Advice needed for pose(c)/Trademark?

[cyiakanami.livejournal.com]

So I wanted to start off saying, I've seen some comments vary across the internet on pose copyright/trademark and usage and it seems a lot of people are confused about someone's rights ect. I am sort of in that latter. 

I went searching AB and google and couldn't find any good citations of legal standing on if poses and "image concepts" are legally bound as are say trademarked characters or artists legal rights to their art and came up dry on both. 
Long story short, I had a commissioner today note me on FA stating someone noticed the pose reference picture that we used on one of their commissions from me. Which would be fine by all means, except this person went on to state I was ripping their friend's art off and it was illegal to use their friends picture as a pose reference and concept for their commission and was pointing out that they would be infuriated if someone did that to them. (Commissioner feigned not knowing about anything on the reference for fear of a drama storm, which is fine by me. I also didn't reply to this person because I wanted to be 110% sure in what I tell them is backed up law and not also start unnecessary drama.) I've also added a link back to the original image we used for the commission pose reference in my fa gallery.

In short, my questions would be, is it ok to reference other artist's art for pose reference whether in personal art or commissioned art if the commissioner requests it? Should we link back to the picture(s) we referenced just the pose from? Are poses and or "concepts of the image" legal to use as reference or do we need to ask the artists permission first?

(Clarification of "concept of image" I'm speaking of would be, a person skate boarding, an android women kissing someone, two characters in a staring look, ect as a few examples off the top of my head right now.)

Thanks for your time.

*EDIT* I wanted to point out, that I think everyone has been looking at the wrong submission. I have an idea of which one you are looking at and have credited back to the original reference. And will be doing so from now on. I appreciate all the feed back and honestly had no idea had to reference back to what pictures I was using for poses. I shall do this from now on. I'll also be adding in my tos about commissioners and referencing poses ect. The submission I am talking about was done middle I think of last year so you would have to do some digging to find that one. And I've already referenced back to that pose on it. 
I would rather not post a link to the image in question in public for fear of naming my commissioner without their permission. If anyone would like to see the two images, please message me privately and I can link to them for you. Thanks again for your help!

Comments

[neolucky.livejournal.com]

I'll leave most of the educational comments to the other users, however! Here is some reading for you, both from AB:

http://artists-beware.livejournal.com/225557.html#comments

http://artists-beware.livejournal.com/530639.html

Can I see your art vs your references? I have a feeling perhaps you are confusing copying/tracing for referencing, and perhaps that could be where the core of your issues lay. I would like to compare and see how close of a 'reference' we're talking about, before I give any advice.

You cannot copyright a pose, or a concept, but if theres any tracing/copying to be had, then there will be a whole host of issues.

[neolucky.livejournal.com]

I am also confused - OP, you say in the image in question that the customer requested this pose/copy. And then when faced with the fact he asked for it, you say he feigned knowing about it?...I'm sorry, but that sounds like perhaps the customer feels guilty for asking.

In all reality, it's best NOT to copy images given to you by a customer, especially when being paid for an original image. What you did was not use the same "concept", you copied the base pose and expression down to the placement of limbs and general look. Referencing would have meant something vastly different.

The comment on your image is indeed correct, permission probably should have been asked for in this case, since you copied it for profit. Legal or not, this isn't ethically okay, or good business practice.

[sbneko.livejournal.com]

It's possible it was an accident. It's happened to me before, since I get anxious over negativity, that I let slip something wrong/not my actually thoughts, and in that case insulting to some people, just to sort of agree and get the person off my back. It was wrong, but something my nerves made me do withought fully thinking.

But hard to tell really.

[cyiakanami.livejournal.com]

It is alright if I message you the two image links? For sake of annom for my commissioner I don't want to post it and people identify the names ect.

[neolucky.livejournal.com]

Sure thing!

[lovelesskiax.livejournal.com]

The person is wrong, technically speaking. You cannot in any way hold possession over a pose.
However, I believe if you referenced, you should credit. You don't NEED to, but it's a good thing to do, ya know?

[sbneko.livejournal.com]

Went searching, if it's the correct image (since it's one with comments about the pose.

I don't know anything about what's legally right or wrong, but to be honest, with how closely that's referenced, it would have been better for you to link it in the description.

