Imaging Rights

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Cwalker935

Cwalker935

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Joined
May 18, 2014
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Richmond, Va
I think that I might be able to sell some of my casted image pens but am concerned that I might violate someone's property rights at some point. I have sold pens that use photos from the national archives. I figure that those are safe. Some images that I've thought about downloading are protected. Those,
I stay away from. This pen was made from an image from a website offering free computer wallpaper. I'm thinking that it is probably safe to use. Others are not protected and have a note that they may be copyrighted. Those, I wonder about.

Any thoughts?

image.jpg
 
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The ones that "may" be copyrighted are probably needing to be checked out. Possibly permission would be giveen if an acknowledgement was made to the photographer if a pen is sold.

Beautiful pen!!! I love the scene.
 
The owner of a copyright has the right to exclude any other person from reproducing, preparing derivative works, distributing, performing, displaying, or using the work covered by copyright for a specific period of time. Copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, mask works fixed in semiconductor chip products, or a computer program.
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Defacto rights is given to the photographer for every single image we take immediately when the shutter of the camera goes CLICK.

However 'fair-use' allows for many things.

Fair use is primarily intended to allow the use of copyright-protected works for commentary, parody, news reporting, research and education. However, not all uses in an academic context are automatically considered fair use.

The Copyright Act does not spell out the specific types of content reproduction that qualify as fair use. It offers an outline as to how to analyze whether fair use may apply in a particular situation. As a result, the Copyright Act leaves it up to the individual to determine, based upon the factors in Section 107 of the Act, whether fair use applies in each particular circumstance. To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of "when in doubt, obtain permission."
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^^^ This bold underlined and increased font size is the rule of thumb.

*) The Campus Guide to Copyright Compliance
*) U.S. Copyright Office - Fair Use
*) Fair use - Wikipedia, the free encyclopedia
 
Making a profit on someone else's imagine should never be considered as probably okay. Downloading as computer wallpaper is way different that selling a product with that imagine on it. Consider how you would feel if someone made a profit on a picture you took. I say that you need approval on every image you use. Unless you have a lawyer in the family that will protect all your assets for free. Is it worth your house to sell a few blanks?
 
Bummer. This pen is NOT for sale. Seriously, thanks for the good advice. I was not planning to sell his particular pen and was simply trying to think through the ins and outs of this type of pen.
 
My advice would be find a local photographer, maybe through shopping around your local art shows, and speak with them directly about this with images they've taken. Offer a % of each sale so you are only paying for what sells. I think it could be a great seller for you, best of luck.
 
interesting topic. What about clip art images??? I've done several decal pens from clip art found on the internet. They have all been gifts but do the same rules apply for these images??
 
kruzzer said:
interesting topic. What about clip art images??? I've done several decal pens from clip art found on the internet. They have all been gifts but do the same rules apply for these images??
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There is a lot of clip art available. Many will say "ok for personal use" or words to that effect. This does NOT cover "commercial" use---the owner still has the copyright and can sue for damages. Putting ANY art on a pen and selling the pen is commercial. Posting on your website which offers items for sale is also commercial.

When in doubt, DON'T use an image!! Unless it specifically states it is in the public domain, then, as I understand it, you can use it for anything.
 
JohnGreco said:
My advice would be find a local photographer, maybe through shopping around your local art shows, and speak with them directly about this with images they've taken. Offer a % of each sale so you are only paying for what sells. I think it could be a great seller for you, best of luck.
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Sounds like a win-win to me!
 
edstreet said:
Defacto rights is given to the photographer for every single image we take immediately when the shutter of the camera goes CLICK.
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Unless you were commissioned for the work.

IP rights get very complicated very quickly, which is why lawyers are usually involved.
 
I purchase images quite often. I use image sites like fotolia. Typically costs me around $2 an image, sometimes as much as $5. But hey, someone spent the time to create the image and they deserve to get paid too. Plus if someone comes to you about it, you can go into your photo account and pull the receipt instead of looking like a leach and claim it on your taxes end of the year...its a win win!
 
After reading everyones comments, I checked into fotolia and sent them an inquiry regarding whether purchasing their images gave you the right to sell products using that image. Here is their reply:

Hi.

Thank you for your mail. Yes, you can use our images for that as long as you purchase them with the Extended RF license.

