What about copyrights? by Gary Cole

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So many times we receive the question concerning copyrights so I am going to try to give some information on this topic. First and foremost I'll tell you right off that I am NOT an attorney and I make no claim to be an expert on the law. On top of that, laws are different on this issue depending on your particular product and region of the world in which you live. If you want to be perfectly safe I suggest you contact a copyright attorney for legal advise.

I borrowed from Larry Moss of the Balloon HQ archive (see http://www.balloonhq.com) some text of legal copy. I suggest you read through it before you hear my 2 cents worth.

quote:

"Here's the official rules from the US copyright office.  I don't know how close this comes to copyright protection in other countries.  Also keep in mind that there's a trademark issue involved here.

Works Originally Created On or After January 1, 1978

A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 50 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 50 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 75 years from publication or 100 years from creation, whichever is shorter.

Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date

These works have been automatically brought under the statute and are now given Federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-50 or 75/100-year terms will apply to them as well.  The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2027.

Works Originally Created and Published or Registered Before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the date a work was published or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The current copyright law has extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, making these works eligible for a total term of protection of 75 years.

Public Law 102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to extend automatically the term of copyrights secured between January 1, 1964, and December 31, 1977, to the further term of 47 years. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office."

end of quotation from Larry Moss

Now as I see all the legal copy above (here again this is my opinion) I see the issue concerning copyrights and trademarks, it refers to tangible property or some "thing" that is exchanged. When you as a face painter create a design on someone's face (or arm for that matters) it is not a "thing" that is either transferable (resaleable) or permanent. In most cases it is going to be washed off in a number of hours.

I don't think you will find a problem even if you do copy a design unless you are on their doorstep. I have never heard of any face painter having a problem. I think you might start stepping on toes if for example you start painting Mickey on the sidewalk outside Disneyland. In most cases the worst thing that will happen is they ask you to cease and desist (stop or I'm going to send a fleet of lawyers to your home address).

Where you are going to end up in trouble is when you publish in printed form your faces. For example if we were going to put into the next SNAZAROO face painting book an exact duplicate of Spiderman you better believe that we would want to have written permission to whomever held the rights to these Marvel Comic characters. It would be a documented, resaleable, tangible item and they would have full rights to come after us.

Again... If you are faint of heart, then as a face painter, and if you want to be real safe, just don't have copyrighted images in your face painting work book or face painting board. I've painted my share of Tweety Birds on cheeks but I don't even have a picture of him posted anywhere. I just know how to paint this character and simply try to meet the request of a child. I'm obviously not promoting this character. If you have a particular photo that might even be close to a registered character, then I suggest you might have an alternate name posted.

Personally, I paint a lot of requested boys favorites from well known super heroes and villains and I have never heard even a whimper from anyone.

SNAZAROO USA Inc. for years has offered a sports paint product where a store or consumer can buy the two or three team colors of their choice. We have showed these products at national tradeshows where you find loads of licensed products from the NFL, to Nike to Disney. The header card on this particular unit is a generic format just showing three guys painted in different colors. The NFL or the Dallas Cowboys could care less that we are selling a pack of face paints with the Dallas Cowboys team colors as long as we do on sell it as a licensed NFL or official Dallas Cowboys product. You certainly will not see an attached logo or even reference to either. Now if we sold it with even a reference to the league or team they would have a problem. NFL representatives came by our trade show booth and we even had our faces painted with the an official NFL team's logo and colors. They said outright, they had no problem, because we were not selling a tangible resellable product that was licensed.

Yes, right now you will find some photos on the web pages or even in my personal face painting book that you might feel are authentic like. None of these are for sell as a tangible item. No one, no agency, no attorney has even mentioned any concern, so for now I leave them as is. If for some reason I get a call then I would promptly remove them. As I am understanding the law, I am in compliance with the law as long as I am not selling a tangible copyrighted or trade marked image. You do what you feel is right and legal. There are not real clear lines drawn in the sand. If you are real concerned, then again, I would suggest you eliminate the painting of all questionable items or go and contact a copyright and trademark attorney for further legal advise.

I'm open to hear your point on the issue and if there are any people out there in this particular field, I'd be very happy to post what you have to say concerning face painting copyrighted or trademarked characters.

For more related information check out http://www.balloonhq.com/faq/twister_business.html#copyright  This is on the Balloon HQ site (an excellent resource for ballooners). Most of the information applies to the art of ballooning but there are specifics as well as related material that applies to face painting.

Gary Cole


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