Art Work ownership

[dave58]

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

[Dottonedan]

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.

[Dottonedan]

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.

[trebor]

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.

[Dottonedan]

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.

[Command-Z]

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.

[trebor]

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?

[blue moon]

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

[Command-Z]

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.

[Dottonedan]

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.

[trebor]

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?

[Command-Z]

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.

[trebor]

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.

[Command-Z]

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

[Dottonedan]

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).