Can I draw a realistic image of a boat, car, plane, or other item that
can be seen in a public place and then sell it (without permission) on
a poster, t-shirt, or other novelty item?  Are there any limitations? 
How about vintage and antique models?  Please give reference.

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Request for Question Clarification by hedgie-ga on 14 Apr 2006 23:18 PDT

Different jurisdictions have different laws and different interpretations
of the laws, so you would have to tell us where you are.

Here is just an example of that:

"The court defined an original work as one that is the product of an
author's exercise of skill and judgment. The court further stated that
the exercise of skill and judgment that is required to produce the
work must not be so trivial that it could be characterized as a purely
mechanical exercise. The court both rejected the "sweat of the brow"
test of originality which had been enunciated in some prior Canadian
cases and also, surprisingly, also rejected the US Supreme Court Feist
creativity test. The court said that for a work to have copyright in
Canada it was only necessary for it to be the product of "skill and
judgment". Creativity, even "a minimal degree of creativity", was not
required."

While you cannot get a legal advice hear, you can get few references to the
references and past interpretations. However, you should provide specifics,
or aspect, such as international conventions and rules, 
http://www.wipo.int/portal/index.html.en
US vs EU 
http://www.theregister.co.uk/2004/03/24/windows_ruling_is_biggest_ip/
etc

etc

If your "realistic image" resembles something that is protected by a
trademark, you may be in for a legal battle.

copyrights are to protect 'an item' original works are by default
copyright of the maker.

So if you draw something, you have the copyright to that work.

That is why computer copyrights are stupid, because they 'redraw' the
information, or remake it.

The idea is reduced from 'the work' to 'the idea' is this an original
peice of work. Then duplication of that peice of work, would be
infringement, in part or in whole.

Recreation, or rather a new creation would be OK.

Copyright is stupid regardless as well as patents. Trademarks and
Tradenames make a little more sense.

If you 'create it' then it is not copyright infringement.

If you 'copy it' it is.

The catch being the chance of duplication by creation, that is you by
chance make the exact same thing as someone else, in that case the
first person would hold the copyright precedence.

It is stupid though. If you are drawing something in the world it is
creation, NOT duplication. IMO

http://www.law.cornell.edu/treaties/berne/overview.html


All in all it would be up to the judge.

Generally trademarks violations ect.. are for 'companiess' and'businesses'

It is not copyright infringement because it is your work. It may be
trademark infringement; check beforehand to make sure that your
depiction does not resemble a held trademark. Otherwise, you're in the
clear.

Please note, postings here are not legal or professional advice.   See
the disclaimer below.

Understood - Not legal advice.  I was hoping to get some reference
material to read that would help me to decide whether or not to invest
$$ in legal advice.  I couldn't find anything at copyright or USPTO
that speaks directly to drawings.

At USPTO, I find words and names in stylized form as trademarks so I
assume I can't show them.  I haven't seen the actual image of an
automobile in a trademark record though so I suppose thats ok.

I'd like to read an article or two that discusses this area then
decide about seeing the attorney.

Jeff

Jeff

Copyright protects the creative (but not functional) aspects of any
design in any fixed form.  This would include the design of a car,
boat, plane, or other vehicle.  It does not matter whether or not it
is seen in a public place, or even whether or not you can buy your own
copy.  After all, you can buy a CD of a song, but you can't sell a
copy of it (though you can sell the original that you bought). 
Likewise, you can buy a car and then sell it, but you cannot sell
pictures of a car without opening yourself up to liability under the
law.

That said, the risk that Ford, GM, Honda, Toyota, Boeing, Airbus,
SkiDoo, etc will send you a nastygram may or may not be real.  Even if
the company that owned the copyright of the design wanted you to stop,
it is likely they would send you a "cease and desist" letter first,
without seeking you to disgorge your profits from the copies (on
clothing or artwork) that you already sold.

Legal defenses might include:

* "di minimis" use, where the vehicle just happened to be in the
artwork, but was not an important part of it;

* substantial similarity to anotehr design that the owner does not own
(for example, I cannot distinguish the Jaguar from the Hyundi at a
distance)

* "fair use" which is really four factors put together
 - purpose and character of the use, including whether it is commercial in nature,
 - nature of the copyrighted work
 - amount (how much) and substantiality (how good) of the copied
material in relation to the copyrighted work as a whole
 - effect of the use on the potential market for the copyrighted work.

Another consideration is the "transformative" nature of the work. A
drawing, by nature, transforms the work through your own effort.

A picture of a car is _not_ a copy of the car itself. It does not
function! Taking a photograph of a car is not copyright infringement!

Here is a website that specifically adresses issues of copyright in
the visual arts:
http://www.piercelaw.edu/tfield/copyVis.htm

It states that:

"Utilitarian, Three-Dimensional Works are Excluded. While a drawing of
a toaster is copyrightable -- even engineering drawings of such things
-- in the U.S., such works are protected by design patents.

To the extent that they have components serving no end other than
aesthetics, copyright protection is available for those components.
Thus, while copyright protection would be refused for most table or
floor lamps, the fact that a piece of sculpture had been turned into a
lamp would not negate the protection otherwise appropriate for
free-standing sculpture.

Things such as vases, urns and piggy banks may or may not qualify; one
way to find out is to attempt to register them. If the Copyright
Office accepts the registration, court are likely to go along. If
copyright registration is denied, design patent protection may be
available, but that is substantially more expensive."

And no.. I have not violated copyright by quoting their words-- it is a fair use!

~info_ga-ga