Hi charltonian,
"If I produce an animation that is directly produced from copyright
material, is that animation in breach of copyright law ...which when
finished would contain absolutely nothing from the source material,
but would obviously be instantly recognisable as being derived from
that material, would that animation be in breach of copyright law?"
I think it would be safe to assume that you would be creating a
"derivative work" (new version) and therefore you will need to obtain
permission or license to display or distribute copies of your
animation.
DERIVATIVE WORKS
"A 'derivative work,' that is, a work that is based on (or derived
from) one or more already existing works, is copyrightable if it
includes what the copyright law calls an 'original work of
authorship.' Derivative works, also known as 'new versions,' include
such works as translations, musical arrangements, dramatizations,
fictionalizations, art reproductions, and condensations. Any work in
which the editorial revisions, annotations, elaborations, or other
modifications represent, as a whole, an original work of authorship is
a 'derivative work' or 'new version.'
A typical example of a derivative work received for registration in
the Copyright Office is one that is primarily a new work but
incorporates some previously published material. This previously
published material makes the work a derivative work under the
copyright law."
Examples of Derivative Works
"Drawing (based on a photograph)"
WHO MAY PREPARE A DERIVATIVE WORK?
"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. The
owner is generally the author or someone who has obtained rights from
the author."
http://www.copyright.gov/circs/circ14.html#derivative
The exclusive rights of the copyright holder
Several exclusive rights typically attach to the holder of a copyright:
* to produce copies or reproductions of the work and to sell those
copies (including, typically, electronic copies)
* to import or export the work
* to create derivative works (adapt the work)
* to perform or display the work publicly
* to sell or assign these rights to others
The Berne Convention for the Protection of Literary and Artistic Works
of 1886 first established the recognition of copyrights between
sovereign nations (copyrights were also provided by the Universal
Copyright Convention of 1952, but that today this agreement is largely
only of historical interest). Under the Berne convention, copyrights
for creative works generally are not granted, but rather automatically
assumed; an author does not have to "register" or "apply for" a
copyright. As soon as a work is "fixed", that is, written or recorded
on some physical medium, its author is automatically entitled to all
exclusive rights to the work and any derivative works unless and until
the author explicitly disclaims them, or until the copyright expires."
http://en.wikipedia.org/wiki/Copyright
Following is an excellent article which may help to clarify the issue.
THE PROTECTION OF FICTIONAL CHARACTERS
IVAN HOFFMAN, B.A., J.D.
http://www.ivanhoffman.com/characters.html
Additional Links of Interest:
What Are Patents, Trademarks, Servicemarks, and Copyrights?
What Is a Copyright?
"Copyright is a form of protection provided to the authors of
?original works of authorship? including literary, dramatic, musical,
artistic, and certain other intellectual works, both published and
unpublished. The 1976 Copyright Act generally gives the owner of
copyright the exclusive right to reproduce the copyrighted work, to
prepare derivative works, to distribute copies or phonorecords of the
copyrighted work, to perform the copyrighted work publicly, or to
display the copyrighted work publicly."
http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm
WHAT IS A DERIVATIVE WORK?
"A derivative work is a work that is based on, or incorporates, one or
more already existing works. Examples of derivative works include
multi-media works using preexisting elements, screenplays adapted from
books, new musical arrangements, art reproductions or any other work
that modifies, is derived from or elaborates upon a preexisting work.
To be copyrightable in its own right, a derivative work must contain
enough elements of originality to qualify as as new work. Further, a
copyright holder in a derivative work will only obtain a copyright
interest in his original contribution, not the underlying, preexisting
elements.
It is extremely important to note that only the copyright owner of the
underlying work, or one who has been granted permission to do so, may
prepare derivative works. Unauthorized derivative works violate a
copyright holder's exclusive rights under the copyright act."
http://www.lawgirl.com/copyright.shtml#derivative
A copyright owner can stop someone else from (1) copying, (2)
distributing, (3) performing, or (4) displaying the characters without
the permission of the owner. The owner also can stop someone from (5)
creating "derivative works". A derivative work is a new work based on
someone else's intellectual property. A sequel to a movie, Rocky IX
for example, is a derivative work. Fan fiction stories may be
derivative works because they use the copyright protected characters
from someone else's creation. Now that many fan fiction authors
publish on the Internet, copyright holders can use search engines to
discover their characters being used in unauthorized or unapproved
ways. Many owners have tried to stop that use, and as a result, fan
fiction authors have received letters telling them to take their
stories off-line (cease and desist letters). Is fan fiction original
or is it just a form of copying? Copyright owners often ask why fan
fiction writers don't just come up with something original. Scholars,
however, have compared fan fiction's use of cultural figure to
previous literary use of myth."
http://www.chillingeffects.org/fanfic/
DERIVATIVE WORK: A "derivative work" is a work that is "based upon one
or more preexisting works." One of the Exclusive Rights of a Copyright
Owner is to make derivative works. The United States Copyright Act
gives many examples of what is a derivative work. One example is a
motion picture based upon a book. If you create a derivative work with
the Permission of the owner of the underlying work, you as the author
of the derivative work can obtain a copyright covering the original
material you contributed.
http://www.copyrightkids.org/definitions.html#derivativework
"The ?purpose? reflects why you want to use the work. If your use is
intended for your own commercial gain, it is less likely to fall under
the category of fair use. Free speech, for example, doesn?t
necessarily protect all parody from copyright infringement. When
?Weird Al? Yankovic parodies a popular song, he gets permission from
and pays royalties to the original artist.
The ?nature? of the work itself includes whether it is published or
unpublished and whether it is creative or fact-based. Under this
factor, unpublished and creative works tend to get more protection.
Even though facts cannot be copyrighted, it is easy for authors to go
beyond fair use by copying the way those facts are presented.
How much you use, and which parts, reflect the ?amount and
substantiality? factor of fair use. Normally, the less you use (such
as a quote from a movie in a review of that movie), the more likely
the use falls under the category of fair use. However, what was used
counts as much as how much was used. If you use the core of the work,
even a small amount of copying may violate fair use.
http://www.faegre.com/articles/article_463.aspx
I hope I've helped to clarify this complex issue for you. If you have
any questions, please post a clarification request and wait for me to
respond before closing/rating my answer.
Thank you,
hummer
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