Fotolia has two license types - standard and extended. Standard licenses are sufficient for most promotional uses, and allows you to include images in presentations, advertising, websites, and other marketing collateral. If you would like to use images in products for resale, you will require an extended license. This includes items such as t-shirts, posters, postcards etc. You can review the licenses here: Fotolia's contracts and licenses for Royalty Free images

Please feel free to contact us if you require any additional help in selecting an image license.

Kind regards,

Fotolia CS Team U.S.A.
+1 888-674-2299
Royalty-free Images - Royalty free images, photos, vectors and videos on Fotolia
 
Yep, ea service a bit different how they do it. On fotolia i choose extended xv, and i download vector images, those are the types of images for my type of work. No idea on photograph images what they cost. A typical fotolia xtended use liscence on a vector image is 40 credits, although i have seen them as much as 100. Credits cost anywhere from 20 cents to 90 cents, depends on you purchase power. I typically wait for an email deal and i buy a bulk quantity of credits for $50. So basically i wait and buy credits at 25-30 cents ea. so yea i guess i pay a bit more than i though, more like $7-10 an image...but still, thats a great deal in my opinion! If the final product isnt a hit you should still be able to recover costs and if it is a hit then you can re run the old file for the rest of your life.
 
While we're on the subject - what if I buy a printed image or decal? Am I allowed to resell it on another product (i.e., a pen.)

(I'm assuming not, but this is not my area of expertise.)

Gary
 
vtgaryw said:
While we're on the subject - what if I buy a printed image or decal? Am I allowed to resell it on another product (i.e., a pen.)

(I'm assuming not, but this is not my area of expertise.)

Gary
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Default is *NO*, you would need approval of the holder unless it was pre-given, i.e. public domain, gnu etc.. Check the original for explicit rights given.

Also ownership is not given when you purchase something. You are buying access rights.

Often times we see things like mickey mouse items, harley davidson logo and others that are taken from authorized items and put on unauthorized items and sold; this to is a major violation and the two companies that I listed will bring a case against everyone, including your mom. When in doubt, ask.
 
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Yes if you bought rights like stated about fotolia, you can use it on a pen, a t shirt whatever and re sell it to the public. Thats why the images are there to begin with. You just need to select the right properties for which you are using the image. If you just want to buy it to use as a header on a website then its dirt cheap, if you want retailing rights its still super cheap but 4-5 times more than if just using it as an internet non income picture. Theres several other sites i use too, lots of good ones, shuttershock is one of my favorites.
 
Bottle caps are like watch pens, its recycled artwork. Its no problem. If you buy or find any item you have the right to resell it any way you want. ( legal to own items obviously ) So if you find a coca cola shirt, you can sell it. If you buy one, you can sell it. What you cant do is buy red shirts and print the coke logo on them and sell those without a liscensing agreement. Same with the bottle caps, you can use them any way you want, you just cant buy a stamping press and make the bottle caps and print the logos on them and then sell those.

So if i go back to Gary's question. If he is meaning, he purchase a logo sticker, like say coca cola sticker at the store. Now he wants to use that on or in a pen and sell the pen, yes you can do that. Because coca cola is such a monster corporation, you might want to keep a reciept if mass producing these. Plus you be smart how you market them, dont call them coke pens, just call them decal pens!! Then they can do nothing, and they cant say they didnt get their cut in profit because they got that off the decal sale to you.
 
Just remember that when push comes to shove, it does not matter whether you or I or 99% of IAP members think something is allowed. It is what Disney, Coke, NFL, etc. think and whether you are willing to spend the time and money to defend yourself. If you are just making a couple pens, probably no big deal. If you plan on mass production and are visible (Etsy, EBay, Facebook) you should probably consult a lawyer not only about what you are using to make the pen, but how you are marketing it.
 
kovalcik said:
Just remember that when push comes to shove, it does not matter whether you or I or 99% of IAP members think something is allowed. It is what Disney, Coke, NFL, etc. think and whether you are willing to spend the time and money to defend yourself. If you are just making a couple pens, probably no big deal. If you plan on mass production and are visible (Etsy, EBay, Facebook) you should probably consult a lawyer not only about what you are using to make the pen, but how you are marketing it.
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You bet! Suppose I found a bunch of old Harley Davidson parts that had their name on them. I cast some blanks around them, and sell on Etsy. I bet I would get a letter from them really quickly! I doubt if they would agree with that scrap art deal.
 
