the slogan...can't actually be "copyright protected" but it can be protected under "trade MarK'.
Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office (http://www.uspto.gov/), 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.
Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.
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A napkin sketch is a tangible manifestation of an idea and elements of the napkin sketch would absolutely be copyrighted at the time of creation. If there was a novel arrangement of elements or a basic design element that was later incorporated into a derivative design that derivative design (possibly a finished piece) would not be legal to use without permission, sale or license from the original design creator. It all depends on whether or not the final design incorporates copyrightable elements of the original sketch. That is where the law is very fuzzy. What constitutes infringement? If you have the money and the lawyers it is possible to expand your rights past a point of common sense. There is no absolute line between referencing an idea and copying. A judge or a jury would be the final arbiters. Anyone taking their rights seriously would do more to strengthen their case rather than rely on an undated napkin sketch! But under the federal law the copyright is in effect when the design takes physical form. Companies go at it over trade dress (color schemes) and all sorts obscure design elements. Where a logo falls on a shoe could be contested (regardless of the logo used). Even legitimate parody is often contested. That's why everyone watches out for the big players like Mc Donalds and Harley Davidson.
It is true that an original copyright holder does not have a claim on derivative works you might create, but your commercial use of that derivative design is limited to what you can work out with the original copyright holder.
The slogan mentioned if not referenced as a trademark or service mark. So as long as the arrangement of type wasn't novel and the type itself wasn't the same in a new design (basic copyright protection) the slogan itself is not protected at all.
In reality the rights that Dan is referring to should always be negotiated up front. That is often not the case in our industry. Court precedents currently do not favor the relenquishment of the artists rights without a clear agreement. But most of the public really don't understand that. So there is a disconnect between the current legal climate and what the public chooses to do. So why not be clear about the "ownership" of a design from the start?
I'm a lot more comfortable with copyrights and trademarks since I picked up a few books from Nolo Press. Helped me trademark my business name by myself too!
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Wow. Just wow.
I realize lots of people skim these threads... but really.
If this is directed at me, you really have no idea what this thread is about. It was merely to spur conversation about the complexities of artwork, ownership and use.
Thanks to those that participated. I found it very interesting.
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Wow. Just wow.
I realize lots of people skim these threads... but really.
If this is directed at me, you really have no idea what this thread is about. It was merely to spur conversation about the complexities of artwork, ownership and use.
Thanks to those that participated. I found it very interesting.
You can theorize what I do or don't understand as you please, but Dan answered the question you asked in the post before your question. As I mentioned in the FIRST post I made, I think it's a wonderful subject that most in this business don't know enough about, or don't know anything about.
I was just thinking, wouldn't it be great if people would pay attention to the answers before asking questions that have already been answered?
I apologize for the tone, but I am still amazed.
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And that folks is why I don't participate more.
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No worries team mates. :D We all can get a little "different" at times. Each one of us. I can remember myself a few times posting up a "theoretical" question. Proposing a question just for the educational purpose of it. In fact I used to do it quite a bit...and not everyone understood or got my drift that I was merrily posing a question for conversation or education and not so much to get my own answers for myself.
I learned to be more careful with doing that as people (all people) do not think alike and some may think of me as as Ass for posting such a question. Then, that stigma gets carried around (cuz most often, I never realize they think this way of me....or it has fallen off my shoulders...but they still carry it around. Then, people talk and one guy says to another...That Dot-Tone is an Ass when you really get to know him. LOL. Then THAT guy thinks. Hey, that Dot-Tone's got a reputation of being a real jerk...and here I am, looking around wondering where everyone went. :-[ but good thing I've got ADD cuz I forget about all that and move on. :P So if anyones mad at me...I don't even know it. ;D So let it go. Come to think of it, if we ALL had ADD I don't think anyone would be mad at anyone or ever remember for more than a few days.
