Creating my version of a book cover.
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When prepping a portfolio, is it a good or bad idea to include my own versions of art for existing books? I don't mean to re-create someone else's art, I mean "This is what I would do for this page of "Little Bear". I've heard you should only do this for books in the public domain, but that confuses me, so I decided to ask here.
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@luulusoul great question, I’d like an answer to this too.
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I’m curious too, I wanted to do some Harry Potter covers! I couldn’t find anything on the subject as far as putting it in your portfolio though
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I have seen book covers in portfolios. In fact, Anna Daviscourt, who teaches a SVS Learn class, has a Harry Potter cover in her portfolio. https://www.annadaviscourt.com/
I think it is fun to see a different take on a book cover. -
I think this could go either way. Maybe a comparison would be American idol contestants taking on Whitney Huston, or Aretha. If they don’t nail every little detail, they get so much flack for taking on something bigger than they can handle. I feel like if you don’t do better than the original, it could potentially affect your portfolio negatively. Just my thoughts though.
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@luulusoul Like so many things about intellectual property your question touches on a lot of issues, which all need to be considered at the same time. There is never a binary "safe" vs "unsafe".
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Copyright of text vs copyright of images.
The copyright of a text is distinctly different and separate from the copyright to the illustrations of that same text. So if you want to create a visual depiction of an unillustrated text (a text currently protected by copyright or in public domain) you are free to do so. -
Creating your version of characters that have been previously illustrated.
As long as your version of the characters look distinctly and uniquely different (and this is a subjective opinion) you are fine. When done properly you are leveraging point #1 above. But if someone looks at your drawing of the character and the original drawing of the character and hold the opinion that you either referenced or derived your version from the original drawing, then you are exposed to a claim of infringement.
2.b. You can ignore #2 above if the original drawings of the character are in the public domain. Both illustrations and texts in the public domain are free for anyone to use, modify, build on etc.
2.c. New drawings of public domain characters are protected by copyright.
Disney is the most prominent example of this. If you draw a version of the Little Mermaid that looks significantly similar (to the average viewer) to the Disney version you are exposed to a claim of infringement.-
Trademarked characters.
Trademark is different from copyright. Trademark has a lower bar for what is determined to be an infringement, but trademark also requires ongoing and active enforcement. Understanding the difference between the two can be useful. So for characters like Harry Potter, who is trademarked, ANY depiction of that character can exposed you to a claim of infringement. -
Technical Infringement vs Actionable Infringement.
This is important for the line-of-thinking: "I've seen other people doing it, so it must be safe". This also involved #3 above.
I feel comfortable saying that Anna's depiction of the Harry Potter characters are unique to her and distinctly different from other published depictions of the characters. (Specifically the Mary GrandPre interpretations of the characters here in the US) So my opinion is that Anna is fine from a "copyright" standpoint.
From a "trademark" standpoint my opinion is that she's on less firm ground.
Fun fact: Warner Bros owns the trademark on Harry Potter and not JK Rowling.
While my personal opinion is that Anna's illustrations may technically infringe of WB's HP trademark, I also believe Anna is unlikely to get a take down notice from Warner Bros. Anna is just using the images in her portfolio and is not actively "causing confusion in the marketplace" by making people think her depictions of HP are officially sanctioned versions of the WB intellectual property.
That's not to say she will never get some kind of legal action from WB, just that while her versions may fall under the legal definition of trademark infringement, my opinion is that they don't rise to the level of "actionable infringement".
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@davidhohn so if one was to state or label said illustrations on their site or portfolio would that make any difference? Saying basically they are not affiliated, images are their own, not being sold, things along those lines, but more official sounding of course. Or would that only draw attention and complicate it further?
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@Asyas_illos That's a good question. I'd ask that of an IP attorney, because I don't know.
As I think it through in my head I can see it going both ways.
That is, labeling as you describe, being seen as a good faith effort not to infringe on a copyright or trademark.But I can also see it being seen as a cheap and lazy way to try and avoid what is otherwise a "willful" infringement.
I tend to be cautious when it comes to infringements so I'd actively avoid something I knew was fundamentally unsafe, or get permission.
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@davidhohn and @luulusoul also I don’t know if you watched or listened, the guys did a podcast about putting fan art in your portfolio, I guess this could fall under that. I can’t remember much else about that episode but I’m going to look for it so I can rewatch. Found it around 33:00 mins in, they dont touch on the legalities of it, but some good perspectives on the subject.
https://www.svslearn.com/3pointperspectiveblog/3pp85 -
@Asyas_illos Great that you are making these kinds of connections!
Important to keep in mind that true "fan art" is always a technical infringement.
That is, it is an infringement (either copyright or trademark) but quite often the usage doesn't rise to an "actionable infringement", and indeed it might be considered a "tolerated infringement" by the original IP owner.
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@davidhohn @Asyas_illos Thank you both so much for your responses and information. This is clearing up a lot for me and is very helpful. I also did not realize a fanart episode existed, so I am very excited about listening to it!
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@davidhohn @Asyas_illos Thank you both so much for your responses and feedback! I am listening to the 3PP episode on fanart now, as I was curious about that also. The topic seems to be a grey area still, but thinking it through is much easier to navigate now. I really appreciate the information!
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Referenced by
Asyas_illos
