Copyright Issues

Do I need copyright permission to make a stained glass panel from a copyrighted photograph?

If you look at the photo and your panel design and they are substantially the same, then yes, you should seek permission to use the copyright. 

The practical reality is that in all probability no one would ever make the connection for one copy, or even several. If pictures of your design were published in a prominent magazine, or you made thousands to distribute nationally you could have a liability. Aside from this practical reality, the right thing to do is seek permission.

Who owns the copyright, the artist, or the client who commissioned the work?

I'm not a lawyer, so my opinion is worth what you're paying for it. On one of the US Government websites, I think it was the IRS site under Small Business; I found a link to copyright law and read through it. US copyright law was updated a few years ago under the international General Agreement on Trade and Tariffs (GATT) agreements with other nations. I think a copyright is valid for the creator's life plus 70 years.

Anyone who creates an original work of art is the copyright owner of that work. There is no requirement that it must be registered, or even that it must be marked as copyrighted. A copyright is granted by the act of creation. If you publish your work, it is advised that it be marked with the word "copyright" or the copyright symbol to clarify your intention not to release it to the public domain. Otherwise, you are open to legal challenge. This part was confusing, but I think that it said you do not lose your copyright if the work is published and not marked, but that can be challenged in court, and you might spend a lot of money and lose. 

Copyright infringement has to meet a test of "substantially similar". Copying or making minor changes to another's work is an infringement of their copyright. "Substantially similar" is whatever the Court says it is, and lawyers charge $200 an hour or more to research case law and prepare your defense. 

As the owner of a copyright, you can sell the rights, sell restricted rights, or grant permission for the use of your work at no charge with or without any restrictions. Basically, when you own the rights, you can do whatever you want to do with them. Any agreement should be in writing. 

When you take a commission to design a work of art for a client, you do not automatically give up your copyright. Remember, he who creates is granted the copyright, not he who pays for a completed work. Even in the case that a client only buys a design, not a finished panel, the artist still owns the copyright. The transfer of a copyright must be part of the contract. This is a written agreement and is enforceable. If the client wants to ensure that no copy of his panel (or one that is "substantially similar") is ever reproduced, then he must purchase the copyright. What you charge for this depends upon how hungry you are at the time. 

It is in the artist's and client's best interest to discuss the copyright issue before a contract is signed. It is entirely proper, and I encourage you to clearly state your terms in negotiating a commission. I always clearly state that I retain the copyright on my work in my contract terms. 

The artist retains the copyright, even when multiple copies are being reproduced and sold. If you designed a killer sun catcher, posted it on the Internet, and gave everyone permission to make and sell as many copies as they wanted to, you would still own the copyright. In effect you would have made your design a "public domain" work, but legally, you have not. You could subsequently post a notice that permission to use the work was being withdrawn, or restricted in some fashion. Ultimately, the lawyers would sort it out, and only they would win. 

So think carefully about how you want to handle your copyrights. Generally, permission is granted for one-time personal use because there is no gain or loss to the artist. For commercial use, a fee-based restricted license should be considered. It is your creativity that someone else is selling. What is your creativity worth? Maybe that's not the right question, since many have inflated visions of their self-worth. The point is that your work has some fair value. You should consider asking for that in some humble fashion. Who knows, maybe the flattery of being asked is sufficient payment for one copy. 

And do respect the copyrights of others. Always seek permission to copy or use parts of another's work. 

What is “substantially similar” in copyright law?

"Substantially similar" is a gray area in the law. What constitutes "substantially similar"? Ask 3 people and you will get 3 different answers. This is where our judicial branch interprets the law. Over time a body of case law develops that effectively narrows the gray zone, but never eliminates it. So how do we deal with this, do the right thing, and hopefully stay out of trouble?

I use copyrighted photographs when I develop a pattern. Am I infringing on copyrights? I finally came to the conclusion that I am not infringing on the photographer's copyright. My final composition is substantially different from the original photo. 

We are not judges capable of interpreting the law. We are not trained in the legal profession, so we are unable to understand or argue the nuances of the law. We can only proceed with the application of COMMON SENSE. 

Now I know that common sense is a rare commodity these days, and Lord knows that our judicial system could use a dose of it, but it is the only guidance we have. 

Every word I have written here, and probably quite a few of the phrases, can be found in copyrighted literary works. Have I infringed the literary author's copyright? No. I am sure you would agree that I have not. This is an original composition, even if it does share common elements with other copyrighted works. So it is, with our stained glass compositions.

