[Commons-l] Models, toys, and other objects can be copyrighted

Sun May 21 22:07:51 UTC 2006

On 5/21/06, Erik Moeller <eloquence at gmail.com> wrote:
> On 5/21/06, Anthony DiPierro <wikilegal at inbox.org> wrote:
> > Is there case law suggesting that photographs of costumes or action
> > figures are copyright infringement?
>
> That's a valid question. One could argue that photographing a doll
> removes the expression from commercial relevance to the copyright
> holder. If that is true, then I would suspect photos of dolls (not 3D
> models) work particularly well for cartoon characters, while artist's
> impressions are better for human actors. Is there such a thing as
> "clearly derivative, but not infringing"?
>
Actually, this brings up a common misnomer about US copyright law,
which is probably in part spread because of the strange terms of the
GPL.  Whether or not something is a "derivative" is irrelevant to the
particular situation.  Copyright law protects *preparation* of a
derivative work and *copying* of a copyrighted work, it doesn't
*directly* protect copying of a derivative work.  Copying of a
derivative work is infringement only because (or maybe I should say to
the extent) it involves copying of the original work (see Mirage
Editions v. Albuquerque A.R.T. and Galoob v. Nintendo).

> The situation is complicated by our assertion that the image is free
> content, allowing you to use it for any purpose whatsoever. Of course
> it's always possible to effectively turn a free content picture into a
> copyright infringement through modification. I really don't have a
> clue where to draw the line at the moment.
>
> We live in a copyrighted world. It gets quite nauseating sometimes.
>
> Erik

The combination of copyright, international law, and free content is a
very tricky one.  This is one of the things I hope can be hashed out
to some extent during the Free Content Definition procedure.