[neolucky.livejournal.com]

After seeing it, yes I agree. It's too close to be considered a reference. It's a very clearly eyeballed image.

[oceandezignz.livejournal.com]

Agreed (I too went sleuthing!). Comparing the two images its an obvious case of very heavy handed referencing; aka eyeballing. So to go without mentioning the original in some way, not quite cool.

[ansitru.livejournal.com]

I saw the image as well and I agree: there needs to be a link to the original image.
That's pretty much just eyeballed / copied, not just referenced.

[bostitch42.livejournal.com]

If you use a single image as a reference, and mention which image it is you used, you are in the clear. Not mentioning the referenced image could be considered plagiarism, but even that is up for debate, depending on how close a match your work is.

There is no such thing as pose copyright. Just like there is no copyright on colours.

[shukivengeance.livejournal.com]

"I've also added a link back to the original image we used for the commission pose reference in my fa gallery."
Unless we're talking about different submissions, I'm pretty sure I saw the image in question and I don't see any credit given in the description?

That said, as a client who commissions a lot of art, if I gave an artist a pose reference I would at the very least expect a different angle or perspective. Directly cloning the image would make me feel cheated.

Additionally, as the reference in question is a piece of art copyrighted to someone else and not stock art, I would feel it very important to seek permission from the original artist and/or make the piece as different as possible within the parameters of the concept. Otherwise, you're using someone else's hard work to cut corners and that's not kosher.

Legally, you're covered from it being copyright infringement as long as the image has at least 20% variation from the original afaik. However this is more of an ethical and professional issue in your particular market.

[cyiakanami.livejournal.com]

I think everyone found a different image in my gallery to which I also referenced a pose from and someone linked the original in the comments, which I can go fix that as well, but the sub I'm talking about is.. done from last year. And I don't want to out my commissioners name in this at the moment.

[shukivengeance.livejournal.com]

For the sake of clarity can you send the links to me privately?

[cyiakanami.livejournal.com]

Sure thing.

[dreamerdragoon.livejournal.com]

Ideas aren't copyrighted, but when ideas are rendered in tangible form, this is the basic point at which copyright protection kicks in.

1. 'Pose' concept = abstract = not copyright-protected
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2. Artist draws a character in a pose/photographer snaps someone in a pose = a tangible rendering of a concept = copyright-protected
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3. Another artist directly traces, copies or eyeballs an artist's/photographer's render of a pose = derivative work = potential violation of copyright

Coincidences happen, but for 3, if lines start to match up exactly and angle and perspective are exactly the same, and stylisations, particularly when referencing from drawn art, get copied over as well, then generally you've crossed the line from referencing to copying and you need permission. Someone above me mentioned percentages of variation, but I don't believe it's that clear cut. If someone were to take you to court, the burden of proof would be on you to prove your work is not derivative.



Proper referencing often means:
- looking at multiple sources to learn more about the subject matter you're drawing, OR
- if using one source, only learning from it rather than copying from it, OR
- if using a single source, you've taken the photo or drawn the image yourself, or at the very least have permission to "heavily reference" (which in most cases means eyeball/copy) directly from the image e.g. with free-use stock photos. There may still be conditions such as required credit and limitations of purpose/for-profit entailed in source images you don't own.

[taasla.livejournal.com]

Everyone has already covered points that I'd like to cover, so I'll say this: When clients give me a pose reference, I always make it clear that I will use it as a rough base. They will not get the same angle and exact same positioning. I will not copy it directly.

From the image in question, it is not illegal, no, but it isn't exactly kosher and honest to do so. A nice rule of thumb is asking yourself if you would like to have the same thing done to your art. :)

I would add the citation and then simply no longer copy poses directly.

[cyiakanami.livejournal.com]

Thank you! I'll be making a new clause in my TOS about this from now on to avoid situations such as these.

[funkicarus.livejournal.com]

whenever i'm in doubt in a scenario like this i'll just add a link in the image description that says 'pose reference' or something like that. it attributes credit to the artwork the pose was referenced from, which (stop me if i'm wrong) should put you in the clear, legally.

but i've never used another piece of art as a pose ref before, only photos, so maybe i'm totally wrong.

