[lsega77]

Hello all,

I was just wondering if some of you here could direct me to some information on copyright law as it pertains to our profession (specfically archviz but would like to hear from prodviz artist aswell).

I have a client who swears he own the copyright to work I produced for him even though he hasn't paid me in full yet.

Just want to know what my options are and what I need to ask an attorney if it goes that far.

It's my understanding that as the author of the work I am the sole copyright owner. Am I daft?

thanks in advance

Luis

[michaelplogue]

3dWorld Magazine had some articles in it a while back regarding various copyright issues. Unfortunately I've given them all away and can't seem to log into their site right now.

It usually depends on what is stiuplated in the contract. If I recall correctly (and please don't quote me on this as it's been a long time since I read the articles), the copyright for this sort of work generally goes to the client - since it's their design that is being rendered. You, as the artist, were only contracted to produce an image based on their design. If the work is 100 percent your design and work, then the copyright is automatically yours.

However, it all gets really sticky if the client does not pay for the work you have completed.

If you are in this sort of situation, you should definately seek the advice of a lawyer.

As I see it, you have a few options:

If the client has partially paid, you can provide him with an equivilant percentage of the completed work.

Or, you can refund what he paid, and not provide any of the work.

You can take him to court and sue him for the non-payment of completed work.

Keep in mind that different countries have different rules regarding copyrights and labor laws.

These sorts of issues should be specifically spelled out in whatever contracts you use with clients. For example, if you want to be able to use the images in your professional portfolio, this should be stipulated in the contract. It all depends on wht the client is willing to agree to. Clauses should also specify what would occur regarding non-payments (just as there should be for non-delivery of product).

As I said before, you should definatly seek the advice of a lawyer. I don't think you could win a case over the copyright issue, but you at least have a change of getting the money that's owed you - as long as you can back up your claim.

[lsega77]

Thanks Michael! So essentially what you're saying is that any work I'm commissioned/contracted for won't be my copyright unless I specifically state it in a contract that I reserve the rights to the image?

[michaelplogue]

That's pretty much the nuts and bolts of it - but again, I'm not a lawyer. This is only my interpretation of what I've seen.

I think in the Archvis business, you'll probably have a tough time "obtaining' the rights to the images you created. I think you will be lucky to be able to get the right to use the images in your portfolio.

You've probably noticed that a lot of folks on this forum will discuss various projects that they are working on, but state that they cannot post the image here. This would be because their contracts either forbid them from ever publishing them, or that they must wait until the product/building has been completed. This signifies that their contract has some sort of non-disclosure clause.

Now, if you are contracted to produce an original piece of work, you may have a much better chance of retaining the copyright. However, because this is "comissioned" work, you may have to yield the rights to the client - at their discression.

With the sort of work I do - which is purely artistic in nature and originating from my own twisted mind - the copyright automatically goes to me. Regarding the props, figures, and textures that I use, I have paid for the right to use them in commercial work as stipulated by the individual vendors. As long as my artwork is original, I can sell my piecesas I see fit. A couple of images I have done are psuedo-reproductions of another artist's work. In these cases, I have obtained their written permission to display these pieces in my gallery, under the stipulation that I will not sell them, and give full credit to the original artist.

[RonB]

Isega77,
You own the image you have produced unless your contract specificially states you grant the client all rights to the image. Unless you have a "work for hire contract" that image belongs to you. The copyright is automatic upon creation, just like an illustrator. Just as a photographer owns any photo they take and grants the client specific usage rights for whatever fee is agreed upon. Those usage rights are very definate. A friend of mine was contracted by an international hotel chain to shoot advertising pics for them and the chain used one of the shots for an ad campaign in Asia without his permission. He was awarded $25,000 for that use...and they paid. Remember, if you were hired by the client to create work for them and grant them all rights to the image, it needs to say so in the contract.

Also it might be worth while to get ahold of Lawyers for the Arts and talk to someone there. They are very helpful in matters like this. Google them...

Cheers, Ron

[ivox3]

As far as copyright law in America goes, ....Ron has summed it up in a nutshell.

So the question Luis is, .......did you have a contract ? if so, what did it state ? Was it just an agreement to perform work, but with no section covering copyright and usage rights ?

I'm going to guess that there was nothing mentioned about copyright/usage, because why would we be having this discussion ? If the client owned the rights, ....you would of known about it. I believe the client is mistaken and you still posess that copyright.

Now, the next question is : is it worth it to make a point in demonstrating that your right ? It's a small world and some things are just too small to bother with. Unless that image will be instrumental in helping to generate large revenues for a company, ....you'd probably be best taking the high road on this one.

Maybe my speculations we're all wrong though .....

[bathsheba]

Isega77,
You own the image you have produced unless your contract specificially states you grant the client all rights to the image.

That may not be true if your image is derived from materials, specifications, photos etc. belonging to the client.

Copyright covers derivative works, and if the images you have made are derived from their materials, you didn't acquire that part of the client's copyright because of working for them. They still own all the rights to their own IP, including whatever is derived from it, whether or not they pay you.

A friend of mine was contracted by an international hotel chain to shoot advertising pics for them and the chain used one of the shots for an ad campaign in Asia without his permission. He was awarded $25,000 for that use...and they paid.