This truly was a good thread and shall remain so in my heart ")
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Man, ya'll know how to over think something. Good topic that is important for printers to be up to speed on.
IP law is complicated. IP ethics even more so. You need to have strong knowledge of and stance on both to work with graphics.
We include "basic layout, design and fine looking digtial mocks" with our print orders. (rolled into pricing, in case anyone was wondering, averages about a half to one hour's work, including pre-press often since I'm always streamlining my art to pre-press) I bill art at $35/hour beyond that. If you have me draft art for you as my company, it's yours and I provide a logo kit at the end. Even if I do it pro-bono, it goes on the invoice, discounted, logo kit provided. If I made you art you will always hear me say "this art is yours to do with as you please and your responsibility to protect and maintain the IP rights, if necessary". I will agree with Brandt that witholding art, essentially paid for by the client in your pricing or in some cases gifted to them as a loss leader, is unscrupulous and say it's also a stupid, senseless business move.... There are some shades of grey in matters such as internally generated clip art. I do this- squirreling away banks of vectors and illustration elements that I make in the process but are not used in a final design for use later on another and sometimes multiple ones, though I avoid re-using where possible. So there may be visual similarities or identical elements in two pieces I've drafted for clients. That's something to address I suppose.
What's missing in this conversation is the on the ground reality of how IP infringements and issues are resolved. Copyright is wildly different from trademark and I see both used interchangeably in this thread. They are very different. I've never filed a copyright on anything, not worth it in my line of work to do it. If something is so hot, or so tied to my operation, that I know other entities are likely to create imitational product derived from it, confusing theirs with my own, I trademark it and enforce it to the best of my financial ability. Copyright, again, is a little different but in both cases you, the owner of the IP are paying to enforce and it's very rare to receive damages. In fact, it's very rare for any infringement disputes to reach a courtroom. The costs are monumental.
Just wanted to chime in here with another windy post on this thread. I've developed, registered and now sold trademarks successfully and it's amazing how the reality of IP handling differs from our typical perceptions.
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A napkin sketch is a tangible manifestation of an idea and elements of the napkin sketch would absolutely be copyrighted at the time of creation. If there was a novel arrangement of elements or a basic design element that was later incorporated into a derivative design that derivative design (possibly a finished piece) would not be legal to use without permission, sale or license from the original design creator. It all depends on whether or not the final design incorporates copyrightable elements of the original sketch. That is where the law is very fuzzy. What constitutes infringement? If you have the money and the lawyers it is possible to expand your rights past a point of common sense. There is no absolute line between referencing an idea and copying. A judge or a jury would be the final arbiters. Anyone taking their rights seriously would do more to strengthen their case rather than rely on an undated napkin sketch! But under the federal law the copyright is in effect when the design takes physical form. Companies go at it over trade dress (color schemes) and all sorts obscure design elements. Where a logo falls on a shoe could be contested (regardless of the logo used). Even legitimate parody is often contested. That's why everyone watches out for the big players like Mc Donalds and Harley Davidson.
It is true that an original copyright holder does not have a claim on derivative works you might create, but your commercial use of that derivative design is limited to what you can work out with the original copyright holder.
The slogan mentioned if not referenced as a trademark or service mark. So as long as the arrangement of type wasn't novel and the type itself wasn't the same in a new design (basic copyright protection) the slogan itself is not protected at all.
In reality the rights that Dan is referring to should always be negotiated up front. That is often not the case in our industry. Court precedents currently do not favor the relenquishment of the artists rights without a clear agreement. But most of the public really don't understand that. So there is a disconnect between the current legal climate and what the public chooses to do. So why not be clear about the "ownership" of a design from the start?
I'm a lot more comfortable with copyrights and trademarks since I picked up a few books from Nolo Press. Helped me trademark my business name by myself too!
