QUESTION
Can I use a copyrighted image to create another work in a radically different format?
Asked on Sep 28th, 2012 on Intellectual Property - Virginia
More details to this question:
I own and operate a 3-axis CNC mill, which is essentially a motorized 3D carver that is computer controlled. I have modified existing processes that use 'patterns' to carve and, with some changes, gained the ability to take images from the 'net and use them as patterns- thereby making carvings that have a recognizable character (like a famous artwork, celebrity or cartoon character) but is rendered in a totally different medium, and is not represented as an original by the artist. Essentially, I'm asking : If you can use a snapshot as a model to paint a celebrity on canvas, or you can paint a recognized trademarked image (think: Warhol's Campbel's Tomato Soup Can), then is it legal for me to create carvings in wood that resemble the original(s) as long as my works are VERY obviously not intended to be a REPRODUCTION OF the original, but only a LIKENESS of the 'model'? Further- from my point of view in this scenario- is there a difference between copyrighted and trademarked imagery?
1 ANSWER
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Nancy J. Flint Attorney at Law, P.A.
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Probably not. Under the United States Copyright Act, the author of an original "work of authorship" or the copyright owner of that work has the right to, among other things, make "derivative works" of the original work. A "derivative work" is a new work that is based on an existing work. For example, a motion picture based on a book would be a derivative work of the book. Making a derivative work of an existing work without permission of the author or copyright owner of the original work is copyright infringement. There are situations under the doctrine of "fair use" where you can use an existing work without infringing the copyright, for example where the original work is "recast" or "transformed" sufficiently. That is an extremely fact intensive question and is impossible to judge without knowing more details. Even then, it would be a judgment call and a copyright owner may still object - and a judge may agree with the copyright owner.
Answered on Sep 29th, 2012 at 11:25 AM