Legal Question in Intellectual Property in Missouri

Drawing based on photo

It is my understanding that copyright protects expression of an idea. If you free-hand draw a picture that "copies" or resembles a copyrighted photo, have you created a derivative work, or a totally different copyrightable expression of the item? What if you only use one part of the photo, and change other elements? For instance, suppose I draw a picture of a classic car based on a picture in a published calendar, but I change the background. Have I infringed on the copyright? What if I "trace" the car rather than free-hand draw it?

Asked on 2/03/98, 7:12 pm

4 Answers from Attorneys

Timothy J. Walton Internet Attorney

copying violates copyright

The fact pattern you suggest begs the question: Are you copying? If you draw a picture of a car while looking at the car, that is not the same thing as drawing a picture of a car while looking at a copyrighted picture of the car. You admit that such activity would be copying, but you wonder if it violates copyright.

Your claim that you would be merely copying the idea rather than expression is disingenuous. For example, the expression of the car includes the angle it is viewed at. Are you changing that aspect in your drawing? The fact that you are using a copyrighted expression as the basis for your work makes your work derivative. And stealing only one element is still stealing.

Now there is still a real question whether such copying would be worth suing over. Perhaps if the damages are big enough...

The problem is that the person doing the copying might be able to make the claim that he or she was not copying, but was rather drawing a picture of a car while looking at the car rather than the picture. There would have to be more evidence than simply the two pictures side by side.

Bottom line: copying without authorization is illegal and unlawful. Whether such unlawful copying has actually occurred is for a judge or jury to decide.

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Answered on 2/04/98, 12:08 am
Gerry Elman Elman Technology Law, P.C.

Derivative Work?

Yes, copyright protects only the "expression." If an artist creates a drawing that does not appropriate the protected expression of a copyrighted work, it is immaterial that the artist had access to, and may in fact have been "inspired" by, the work.

The difficulty is that, unlike a patent, a copyright registration contains no "claims" to identify the boundary of what's protected and what isn't. The safest way to avoid infringing someone else's copyright is to adopt a "clean room" strategy ... don't look at the copyrighted work when creating the new work, and don't even "remember" what it looked like.

If one cannot follow that safe strategy, then one can adopt the "legal best guess" as to what the protectable expression in the copyrighted work is, and certainly avoid putting any of it into one's own work. A lawyer familiar with the copyright cases in the Federal Circuit where one anticipates being susceptible to being sued could help the artist evaluate these factors. In general the less the new work looks like the copyrighted work, the better.

Even if a new work is a derivative work, it might still contain its own expression that is protectable by copyright. However only the owner of the original work can authorize the making of a derivative work. A derivative work is not protectable by copyright unless it is authorized by the copyright owner of the original work.

I'm sorry the law in this area's so complicated and even counterintuitive. Thanks for thinking about this question and taking the time to seek clarification.

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Answered on 2/04/98, 12:57 am

Copyright does not protect ideas at all, but rather expression.

Expression of the idea ... photos are considered to be expressions which consist not only of the original item being photographed but of the photographer's artistic input: angle, lighting, framing, f-stop, focus, etc., etc.

If you use the photo just to get an idea of what the original looks like, and draw what you think the original looks like freehand, my GUESS is that you would not be guilty of copyright infringement; I'm not certain, though. Is the car so unique that you can't find a few different photos to inspire your artwork?

I saw Thimothy J. Watson's reply to you already and didn't like it because it seems to suggest that you could break the law and maybe get away with it because it would be hard for someone to prove to a judge or jury that you'd done it. You were asking whether you would be breaking the law, not whether you would be likely to get caught, weren't you? If you're open enough to ask what you asked, I expect that you are also honest enough to tell the truth, when asked, and admit that you'd "copied" from the photo if you had.

By the way, tracing is definitely copying and would be considered an infringement.

Can you simply ask permission of the owner of the photo's copyright?

Please don't consider anything I tell you to be legal advice; I'm not your attorney and we have no such relationship; if we did, I'd have asked you more questions and would have researched my answer more carefully!

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Answered on 2/04/98, 12:57 am
Thomas Workman Law Offices of Thomas Workman

Why are you copying?

If you are copying the picture to use in a high school training class, then the copying would be allowed under the "fair-use" doctrine. If you are copying it to produce something that you will commercialize, then you violate the law. If the photo "featured" the car, then your copying would be of a "substantial" portion of the photograph. If there were thousands of cars, and you blew the photo up and traced just one, you might not be guilty of copyright (as an analogy, if you copied one word from a book, you would not violate copyright, if you copied a chapter, you would violate copyright).

If possible, find a car of the make, year and model you want to feature -- take some snapshots of it, and trace away to your hearts content (you own the copyright on the photos you took).

Sometime, based on the circumstances, it is OK to copy. If the work is in the public domain (possibly because of a defective copyright notice), or because the work is in the public domain, you can copy it. If in doubt, see an attorney who works in this area. The penalties for copying a work that has been registered can be quite severe, and if not registered, they can still sue you and prove damages sustained, and recover. Better safe than sorry....

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Answered on 2/04/98, 4:03 pm

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