Ha! Speaking of skimming threads, I missed this one. This is pretty much right on. You see the big boys enforcing left and right because they have that size budget for their IP dept. I actually think that's how some of their lawyers get so carried away with some of the attempts you see at enforcing against "infringements" that clearly are not going to be confused with the mark holder's products and services. That "eat more kale" v. "eat more chicken" one was one of the dumbest I've ever seen and lead to another point. Trademarks are file by class of products. Nike, for instance has no rights over a towing service in Greece named Nike Towing (Nike is, after all, simply a the greek goddess of victory) unless they have Nike as a service mark in that class. Why Chick-fil-a thinks some hippie selling home printed T shirts that say "eat more kale" is confusing consumers as to whose products are whose is beyond me. I've never bought a T shirt and mistook it for a fast food sandwich.
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Geez.....and I was told that Dan had covered it all..................................
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Geez.....and I was told that Dan had covered it all..................................
I have been accused of overkill in my post...on many occasions. Guilty as charged.
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Covered it all? This thread's only 3 pages long.
You can do as you please at your shop, but according to the law, the creator owns copyright unless otherwise specified in writing. The best practice is to transfer ownership... just write it out and charge accordingly. (Nobody values what they don't have to pay for.)
This is how the graphics arts industry works. All other fields of publishing do it this way. Not doing it is just like saying we are not on par with the rest of the graphics industry, we don't value what we do, hell, we do it just because it's fun. After all, look at all the shops that use.... CorelDRAW. :P
These laws were put in place to protect creatives and they do help fight plagiarism... to help prevent people from making money on work they didn't do.
It works for everybody else in the graphics world. But not screen printers I guess. ::)
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Let's be clear.
1. I started this thread to generate a discussion about art work.
2. I continued to ask questions that may have seemed to be answered for the sake of continueing the discussion.
3. Screen Foo busts my chops about asking questions that were already answered.
4. This is not about my shop or anyone else's. It was a hypothetical situation.
5. In the past, I have hired a copyright, patent, trademark law firm to protect my rights and trust me, they made it very clear about what the laws were and how courts applied them in different cases. I have a pretty good understanding of this subject.
6. The fact is it is written out very seldom in the screenprinting industry as many do not understand it or they don't care to understand it.
7. You are correct that three pages don't begin to cover it. Hundreds of pages don't cover it. And while written statements are helpful when it comes to protecting the "creator" it certainly guarantees nothing in court. Ultimately the judge will decide who the creator is.....
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To lighten up the subject for Fridays sake check out Threadless. They blatantly rip off Marvel (Spiderman) and dozen of others
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And that folks is why I don't participate more.
trebor,
this was the most informative post on this subject we had in a long, long time! Please do not give up on us.
pierre
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I broached this subject yesterday in the shoutbox and was surprised that no response came. It may have had to do with the time of day as it was later in the day.
When discussing art and ownership many think it is a simple subject. I do not. I believe it is very complicated.
So here is a hypothetical question....if someone draws a sketch on a piece of paper and says this is what I want, who owns it then?
Let me tell you my point of view. You ask a loaded question. What did they draw? Was it a original of their own or was it something they saw before.
Copyright is not cut and dry. If your looking to protect your art then you have to have money put aside to defend your ownership. Yes you can do all the legal stuff to protect it but that does not stop people from using it. Anyone can come into any screen printing shop and say I created this mouse and I want it put on shirts. Do we do a back ground check and image search to make sure they truly have the right to print that image on shirts? No. No way do we have that time. I honestly don't feel we could stay in business if we had to. Who's job is it to? You the creator of the art. Do teh legal stuff so that when you find someone using your art an making a ton of money you can sue. Then you get to take all their money they made off your art. Well that is if you have a better lawyer.
If you want more knowledge on copyright this is a good start. Its old but still helps.
http://www.amazon.com/Electronic-Highway-Robbery-Artists-Copyrights/dp/0201883937 (http://www.amazon.com/Electronic-Highway-Robbery-Artists-Copyrights/dp/0201883937)