But that's not the same: the case we're discussing would be if your friend took one of those images and sold it to someone completely different without the permission of the chain.

Also it might be worth while to get ahold of Lawyers for the Arts and talk to someone there. They are very helpful in matters like this. Google them...

That's probably good advice.

My advice: walk away from this one. But next gig, use a proper contract that specifies this stuff so this doesn't happen again. Pay a lawyer to write you a general one that you can adapt to specific jobs...Use a contract. It's as important as having safe sex.

-Sheba

[michaelplogue]

Well, there you have it. You've got two interpertations from oposite ends of the spectrum. That's why you definatly seek legal advice!


One thing to keep in mind is that the client holds the copyright to the design/concept of the item/building that you were contracted to render. It's their intellectual property. They could just as easily sue you for publishing images of their designs without their permission.


.

[michaelplogue]

Copyright covers derivative works, and if the images you have made are derived from their materials, you didn't acquire that part of the client's copyright because of working for them. They still own all the rights to their own IP, including whatever is derived from it, whether or not they pay you.

bathsheba beat me too it...
This would be the case for nearly all ArchVis work. The Architects own the design, so your image would be treated in the legal world as a derivative piece - hence the copyright would automatically fall to the client unless stipulated in the contract.

Use a contract. It's as important as having safe sex.

Wiser words were never spoken....

[ivox3]

They could just as easily sue you for publishing images of their designs without their permission.

That's true, but it wouldn't be for copyright infringement. It would have to be another category of law: fraud, theft ...etc.

Bathsheba wrote:
Copyright covers derivative works, and if the images you have made are derived from their materials, you didn't acquire that part of the client's copyright because of working for them. They still own all the rights to their own IP, including whatever is derived from it, whether or not they pay you.

That is not exactly what derivative means and is a little misleading.

This taken directly from the U.S. Copyright Office.


A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

[michaelplogue]

....or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

.... which would cover blueprints, sketches, 3d Models, etc. One, or all of these - I would assume - would have been provided by the client.

The rendering would have been derived from original works - ie blueprints - which were created by the architect.

.

[ivox3]

The copyright places the word derivative in quotations --- 'derivative' which gives title to a particular type of 'copyrightable' work. They are 'derivative' and are under copyright law , ......a protectable work.

This is counter to what Bathsheba is stating --- in that the original creator of the design or plan retains the copyright to the new work produced.

Unless contractually stated, .....that's not true. That's why we have copyright law in the first place, .....to protect against that.

The new work is a new work and it's protectable. Unless it a near/direct copy , but in CG it could easily be argued in court that the creation of materials and lighting setup indicate a sizeable creative endavour. These are some of the criteria that comprise what is a protectable work.

That copyright (if the new works fits all criteria for a 'derived' work, would rest with the new creator of that work.

This whole notion that because we've created works from intellectual property we've 'seen' or been privy to and that somehow makes our work uncopyrightable or under the copyright of the original creator of the work which is to be derived ...............totally BS.



I've been to court on this issue several occasions and the argument doesn't stand up.

[michaelplogue]

The "deriviative works" clause also protects the rights of the original "artist," not just the rights of the individual creating the derivative work. In this case, it would be the architects rights that are being protected.

Exerpts from the Copyright Office webpage:

http://www.copyright.gov/circs/circ14.html#derivative/


"The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright in that material."

One could argue that a rendering of a building - in it's entireity - could be considered all "new material," depending on the extent of work done by the "derivator." The following paragraph would strongly support this position:

"To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself."


However, you could also argue that the blueprints and overall design of the building would constitue "preexisting material." The individual contracted to produce the rendering would not have been able to do so without having some original works being provided by the client. (If it's for an ArchVis product, I suspect that the client provided extensive material in order for the rendering to be as realistic as possible)

"Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."

By contracting a third party to produce a rendering of a building, they have given them permission to reproduce that building as a "new version of that work." However, this permission does implicitly transfer the rights of the original "works" to the contracted party.


All right... I'm done for the night.

lsega77 - Go see a lawyer and ignore my ramblings. I think we all agree though, is you need to have a decent contract to cover these issues in the future. Don't leave anything to chance.

[ivox3]

All right... I'm done for the night.

Ditto

[lsega77]

Seriuosly! Thanks guys and galls! You've given me a lot to chew on.

In earnest I'm hoping what Ivox3 says is right because it would mean unless stipulated in a contract the client's who hire me could deny me the right to use the images I produce for them in my website, brochure etc etc. That would bite!

The gist of my situation, without naming names of course. The renderings were done for a friend of the architect who designed this house. This friend was starting a development of residences based on the design. He agreed verbally (I know I know) to pay me a certain amount and now when I submit my invoices they guy swears he never agreed to pay me that amount. He's using a website which I designed for him and all the graphics I created for his website. I went into his account, pulled off the site, he went back in to the account, locked me out and put his site back up from backup files he had. Personally I feel he's breaking the law and infringing upon my copyright as he hasn't paid for the work. By keeping his website up with the graphics I created, he's stealing a product.

I wish I could state his name so I could warn all of you to stay away from this a$$hole. Sometimes this business sucks.

Luis