Like, I was at a party and, uh, a friend of mine – a COP – looked at that copyright violation letter, and HE PUKED. And he said, uh, you guys can use the album cover or, uh, he’ll press charges.

I call BS. Remember, they can *claim* anything they want, but that doesn’t automatically make it so.

Yes, it resembles the painting, but it’s also been changed considerably from the original work. In fact, everything is different- the colors, the eyebrows, the tears, the hair, the lips, the shading…the *pose* is the same, and that’s about it. Roy has no copyright on two people holding each other. I bet you could find that pose in a thousand comic books in a thousand variations.

By Ms Lee’s definition, if I was to hold my wife like that and take a picture, I’d be in “violation”. And that’s baloney. I’d say, “See you in court” and see just how many millions of dollars they’re willing to spend to try and stop this “similar but not the same” bit of artwork.

I would contact Ms. Lee and quite politely inform her that she is mistaken and that the source material is the original comic work. Your cover is closer to the original than it is to the Lichtenstein (hair color, shading, etc). She likely sent out the letter reflexively. I wouldn’t presume she’s immune to reason.

She doesn’t stand a chance. All she’d be doing is wasting her client’s money if she pursued damages in this, as you’re clearly in the right.

FWIW, I’m not a copyright lawyer, but I *am* the Copyright Officer for our school district, so I have had some training in the area. The court would only have to take one look at the original and you’d be scott free- but make sure you inform them ahead of time you’ll be seeking costs, plus compensation for slander.

This threat probably breaks any anti-SLAPP legislation your state has in place, as well.

Ms. Lee doesn’t have a leg to stand on and backing down is the wrong thing to do. We can’t let content owners intimidate everyone willy nilly. That’s why we have a court of law, although I doubt this case would ever get that far. If so I hope the internet comes to your aid.

The copy-terror society we live in shames me every day. You should be afforded the same freedoms Lichtenstein had when he COPIED another artists work.

http://www.boston.com/news/globe/living/articles/2006/10/18/lichtenstein_creator_or_copycat/

Letting them push you around with legal threats only emboldens them and makes it worse for the whole world.

the lawyer is trolling for fear. don’t bite. man up and move forward. i like chemicals. good luck with the album!

I am an attorney, but I do not practice copyright law. I have, however, taken a couple of copyright classes in law school.

My take on it is that if the orignal work was in the public domain [e.g. the copyright expired], then anybody could freely copy the original work, including Lichtenstein and your artist. The new works would not be copyrightable as they would be derivative works of the original. That means if anybody appropriated your alblum cover, you couldn’t claim copyright infringement just like Lichtenstein likely is in the wrong for doing the same.

My guess is that you have a strong defense to any lawsuit. You should call the EFF and see if they could help you.

I’ve whipped up a quick graphical comparison of the art at http://cleverruse.com/2010/05/06/appropriated-art/, it’s completely obvious the source was the original comic, not Litchenstein’s version, but that doesn’t mean they can’t attempt to take legal action.

Don’t back down. The letter is a tactic used to minimize copyright infringement, and since sending a letter entails no cost to the sender it is a cheap way to frighten the uninformed. If it were a serious case, the letter would have been a cease and desist letter. The fact that it wasn’t is significant.

Don’t back down. If you respond (at all) have a lawyer send a strongly worded response outlining how weak their case is.

Odds are very good that the underlying image (original graphic novel) is in the public domain. Check the title and date of publication. If it was a) originally never registered, or b) registered with a faulty notice, or c) never renewed after 28 years (if originally published before 1964), then it is public domain. You have two different places to check in the copyright registration books, the original year of publication, and 28 years after that. Most large city libraries should have copies of the copyright registration books. If not, you might have to go to Washington, or, pay a proessional to research this for you.

My feeling is that they can’t touch you. They got nothin’.

DECONSTRUCTING ROY LICHTENSTEIN © 2000 DAVID BARSALOU MFA
http://www.flickr.com/photos/deconstructing-roy-lichtenstein/
http://www.flickr.com/photos/deconstructing-roy-lichtenstein/114289996/

The answer is this.

He can only claim copyright to his interpretation of the artwork. The image has a lapsed copyright which would place it in the public domain which means that you could use the exact source image for your cover if you wanted. Your friend who painted the picture maintains copyright on her work only. However anyone could copy the source image.

The case for copyright in either of the pieces of art is weak because neither of the pieces of work are transformative enough, or add enough to the piece to be considered a separate work.

All this said your artist copied a public domain image. There is no basis for a claim of copyright on a minimally changed image of a public domain image. See the ruling in the following link

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

Some information for your defense
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html
http://en.wikipedia.org/wiki/Fair_use
http://www.artsandbusinessphila.org/pvla/documents/TransformativeWorks.pdf

Although only a law student and not a copyright lawyer — and this is definitely not legal advice — I’m going to disagree with Christine Valada here.

The issue of whether Lichtenstein’s works infringed on the original comic copyright is irrelevant here. If you were the holder of the copyright in the original comic and wanted to sue Lichtenstein, it might matter… but you’re not. Sure, you might try to use this as leverage, but if nobody has sued Lichtensteing yet, they’re probably not going to, and the statute of limitations has probably tolled, anyway.

The real question is whether Lichtenstein could copyright his painting, and what he can claim copyright to. I suspect he probably has a very good argument that his selection of the panel, as well as any cropping, are original contributions to his painting, and that they are copyrightable elements. This is especially the case since I imagine comic books are usually registered with the copyright office as a whole, and that individual panels are not registered and are not considered to be individual works. If his editorial selection is considered original enough to allow protection (and the standard for originality is quite low), then Lichtenstein has a pretty darn good case for copyrighting his choice of selection.

Then the question becomes one of whether you are infringing. You’ve written enough about this on the web, I think, for it to be indisputable that the artist was familiar with Lichtenstein, and that she had access to the Lichtenstein in question. This will make it very difficult to argue that her painting was a totally independent creation (independent in the sense that she independently came to make the painting solely by means of her own inspiration and comic book knowledge). This should be enough to satisfy the “copying in fact” element of infringement.

The second element of infringement is “substantial similarity,” which is usually determined by the jury. Basically, it asks whether a reasonable person will think the two works look similar, and give the same impression. Even if a jury is directed only to look at the independently copyrightable aspects of the Lichtenstein in comparison to your painting (such as then angle, the changes he made to the inking, etc.), I suspect most jurors will find that the cropping of your painting is substantially similar to his, and that your painting infringes.

Also, the belief that this solely centers on whether the original comic art is under copyright is totally erroneous (especially since you don’t seem to be being sued by the holder of that copyright): Lichtenstein can still have copyright over his contributions to his painting, even if the original image is out of copyright (just like I can paint a copy of The Last Supper and still have copyright over my version, even though the original is out of copyright).

And just to add to my previous post: yours is the kind of argument a lot of folks would get behind. As in: reach out to Stanford law school or EFF.

It’s like this, only without fabricated evidence:
http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster

Further supporting that Brittany’s painting is fair use: I hadn’t read the clear parody language below (“Oh Charles, I thought you’d be gay forever!”) The copyright killer question would be, if the original is still under copyright and not in the public domain: does the fact that you’ve changed a fair-use-parody work to where it more closely resembles the original take it out of the class of parody?

You probably have this info by now, but just in case it hasn’t gotten to you yet, I strongly suggest you contact the Electronic Frontier Foundation (EFF) for support and guidance. While many of us can offer emotional support and advice, these are the folks with the actual know-how. Their website is: http://www.eff.org/