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Journey from Concept to Creation

There is far more to the creative process than learning how to use software and configure hardware. This blog addresses them.

Intellectual Property

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There is an old Chinese proverb that says, "He who knows not, but knows not that he knows not, is a fool. Shun him." Truer words were never spoken. Comtemporary wisdom says, "Ignorance of the law is no excuse for violation of the law." In consideration of these truths, I will try to make the basic tenets of copyright, trademark and patent law as simple as possible so that even a fool can understand them. I will also attempt to clear up common misconceptions and address the exemptions to the law (such as this commentary) that fall under "fair use."
     International society has reached a consensus that creative artists should have moral and economic control over how and where their work is used. Copyright law protects the rights of these artists which include filmmakers, composers, authors, fine artists, commercial artists, graphic designers, web/interactive designers, photographers and others. I was told in art college that if a juror holds the original in one hand and a copy in another and believes with 60% or better certainty that the copy is derived from the original, then there is a legal basis for copyright infringement. If the author can prove in court that he or she owns the work and can prove that the defendant has copied it, the plaintiff will recover attorney's fees, actual damages, statutory damages, or any profits that were a result of the infringement. The judgment can be affected by the extent of the infringement and how much proof there is that the violation was intentional. [For more detailed information you may want to consult with an intellectual property attorney.]
     The author owns the rights to his/her work whether he or she has it officially registered or not. The benefit of officially registering intellectual property with the copyright office (requiring a $30 fee), is simply that it makes it easier to prove authorship in court. By the way, another pervasive myth is that the artist can mail the work to himself and use the postmarked, unopened envelope as proof. NONSENSE. Think about it. An artist can also mail an UNSEALED envelope to him or herself.
     It is important to note that only expressions of ideas are protected. The ideas themselves are not copyrightable [neither are drum charts or chord progressions -- only melodies]. An idea has to be produced in tangible form before it can fall under copyright protection. Also, commonly used and/or ubiquitous imagery is not protected. For example, if I take photo of the sky with billowing clouds, I own the photo itself, but not the license to photograph clouds. So if someone else takes a photo of clouds that looks like mine, I may not have a valid case against them.

     As I write this, there is a story circulating on social media regarding a legal matter between rock musician, Rod Stewart and Bonnie Shiffman, a celebrity photographer. Shiffman was originally hired by Stewart to photograph the back of Stewart's head for his “Storyteller” album which was released in 1989. 


ORIGINAL PHOTO (Credit -- Bonnie Shiffman)


A REPLICATE IMAGE OR UNMISTAKABLE COPY?


Shiffman's lawsuit claims that a current photo being used by Rod Stewart is "a replicate image, an unmistakable copy" of the original. According to numerous sources, Stewart's agent, Arnold Stiefel, offered Shiffman $1,500 for the reuse of the photo. Shiffman refused. So, Stiefel created a very similar photo without obtaining permission from Shiffman.

 

I believe that Shiffmann has a rock-solid case for the “not less than $2.5 million in compensatory and punitive damages.” It may be settled out of court. Nevertheless, the thing that interests me most is how many users have responded on social media in support of Rod Stewart. I have PARAPHRASED some of the comments I have read from supporters of Stewart as follows:

 

  • It is only the back of his head and it isn't worth 2.5 million for a photograph. This should be laughed out of court.
  • Stewart has worked hard all of his life to achieve his success so he is justified.
  • The photographer is preying on Stewart's success.
  • Stewart's head, hair, money and photo belong to him and he should get to decide how his photo is used and when.
  • It is ridiculous to claim that Stewart cannot use the copied photo simply because it is the same format as the original.
  • I love Rod Stewart and his music so much and he absolutely has the right to use his own image as he pleases.
  • Why would some “stupidly ridiculous person" try to capitalize on someone who started out digging graves and worked hard to achieve success as the greatest musician of my lifetime?
  • While some compensation would be in order, $2.5 million is a disgusting joke for one photo.
  • Where are privacy laws? It is great for an opportunist to get the photo of Rod Stewart but they shouldn't be paid for the priviledge.
  • The photographer is just doing this for the money and I hope she loses the case. She doesn't deserve a penny.
  • The photographer is trying to cash in on Stewart's fame and fortune. She takes photographs. Rod Stewart is a legend.

     

          Now I'm not saying that opinions don't matter. But I will say that the law is the law and there is legal precedent in this case. In my next blog entry, I will address some of these somewhat sophomoric, albeit heartfelt comments and how they fall into the context of intellectual property law. Stay tuned.

    Comments

     

    The Ad of the Century, continued... - Journey from Concept to Creation said:

    Pingback from  The Ad of the Century, continued... - Journey from Concept to Creation

    September 11, 2014 11:37 AM
     

    PDP – Copyright Infringement | melainawoodend said:

    Pingback from  PDP – Copyright Infringement | melainawoodend

    May 22, 2017 7:37 PM

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    About Adman

    After developing his artistic abilities from an early age, Robert Davis (Adman) started his advertising career as a graphic artist for a commercial printing company while in 10th grade. He later acquired degrees in Commercial Art and (later) Business Administration (Marketing with focus on computer science) while working in various advertising agency capacities. Robert started his own agency in 1989. He added an in-house Pro Tools® recording studio in 1999 and an Avid Xpress® DV video editing suite in 2002. He now also has two Avid Media Composer suites and an Xpress Studio HD suite in a fully equipped studio which also features SoftImage|XSI and Pro Tools. He believes that his company, Davis Advertising, Inc., represents a new model for the 21st century advertising agency…”a small, agile and responsive agency with comprehensive, in-house capabilities.” He says, “Avid® software provides the creative freedom and flexibility I covet.” His focus is on developing effective creative ideas via his own strategic planning process. He loves being surrounded by cameras, lights, props and other creative professionals who share his vision. He also, of course, loves working with Avid® software to bring his ideas to life. Currently residing in metro-Atlanta, Robert is an accomplished writer, producer and creative director. His advertising agency has served Fortune 500 accounts and has received several international awards. His work has been exhibited at the prestigious Cannes Lions Advertising Festival. When not riding his vintage Italian racing bike, or working out with free weights, Robert can often be found in the late evening singing or playing drums, guitars and keyboards in the studio.

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