Copyright and the use of reference
I have a copyright doubt that I mentioned already in the thread around the latest podcast episode about fan art, and I thought I start a thread for discussion around the use of reference. There are three different questions I'd like to shoot to the community which have direct implication for my work. I hope @davidhohn may tune in if possible.
- Come as it may, I seem to have found a (hopefully temporary) niche in creative non-fiction and find myself wrapped up in projects that require a great deal of research work around technology. Sometimes I even get references from the client about how a certain machine should look like. In one particular project I needed reference about the inside of a machine and had to source it from a Korean advertisement video - taking still frames of their animation of how the machine works. More than once I've been wondering if this use of reference is legal. There's no copying or tracing involved and a great deal of stylisation, but an expert would probably recognise the machine parts (which is the whole point of being so accurate);
- I use a lot of 3D software and 3D renders for reference. In many instances I sculpt the maquettes myself on my own designs - which obviously is no problem. In other cases, especially for interiors and oddly-shaped objects, I use 3D databases or kit-bashing (which is a modeller jargon for taking an existing model, breaking it apart and using the parts to build a new model). I've never downloaded a 3D model, rendered it and used it straight as reference - I think that would not be acceptable - but I wonder how much distance is distant enough. If I build an interior using pieces from many different sources, is the interior legitimaly my own creation? I always try to modify and stylize every object, sometimes using a combination of real objects and geometrical shapes to get to an entirely new shape....but still I wonder.
- And finally to the specific image that is worrying me right now. Here is the sketch from the book I'm working on right now:
And here is the 1952 TinTin image that inspired the composition:
And a couple of other images that use the same composition:
This is just a sample, there are literally hundreds out there. Because it
s so common place, I thought it would be ok, but now Im getting a bit concerned, as this is my first trade book and I really don't want to put myself in an awkward position. The sketches have already been approved, though, so I'm not sure whether I should just relax or is worth the embarrassment of getting back to the AD.
I know for sure composition is totally OK to use and copy without any restrictions. Also so is the use of someone else's colour and light.
It is a hard question, but I dont see a problem ,just think were did The 1952 Tin tin ref originally get his ref from, a real spaceship I would imagine as they did not have google back then.I think the spaceship image is a classic after all how else could it be done.
I had a real thing before I came to SVS about never using any online refs I was so afraid of getting into trouble,I am just starting to expand and cautiously look at refs for inspiration. I do of course need refs and like yourself used 3D models, but I did not understand why you do not buy models and use them that is want they are sold for it is not a copyright problem.What really annoys me is so many people just take photographers work and paint over it and then everyone thinks it is brilliant.Anyway sorry for the rant I have been thinking a lot about this recently and sort of getting annoyed.
@dottyp I mostly use SketchUp 3D Warehouse, where models are not on sale. A vast majority of Sketchup models are made available by corporations (Ikea, for example, has it whole catalogue there as models) for use by architects in 3D renders, another big chunk seems to be done by the community under an umbrella CC license. Because SketchUp is free and was originally linked to Google Earth the amount of models available is staggering. Others sources I use are PixelSquid, TurboSquid and SketchFab (which is also mostly under a CC license), but I use these very rarely, also because I’m most concerned with copyright here.
There’s nothing wrong with copying a reference exactly as long as you’re doing it for training or for your own satisfaction. Yes, it is a copyright infringement, but it´s a „technical“ one, as was mentioned in the other thread, not one that would ever cause problems.
When you’re doing professional work or selling prints or anything that involves money, then you have to be very careful with how you use references.
As for the TinTin image - I don’t know how Herge worked. It may well have imagined it from his own mind.
@smceccarelli Hi Simona I have not used Sketchup I dont seem to get on well with it ,Yes you are right you have to be really careful with the free models and copyright issues. What I meant was it would be quicker for you to use Daz studio 3D ready made 3D models any 2D work you make with them is copyrighted to you,but you need a licence for use in games. In this way you generate your own references quickly and cannot get into problems copyright. I started doing this because I was very concerned with copyrights.
It is strange how the Tin Tin model looks exactly like pictures of todays technology, Life imitating art! He must have been very clever, someone told me Herge was a engineer (I am not sure if this is true) Anyway i think you are worrying unnecessarily good luck.
Apparently Henge was not an engineer he was a news reporter I dont know why I believe everything I am told before I check it out
A topic totally worth discussing!
I've said before that I'm not an IP attorney, just an illustrator who is quite interested in this topic. Please consult www.vlaa.org (your state or city likely has a local set of participating firms) for specific questions.
It's much easier when looking at actual images rather than talking about the theory. That's because copyright infringement is by it's nature a subjective judgement. One the major factor is: Substantial Similarity. That means, would the average person look at the two image and conclude that one was copied from another. Regardless of changes that might have been made between the two. If yes, then that would weigh a judgment toward declaring an infringement. BUT you also have to weigh that against (and I don't know the legal term for this) how common the image is.
So looking at @smceccarelli rocket illustration and comparing it to the TinTin image (#1) the first thing I do is overlay the images (#2) (I should note that I rotated the images to line them up. In these days of photoshop rotating, flipping, or even scaling images is so easy as to not be considered changes that would reduce infringement liability) And while the general composition (rocket half on planet half in space, pointed to upper right) are admittedly similar the design of the two rockets are quite different. My opinion is that there is not infringement in the rockets.
Then we have to look at the similar composition. A quick google search #3 (and this is just a small sampling that I included on this page, many more were available) reveals that "rocket half on planet half in space, pointed to upper right" is extremely common so as not to be unique to the TinTin image.
My personal opinion is that this is not a copyright infringement.
By contrast, in my research I came across these to images:
In doing the overlay test I found what I feel is substantial similarity between these two images. The stock photo 3D model image is clearly based on the original TinTin image and is what is called a "derivative work". In US Copyright law https://www.copyright.gov/title17/ it clearly states that derivatives are an aspect of copyright controlled by the copyright owner. In my opinion the stock photo is an actionable infringement.
@davidhohn Fantastic advice really informative
@davidhohn Wonderful and thorough advice, thank you so much for taking the time to explain it so clearly! I know you’re not an IP lawyer, but I feel much more at ease nonetheless.
Yes, there are tons of derivative products based on Herge`s rocket design - it´s very iconic. I was never sure which one was controlled by the TinTin franchise and which wasn’t....but my gut feeling was that the composition was so common as to not be an object of IP, and I’m very glad you think the same...