So started doing a little research tonight into this issue. Just like us in this forum, everyone has an opinion...

There have been a lot of court cases revolving around the "First Sale Doctrine", which basically says that if you bought it, you own it, and you can resell it. There are differences of opinion on reselling an altered item, but there is quite a bit of precedence, many of which seem to revolve around making items out of printed fabric with copyrighted images. One of the best summaries I have seen is here:

Copyright Law - Licensed Fabric.

Does this make me all warm and fuzzy that if I took, say, a Mickey Mouse watch face and cast it into a pen blank I'm good to go? No, but probably only because of how vociferously Disney goes after people.

Gary
 
vtgaryw said:
So started doing a little research tonight into this issue. Just like us in this forum, everyone has an opinion...

There have been a lot of court cases revolving around the "First Sale Doctrine", which basically says that if you bought it, you own it, and you can resell it. There are differences of opinion on reselling an altered item, but there is quite a bit of precedence, many of which seem to revolve around making items out of printed fabric with copyrighted images. One of the best summaries I have seen is here:

Copyright Law - Licensed Fabric.

Does this make me all warm and fuzzy that if I took, say, a Mickey Mouse watch face and cast it into a pen blank I'm good to go? No, but probably only because of how vociferously Disney goes after people.

Gary
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Also keep in mind to that one recent case a guy bought, on ebay, some Disney costumes. The setup was doing parties and the like (i.e. party clown type) and Disney's lawyers sent them a letter demanding he send the costumes to Disney to be destroyed. The guy returned/refunded them to the seller, in Argentina, then Disney turned around and filed suit against him *AND* his family for $1 million.

Once the dust is settled on that case I can assure you it would be much easier, cheaper and healthier if he bought a sewing machine and made his own unique costumes.

Same is true in the pen turning community. You will benefit yourself and the community much better if you create original unique work and not copy others. The community becomes stagnant when there's heavy copy and not so much original unique going around. Even in your case with the photo's. You can take your own pictures, instant copyright to *YOU* and use them.
 
Images is a funny area. Pictures in particular, I think there are more lawsuits to prevent the picture taker from publishing unauthorized pictures than copyright violations. Many places now allow cameras (including cell phones) to be confiscated
if taken in to certain areas - even if they weren't used, and the pictures contained in them definately do not belong to the taker. But since there is probably no good reason to use photos not in the public domain I wouldn't bother doing so.

Decals, if you legally purchased it from someone who has the right to sell it, you can use it. The original owner gave up their rights to challange its use when they sold the license to another company to make it for sale. The end buyer owns it. The model railroad and model car industries are good examples. I never heard of anyone being sued for taking a decal from a model kit (many of which come with an assortment of decals) putting it on something else and sellint that item.

Watch Parts - if I bought the watch I can sell it and that includes selling it in the form of a pen blank made from from the parts. The manufacturer has no rights at all, what I buy I can sell. Disney has no rights to my Mickey Mouse Watch pen if they sold me the watch or it was manufactured under license and I legally purchased it, just as they have no recourse if I have a particularily rare one and sell it intact for a lot of money.. I own it, I can sell it. That applies whether I have one or a thousand of them.

There is an entire industry in this country devoted to restoring items once used for advertising and the original can be restored without violating any of the company's rights. Harley-Davidson can not prevent me from restoring an antique Harley and they cant prevent me from selling that restored item. They also can't prevent me from reselling any original Harley Part and that includes parts small enough to be included in a pen blank for resale. It would be no different than putting the part in a paper weight whether or not it has a Harley logo. Pictures they could have copyrights, but not parts.

With the costumes Disney had to be asserting that they were not legally obtained. They might have been stolen, given to someone soley to be displayed, loaned to someone for display or any of a host of other reason..They had to be claiming that the eBay seller had no right to sell them.
 
Just as an aside...there are seen at many craft shows, items that include an image taken from wal paper catalogs. I have a couple in my house that I made for personal use but I see them at many craft fairs. I've never heard of a company objecting. I got the book that I have from a Wall Paper Store and they knew exactly what I intended to do with it but didn't care.
 
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