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A derivative image vs. an adaptation

 
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Joewithajay
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PostPosted: Fri Oct 22, 2010 12:17 pm    Post subject: A derivative image vs. an adaptation Reply with quote

Hi there,

I work for a small independent music magazine based in London, UK. As a recurring feature of our magazine, we intend to re-create iconic album covers by using live-action photography and original graphic design; although the images will closely resemble the original artwork, no part of the original artwork itself will appear in the new image.

Additionally, the magazine would like to re-create its logo using a lettering which closely resembled the original album's title calligraphy; although the lettering would not be exactly identical, it would still be an obvious inspiration from the original. The lettering would be produced in-house by an artist.

I'd like to ask whether this would be legal, and whether permission from the original copyright holders would be necessary.

All the best.

Joe.
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AndyJ
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PostPosted: Fri Oct 22, 2010 1:55 pm    Post subject: Reply with quote

The 1988 Copyright Designs and Patents Act only talks about Adaption in relation to certain copyright works. Here's what it says:
"76. Adaptations.
An act which by virtue of this Chapter may be done without infringing copyright in a literary, dramatic or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made.
"
The Chapter referred to is Chapter III: Acts permited in relation to copyright works.
Note that it doesn't include artistic works, ie paintings, sculptures, graphic designs, photographs etc.
The term derivative, although not appearing in the CDPA 1988, is generally held to mean a work which incorporates an underlying copyright work (the 'original' so to speak) but which also attracts copyright protection in its own right. The sound recording of a play, or the broadcast of an opera for instance, would be derivative works and have their own separate period of copyright starting from the date of recording or broadcast respectively.
The type of work that you want to make would, generally speaking, be classed as an artistic work, and as such the only important consideration is whether any of the original work is copied literally. You say that this will not occur, and that you artwork will be created from scratch, although based on the idea and look of the original album cover. So there should not be any infringement of copyright. The fact that the resemblance is deliberate, means this is a pastiche - it relies on the viewer knowing the original and understanding the hat-tip. Patische and Parody are concepts that English law has not yet fully recognised, but nonetheless, so long as there is no deliberately derogatory treatment of the original, you should be on fairly safe ground as far as copyright is concerned. There is a 'but' which I will come to in a moment. You also asked about using a typeface (or calligraphy) from the original in your designs.
Section 54 of the CDPA says:
"54. Use of typeface in ordinary course of printing.
(1) It is not an infringement of copyright in an artistic work consisting of the design of a typeface
(a) to use the typeface in the ordinary course of typing, composing text, typesetting or printing,
(b) to possess an article for the purpose of such use, or
(c) to do anything in relation to material produced by such use
;"
This is a relatively obscure, and to my knowledge, untested part of the Act, so I think we can take it at face value. You do not infringe the copyright inherent in the design of a typeface by using that typeface to print words etc. There is no prohibition on also incorporating a copyright typeface into a graphic work, so as to form a logo.
Here are the 'buts'.
Another part of the CDPA deals with unregistered designs (UDR), whilst the Registered Designs Act 1949 deals with registered designs (RDR). Both Acts have been extensively modified over the years, but I won't clutter up the posting with too many details. Most aspects of the appearance of an object can be classed as a design. There is significant overlap with copyright and trademarks, and to a lesser extent, patents. Album covers can certainly attract RDR protection, but they need to have gone through the formal registration process. Unregistered design right, as the name suggests, comes into being once a design is recorded in some material form, in a similar way to copyright. But UDR (unlike RDR) cannot exist in mere surface decoration, which is how I suspect one could describe the graphics on an album cover. (Section 213 (1)(c) CDPA 1988), so this aspect would only be a problem if the album cover had been registered as a design. A very quick check of the IPO (www.ipo.gov.uk) site has not thrown up any registered designs for album covers, but of course one also needs to take into account the US music market, where designs are covered by patent law! The reason for mentioning RDR is that it gives the rights holder different protection: infringement can occur if the disputed item does not "produce a different overall impression on the informed user" from that of the original work. This is a much more subjective test, and therefore more open to interpretation on a case by case basis than occurs with copyright. Make sure you check all the small print on any album cover to see what protection rights are claimed by the record company, and take it from there.
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Joewithajay
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PostPosted: Fri Oct 22, 2010 2:16 pm    Post subject: Reply with quote

Thanks Andy, much appreciated.
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typonaut
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PostPosted: Fri Dec 31, 2010 10:01 pm    Post subject: Reply with quote

In Creation Music v News International the court found that the mere arrangement of a group of objects for the purpose of a photoshoot (Oasis' "Be Here Now") was not proper subject matter for copyright. However, the actual photograph of this scene is.

This would tend to support the notion that recreation of that arrangement is not an infringement either. But I wouldn't rely upon it.
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