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Discover Mid-America — October 2007
When Is a Copy a Violation?
A reader recently emailed me
about his altercation with an eBay
seller who was claiming the right to reproduce antique advertising ephemera,
then assert for the reproductions some sort of "copy right"
that trumps any rights associated with the original. My reader tried to
explain that isn't how "copyright" works. But people who can
manage to rationalize intellectual property theft are pretty much impervious
to logical objection.
 |
| The
images of famous and long dead historical persons are considered
to be "in the public domain." As such, they are liberally
copied. These |
Clearly, one can't establish a copyright over Abraham Lincoln's
autograph. But the line is somehow easier to blur when the work being
copied is commercial in nature, with no specifically identified author
- as with
advertising ephemera. Yet copyright law protects even the latter from
intellectual theft. Most big companies have specifically trademarked their
advertising logos and slogans, so trying to adapt a clever pre-existing
advertising slogan for the trade can get you into trouble with folks who
have pretty deep pockets.
Plagiarism is the reproduction of someone else's words or ideas without
an attribution to the original author. It is sometimes forgotten that
word
for word quotes have to be in quotation marks and attributed to their
source. Lesser known is that even the paraphrase of someone else's
ideas have to be attributed and sourced. To use a metaphor perhaps more
familiar in the trade, we can think of copyright as a patent for word
and
thought.
In avoiding plagiarism, a fact is different from an idea about a fact.
An
interpretation of a fact may well be covered by copyright though the fact
itself is not.
What if I've been researching in a field for years, and somewhere along
the line I learn an interpretation of a fact but can't remember where
or
when? By this point in your life as a professional trader/dealer, you've
acquired a certain level of expertise that no longer reasonably requires
backtracking to find out where you first learned what you know. I would,
however, advise some "fact checking" about what one thinks one
knows. Having done this myself, I've often discovered that what I thought
I knew has been challenged by later and better information.
 |
| The
high price ($750-$1,000) on Lladro's "Charlie the Tramp"
is driven by the iconic nature of the Chaplin image and by the relative
scarcity of the |
In your advertising copy or internet auction description, you can use
some direct quotes from a published source - as long as you place quotation
marks around quoted material and as long as you attribute, to their proper
sources, both the quotes and the paraphrases of someone else's ideas.
Such limited reliance on other sources is called "fair use"
under U.S. copyright laws. But you can't claim the cut and paste of someone's
entire web page or the entire page of a book as fair use - nor should
it be necessary for you to do so if you know your own trade.
Intellectual property laws also cover names and images. This means you
can't legally use Charlie Brown to market your wares unless you've first
cleared it with the Charles Schulz estate, a process that usually involves
licensing fees. Nor is approval to use the image a foregone conclusion.
Whether ownership resides with a living person or with an estate, some
object to the use of their images for commercial purposes.
For a simple and comprehensive description of the law governing fair
use
of other people's intellectual property, see the aptly titled web site,
"Stop Fakes.Gov" (http://www.uspto.gov/smallbusiness/
copyrights/faq.html#top).
Since most famous individuals have formal and legally actionable rights to their own image, such images have another important impact, and often quite positive, on the trade, and that is in the area of collectible merchandise.
Charlie Chaplin is a good example. The "Little Tramp" persona
that
Chaplin developed is so iconic that merchandisers are easily tempted to
appropriate it for new products. The Chaplin image is protected by his
estate, however, and although the estate is fairly cooperative in granting
(for a fee, of course) the right to reproduce his image, the heirs do
not
look kindly upon unauthorized "borrowing."
The Spain-based Lladro company discovered this to its chagrin when it
produced, in 1984, an extremely Chaplinesque image with the English language
title "Charlie the Tramp." Reportedly, the Chaplin estate contacted
the Lladro company to say that, although they liked the work very much,
the
Spanish company would either have to pay for the rights to reproduce the
image or take it out of production. Lladro chose to take it out of production.
A similar case was reported in the September 2007 issue of The Collector
News of, in an article entitled "Enmeshed" by Donald-Brian
Johnson. That
case involved a series of enamel and mesh purses produced by the Whiting
&
Davis Company in 1976. Each purse in the series featured the portrait
of a
deceased celebrity - including Chaplin and Clark Gable, among others.
The
series had to be withdrawn from production because, according to Johnson,
"licensing rights had not been fully secured."
 |
| These Hagen-Renaker pottery bunnies are less than an inch high and wide, and fit easily into the compartment of an old printer's drawer that has been converted into a vertical wall display. The one on the right is in current production and, cute as it is, retails for only around two dollars. The one on the left is the Disney character, "Thumper." Conservatively, Thumper's value is $65-$95 to a collector, and some of the HR Disney models easily fetch three figures. (photo by the author from her own collection.) |
The relevance for dealers in antiques and high end collectibles is that
"unsecured" celebrity items by famous manufacturers have a relatively
short
retail shelf life, resulting in an inherently limited supply. This, combined
with the appeal of iconic celebrities, can easily drive demand to outstrip
supply. And that means some good opportunities for the trade.
Copyright, fair use, and intellectual property laws are a double-edged
sword for the antiques and collectibles trade, representing both danger
and
opportunity. Keep your wits about you and the popular image can make you
money; use such an image carelessly and you could find yourself on the
expensive end of a cease and desist order.
Peggy Whiteneck is a writer and collector living in East Randolph, VT. If you would like to suggest a topic she can address in her column, email her at allwrite@sover.net.
> Good Eye Archive — past columns
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