[nambroth.livejournal.com]

Since the legalities have been mentioned, let me add this:
Unless referencing the artworks of a master (or someone with a unique art handling that you can learn something from), such as making mastercopies for personal educational experience (etc), it's never all that great of an idea to directly reference other artist's work for stuff like this, even if you have permission.
The reason is that you are copying another person's interpretation of something, so in essence it is going through at least two 'human filters', which makes it overall less of your impression and more of a stack of impressions.

You copy not only the other person's artistic discoveries, but also their mistakes, and their intentional changes. I'm not even necessarily talking about style, here (though it comes into play), but how the other artist has, at the basic level, translated an idea or a reference into their art. Instead of another artist, it's generally best to reference life, then videos, then photos, as necessary.

Note: I want to be clear that I am talking about direct referencing only. Learning how someone else handles a painting or drawing, such as how they lay down brush strokes or use color is another matter entirely.

There are so many incredible, free to use (or at least Creative Commons) resources out there on the internet now that there is almost no excuse not to reference in this way. :) Arguably, artists have more materials that are okay to use at their fingertips now, than EVER before!

[ocelotish]

I would also point out that there may be exceptions where parody come into play. For example, if I'm parodying the lion king, I'm welcome to use the Rafiki pose to get that point across. I'm not allowed to do that exactly if I'm just trying to invoke dramatic young baby.

[nambroth.livejournal.com]

Oh-- yes, sorry! I had forgotten about parody.

[spiffystuff.livejournal.com]

Looking at the two pieces in question, I can see yours isn't traced. However it looks similar enough to me that I think it treads on "derivative work" territory. And I don't see how parody or transformativeness would apply to make this fair use (my mental rule-of-thumb for those is that this relies on knowing the original work to fully appreciate the derivative - because the derivative employs the material in a different manner than the original)

So, while poses aren't copyrightable etc, making essentially the same piece with a few minor changes is a violation of the referenced piece's copyright.

[spiffystuff.livejournal.com]

FWIW, the pieces I am looking at appear to not just be the same pose, but also the same expression, composition, and species/bodytype/coloration. The main difference is you had clearly redrawn the picture and removed the clothes, also a slightly different background. But it was way more than just the pose that was "referenced". It was a commission too. Unless you had permission from the original artist it looked pretty shady to me.

ETA - oo yeah now that I see the one in question, I was looking at a different one. The specific one you are talking about here I do think was more a reference than a copy - though like others have said it's always polite to link your major refs. As for the piece I was originally looking at, what I said still stands.

I do commend you for taking the initiative to ask about this and adjust your practices according to advice.

[crimson-flygon.livejournal.com]

There is no copyrighting a pose and they have no legal standing against you. Ethically it can be shady to reference someone else's work and not credit them.

[unclekage.livejournal.com]

You cannot trademark a pose unless there is something unique about it, and the pose is used to denote a product or service that is engaged in interstate commerce. In other words, If the pose were immediately to evoke the work of the person claiming the trademark (such as the odd broken-toe stance of Don Martin's characters in Mad Magazine) and to use such a pose would cause the average person to confuse your work with the original, then a trademark can be claimed.

Otherwise, you can claim bullshit.

-- Uncle Kage (who just renewed Anthrocon's servicemark and had to read up on all that stuff)

[neolucky.livejournal.com]

I don't think trademark applies in this circumstance? Correct me if I'm wrong here: Trademarks are reserved for names and iconography (i.e. logos) used in trade.

The image copied from is an illustration, not a trade logo or iconography. I think we are talking more about copyright in this instance.

[kayfox.livejournal.com]

From: http://en.wikipedia.org/wiki/Trademark

A trademark, trade mark, or trade-mark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others.

Trademarks also must be original, you cannot trademark something that is already in use, unless it has been exclusively used by you. The protection exists so that a particular product can be protected against counterfeits or other imposers. It also affords the owner some power over how their mark is used, but in practice there are defenses against using trademark law to regulate your mark's image to that level.

You could start exploring trademarks by reading this story of a bogus trademark claim: http://www.popehat.com/2013/02/06/the-popehat-signal-help-an-author-against-a-bogus-trademark-claim/

It all came about because of the transition from people trusting their local blacksmith, grocer or other tradesman and trusting brands, like Quaker Oats, Uncle Ben, Aunt Jemima, etc. This happened over a period of time starting in about 1890 and extending into the '40s. Naomi Klein's No Logo has a decent introduction to this transition, but many consider it to be a politically charged book.