Re: Copyright free images-clipart

On 5/16/06, Larry Steller <liveam[_at_]hotmail.com> wrote:
> I hope someone here can answer my questions regarding copyright free
> images and clipart.
>
> If someone digitizes an embroidery design from copyright free clipart,
> can they claim to own the copyright to the design ?

Maybe. If the work which draws upon a public domain work has sufficient originality in whatever is done using the prior work, the second work can indeed have a copyright. I can take a work in the public domain, such as the Mona Lisa, and put a Star Wars background behind her and have a copyrighted work. Of course I would not thereby get a copyright in the original Mona Lisa -- it would still be in the public domain. And unless I had permission to do so, or my use was "fair use" I would be infringing Star Wars copyrights. But my work combining those two elements would be sufficiently original (not very original or creative, but the threshold is low) to have a copyright.
>
> >From what I've read, my conclusion was once something was copyright
> free, in the public domain, it couldn't be copyrighted. Am I wrong ?

You are correct. But the problem of the work based on a public domain work effectively removing the prior work from the public domain can be a tough one -- sometimes the second work would seem to result in a re-copyright of the original. In such cases the courts will tend to not allow the copyright in the second work.

>
> Example, I created hundreds of digitized red work embroidery designs
> from copyright free clipart over the past 7 years, only to have a company
> claim to Ebay I was infringing on their intellectual property rights. Since
> the clipart used was copyright free, I thought the designs couldn't be
> copyrighted, so how can I be infringing on their intellectual property
> rights, when I have the right to sell what I created from copyright free clipart/
> images ?

If you copied the company's copyrighted work, you would be infringing.  If both you and the company independently created similar or even identical works from the public domain sources, you would both have independent copyrights (assuming sufficient originality as noted above), and neither would be infringing the other.
>
> 1. Can something be copyrighted if created from copyright free clipart ?

yes. See above.
>
> If it can, then how can anything really be copyright free and in the public
> domain ?

this is in fact a real concern in the digital age. But the thing that was in the public domain still is and can be copied by others.

>
> For small businesses or individuals copyrighting their work doesn't do much
> good, unless they have the financial and legal resources to protect their
> copyright, which most don't. So in essence, a copyright is only good if
> you can financially afford to protect it, which leaves out the majority of
> individuals and small businesses.

Largely true.

BTW, much of what people think of as copyright-free clip art is not really free of copyright. The clip art has a copyright, but the owner of the copyright licenses the use of it to anyone who owns an authorized copy of it. The license may in fact extend to creating derivative works.

>
> Thank you in advance for any help regarding my questions.

-- 
Prof. Steven Jamar
Howard University School of Law