If I copied a passage out of a novel verbatim, and presented it as my own work, that would be a copyright infringement. If I changed the name of a character from Joe to Bill, that would still be an infringement. If my stained glass panel looked identical to a copyrighted photo, that would be an infringement of the photographer’s copyright. If I changed the black bear to brown that would be an infringement. But what if my brown bear looked similar to a black bear in a copyrighted photograph, but the rest of my composition had no similarity to the bear photo? 

My answer is that my composition is substantially different, and does not infringe the bear photographer's copyright. A lawyer may argue differently, but I don't think my composition would ever be recognized as an unauthorized copy of the bear photo. 

In a meadow, in a stream, or in the woods, a bear looks like a bear. The fact that I used a copyrighted photo to get the outline shape correct, and study the nuances of lighting and shadow on the muscular form, who would know? Who would ever make the connection? That, I think, is the common sense test of "substantially similar" or different. 

Near me is the Point Fermin Lighthouse. It is an historical landmark. It has a well-known shape and setting. It has been sketched, painted, and photographed by many artists for decades. All of the works are "substantially similar". They have to be, or it wouldn't be the Point Fermin Lighthouse. So, have all these artists infringed the original architectural rendering, or infringed earlier artist's copyrights? No, they have not. But why not, if they are all "substantially similar", you ask? The answer in 
this case is that while they all depict the same subject, they are different in the time of day, season, weather conditions, or aspect. 

The common sense approach is to use the photograph to accurately render the lighthouse and it’s setting, and then put your own interpretation on the light source, season, and weather conditions. This will make the design an original composition, although it may be quite similar to other works. 

As you see, there is quite a gray area, and no concrete answer to the question. I think the best we can do is to proceed with awareness, sensitivity, and respect for other artist's works, and use common sense in our own work. If your intention is to reproduce or copy an existing work of art, seek permission to do so. If your 
intention is to produce an original composition, even if it is an interpretation of another work and may bear similarities, apply enough of your own creativity that you are satisfied the design would be recognized by others as an original interpretation. There is no clear answer here. You will have to make your own judgment. 

Is rendering a copyrighted photograph into a stained glass panel enough of a change to avoid copyright infringement?

Rendering a photograph into a stained glass panel is analogous to reprinting in Spanish a novel originally published in English. Without permission from the author, the Spanish translation would be an infringement on the copyright. At least that is how I understand it. You must add your own interpretation to a subject to create an original work. 

There is nothing wrong with wanting to translate a painting or photograph into stained glass. It is a noble endeavor. But you need copyright permission of the original artist to do so. How would you feel if you saw an oil painting in a gallery that looked exactly like a stained glass panel you had designed and made for a client? Respect the creativity of other artists. Learn from them and use their work to stimulate your own creativity. 

If you want to reproduce their work, ask permission. It is not that difficult to do. But you also need to be sensitive to their concerns about your ability to do justice to their work. In some cases it would not be unreasonable for them to assert a right of refusal on the finished design. Artists are sensitive about their reputations, and rightly so. After all, it is the artist's reputation that establishes the current value of their work. It is their livelihood. 

We don't want our reputation damaged, and we don't want our work stolen. Neither do they. 

Do I have to register my work to have or own the copyright?

There is a US Government website that discusses copyright law. I don't remember the URL, but try "copyright" in a search engine and I am sure you can find it.

In days of old, there was a form to fill out and submit to register a copyright. Different nations had different laws and requirements. Copyright protection in one country, provided no protection in another. And the length of protection varied from country to country. Those days are gone. You may recall GATT’s in the news a decade or so ago. GATT’s is the General Agreement on Trade and Tariffs between nations of the world. The purpose of GATT’s was to promote world trade by aligning trade and commerce legislation between nations. 

GATT’s has brought about many changes, and there are as many opinions about whether those changes are helpful or damaging. 

In terms of copyrights, there is no more registration. The act of creation grants a copyright. In effect, everything is copyrighted at the moment it is first created. When it is made public no longer has meaning. But if it is not marked with the (c) symbol, or the word "copyright" when it is made public can lead to legal confusion on whether or not it was intentionally released by the author to the public domain for free use by others. Copyrights remain in effect from the moment of creation, through the creator’s lifetime, plus an additional 70 years after the creator has died. 

Always mark your original work with the word "copyright". Then there is no confusion, and you retain control over the use of your work. 

Locate that website and read about copyright law for yourself. Then you will know what it says and you won't be lead astray by any unintentional misinformation others or I may give you. Remember, we’re artists, not lawyers.