Nolo’s Patent, Copyright, and Trademark Blog

Dear Rich: I have a question. I read about an artist who is trying to get paid by the State of California. They’re using his painting of a whale on license plates. I thought all images of animals were in the public domain. I’m interested because I’m a crafts artist and I’d like to replicate certain animal images on jewelry. I’m so glad you asked. I’ve written about one aspect of your question — the copyrightability of art that borrows from nature — in a Nolo article, so check that out. If you’re too busy to get through the whole thing, I can summarize it by saying that the natural appearance of birds, bees, flowers, and the like are in the public domain. So if you’re making wax candles that look exactly like a corn cob, or animal heads that look exactly like a leopard, you’ll have a hard time claiming copyright.

But if you’re going beyond an exact replication of an animal — for example, painting an inspiring shot of a whale’s tail as the animal dives into the water, or creating a whimsical bespectacled penguin that also understands IP law, your original expression is protectable and you can stop others from copying.

In regard to the whale license plate, the bigger issue seems to be that the artist made a handshake deal with the State of California. (Who knew states had hands?) As readers of the Dear Rich blog know, all arrangements transferring intellectual property should be in writing. Lacking any paperwork, the state’s got a weak defense.

BTW, we almost quoted directly from the Associated Press story on the subject. As you’re probably aware, there’s no way the The Dear Rich blog is going to move beyond its current obscurity without being publicly chased by a big-time plaintiff (and the AP is a tempting, though unglamorous target). Alas, we decided to hold out for Mr. Right.

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don’t place on this register will become “orphan works” that anybody can use without your permission? I’m so glad you asked. The answers to your questions are “maybe,” and “not exactly.” An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can’t be found and the publisher doesn’t want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher — after performing a diligent search –- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their “good faith” search for the owner, (2) file a “Notice of Use” with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special “orphan works” symbol when the work is published.   

 Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They’re worried that if a piece of artwork doesn’t show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there’s nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan … since the artist and his work are easy to locate on the web (Steve, please don’t sue).

Dear Rich: I have a question. I sell karaoke machines. Do I have to pay a separate fee to display the lyrics? Or does the fee I paid for the music cover the lyrics, too? I’m so glad you asked. Yes, you will have to get a separate license for the lyrics even if you paid the compulsory license fee for the music. That’s because the display of the lyrics on the screen (in conjunction with the music) is considered an audiovisual work and requires a separate permission. That’s the word from the Ninth Circuit in Leadsinger, Inc. v BMG Music Publishing (.pdf) (which harmonized California courts with New York karaoke case law). In Leadsinger, the karaoke company argued that displaying the lyrics was a fair use (claiming it taught users how to sing), but that argument didn’t fly with the judges who must have been watching this.

And, to find out how you can license copyrighted materials like this,  see the latest edition of my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Nolo).