Another question about the Boris Karlof monster image

'Is it legal', 'can I do this' type questions and discussions.
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Ekko
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Another question about the Boris Karlof monster image

Post by Ekko » Tue Sep 01, 2009 4:23 pm

Hi

I recently found a Universal Pictures black and white photo image of Boris Karlof as Frankenstein's monster, which, according to Wikipedia, is in the public domain. I have done some work on the image (tinted it blue, rendered it "brushstroke" and put a caption on it) so it is no longer identical to the original. Assuming the original image is indeed public domain, does my version of this image now belong to me, in the copyright sense?

Also, even though this image of Karlof as the monster is (let's assume) in the public domain, would it still be possible, in principle, for Universal Pictures to claim that my image infinges copyright on the basis of its similarity to their non-public-domain images of Karlof's monster? Or does the fact that there is at least one such public domain image undermine any such copyright infringement claim by way of "likeness".

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CopyrightAid
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Post by CopyrightAid » Sun Sep 06, 2009 10:00 am

A work based on another work is known as a derivative work. A derivative work may be subject to copyright in it's own right provided it is significantly different and contains new material. So potentially your version could be a copyright work, BUT only in so far as the material you add (you have no claim over any pre-existing work).

Please do not ask what 'significantly different' mean or how much new material is enough - such questions could keep a team of lawyers in happy employment for a month and still be overruled by a judge/tribunal.

I found this page, which I think may be worth a read as it deals quite well with this topic: http://www.publicdomainsherpa.com/derivative-work.html

As far as Universal Pictures claiming that your work infringes copyright - I cannot see this - provided of course your work is based on the public domain item.
There may be other (non-copyright) issues - I can for example imagine a complaint on the grounds that your work trading of the reputation of a recognised Universal Pictures brand (a trademark infringement perhaps)? - i.e. you could fall into the same category as people that sell fake T-shirts outside gigs.
I am not saying this is the case - and frankly this is outside my area of expertise so I am only raising it speculatively as something to consider. Maybe a call to Universal Pictures could sort this all out?

Ekko
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Post by Ekko » Fri Sep 11, 2009 7:47 pm

Thanks for your reply -- very helpful.

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