Can a cartoon character be protected by copyright?

Yes, an original cartoon character is protected from the moment it is first fixed in tangible form. For example, a two dimensional image of the copyrighted cartoon character is protected from copying into any other medium, whether it be by photograph, photocopy, sculpture, or scanning onto a computer screen. In other words, a three dimensional sculpture based on the two dimensional rendering of the cartoon character is a derivative work which infringes the original two dimensional version. The fact that the infringer transformed the two dimensional image into three dimensions does not allow him to escape the original artist's copyright. Doing so constitutes the creation of an unauthorized derivative work.

Who owns the copyright when a free-lance artist is commissioned to create the work?

This turns on whether the free-lance artist has entered into a written agreement assigning his copyright to the commissioning party. If the free-lancer has assigned his copyright to the commissioning party, then the commissioning party owns it. However, if the free-lancer has not assigned his copyright to the commissioning party in writing, then the free-lancer owns the copyright.

Are engineering drawings protected by copyright?

Yes, technical drawings are protected by copyright as a "pictorial, graphic, and sculpural work." It is not necessary that the subject matter protected by copyright constitute what is normally thought of as "art." Nevertheless, making the object described in the engineering drawing is not a violation of the copyright in the technical drawing. However, doing so may violate the copyright in the object described by the technical drawing.

May a publisher buy a painting from an artist and publish an altered version of it without the artist's permission?

No, provided that the copyright in the painting is owned by the artist and the copyright has not expired, or provided that the alteration constitutes a violation of the artist's right of attribution and integrity. The unauthorized alteration of a work infringes the exclusive copyright to prepare derivative works based on the copyrighted work and the publication of the altered work infringes the exclusive right of public distribution. However, if the painting is a work made for hire, the copyright in the work is owned by the employer. In this case the employer may be free to make changes without the artist's permission. If the change prejudicially affects the honor or reputation of the author, then it constitutes a violation of the artist's right of attribution and integrity. In this case, despite having sold the copyright, the artist may prevent the owner from making these changes.

Is it necessary to get permission from the persons depicted in, say, a photograph or from the copyright owner prior to publishing and distributing the work?

Good practice dictates an affirmative answer to this question. Permission should be obtained from both the subject and the copyright owner prior to publication and distribution, especially for mass-marketed works like publicity posters or billboards. The subject of the work, particularly celebrities may have a legally protected right of publicity preventing another's unauthorized use of their image for commercial purposes. Non-celebrities also have a right of privacy which may allow them to take action against unauthorized users of their image. These rights are not protected under the copyright laws; rather, they are protected under state common law and state statutes. However, this introduces a completely separate field of law which is beyond the scope of this booklet. As might be expected, of course, the copyright owner's permission is necessary prior to publishing and distributing the work.

How about collages of portions of copyrighted publications or other works--is permission from the copyright owner of each work used necessary?

It depends on whether there is a copying and, if so, whether the copying is a fair use. Directly attaching clipped out portions of the copyrighted work is not copying, thus doing so is generally not considered a copyright violation. However, if a photograph or some other copy is made of the collage, then the question is whether this photograph is a fair use of the original works. If the collage is put on public display, it may constitute a violation of the exclusive right of the copyright owners in the individual collage works to publicly display their works. True, we have discussed an exception which states that the owner of a copy may publicly display that copy without the permission of the copyright owner. However, this exception only applies to authorized copies. Taking a photograph of a copyrighted work without the copyright owner's permission constitutes unauthorized copying.

How about old movie stills--is permission required from the copyright owner before copying stills and distributing these stills to the public?

This depends on whether the copyright in the old movie is still in force. If it is, permission is required. If not, then anyone is free to copy and distribute the stills, as they have entered the public domain. It is irrelevant that the work is being copied from one medium to another, or that only one frame is being copied. If the copy is recognizable as such and the copyright is still in force, doing so is an infringement.

How do you determine if a work is protected by copyright?

A proper copyright notice indicates that the work is protected by copyright. However, the term of copyright protection may have expired, or it may be invalid for some other reason. Therefore, a basic discussion of how the term of copyright is determined is provided in Appendix C. Nevertheless, even when a work does not contain a copyright notice, it may still be protected. This is particularly true if the work was created after the Berne Convention was implemented, in 1989. In this case, no copyright notice is required. However, if the work was created prior to the Berne Convention's implementation, it is more difficult to determine if copyright protection exists. This is because having no copyright notice usually, but not necessarily, means that the work is not protected. Under the old law, limited distribution of a work without notice did not extinguish copyright protection if sufficient efforts were made to correct the error on later copies.

If the copyright is registered, information about the work can be obtained for a fee from the U.S. Copyright Office. See Appendix B. One may even chose to have a search performed in the Copyright Office. However, the results will be inconclusive due to the fact that registration is not required for copyright protection to exist. In sum, it is usually difficult to determine with a high degree of certainty that a work is copyright protected without contacting the author or the copyright owner.

If a work is copied in reliance on the fact that an authorized copy does not have a copyright notice on it, then as an innocent infringer, the copier will not be liable for statutory or actual damages for the period of time before he received notice from the copyright owner that the work is protected by copyright. However, the innocent infringer must show that he was misled by the missing copyright notice. A court may, if it chooses, award the copyright owner the profits which the copier realized during the period of innocent infringement. Alternatively, the court may forbid further unauthorized copying, or may require the payment of a reasonable license fee.