[Woodcarver] copyright rules etc.

[Marcia Berkall]

1. A concept or idea is not copyrightable.  "Copyright protects 
'original works of authorship' that are fixed in a tangible form of 
expression. " (Ref: http://www.copyright.gov/circs/circ1.html#wci )

2. "A work that was 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 70 years after the author's 
death.  "  (Ref: http://www.copyright.gov/circs/circ1.html#hlc )

3 For items created prior to January 1, 1978, copyrights, through a 
series of legislations, were extended to last for a total of 95 years.

SO......the concept of Santa is not copyrightable...specific designs 
of Santa are.  I have never seen a Santa playing an African drum, or 
a violin, riding on a goose, carrying an elephant or dried flowers in 
a basket,  or tangled in lights.  They were not taken or in any way 
based on anyone else's designs..the Santas I carve are my own 
designs, totally.  There is a difference between using the "idea" or 
"concept" of Santa and copying a specific Santa design.  According to 
copyright law, then, I cannot stop anyone from carving a Santa 
playing an African Drum....that is just an idea.  However, I can take 
issue with someone copying my design for a Santa playing an African Drum.
If you really want to push the matter, you could say that every Santa 
that anyone carves, draws or in any way depicts, wearing a 
fur-trimmed red suit is based on the Thomas Nast rendition which has 
become a commonly accepted "concept" of Santa. However, since Thomas 
Nast died around 1902, then any copyrights attached to his renditions 
of Santa have expired.

The issue with copyright is a financial one, basically. The problem 
is with making financial gain from someone else's design...or selling 
it or derivatives of it.  I spend many hours, often months or even 
years pondering a design, sketching it, resketching it and working up 
final patterns.  Is it fair for someone else to use that design for 
their own benefit?  That is what copyright law is intended to protect.

Marcia (aka Mush)

At 12:05 AM 6/20/2008, Byron wrote:


>All laws are subject to interpretation by the courts.  That's the 

>way our constitution is written.   So no matter how any individual 

>interprets the statutes the courts have the final say.  We pay 

>lawyers to search court records to attempt to determine how an 

>individual case is likely to be interpreted.   In every case some 

>lawyers are right and some are wrong.

>

>Now what do you do about it?  How do you deal with possible 

>copyright infringement, that's up to each individual to decide.   As 

>for me, I do my own design with computer copies of the my sketches 

>so I have some proof that I created the design.  I also avoid 

>something looking like well known icons.   From that point on I take 

>my chances.   I think that's what most of us do.

>

>I wouldn't take a pattern from any publication or rough out, carve 

>it and attempt to sell that carving for several reasons.  The 

>biggest one is that somebody else is already doing that.

>

>As far as your works go, you didn't invent the characteristics that 

>make your carvings a Santa.  Therefore those characteristics were 

>copied from someplace, originally from somebody that had either a 

>registered copyright or an implied copyright.   That's why I say 

>from looking at carvings at shows, in publications, and the internet 

>almost all are copied from someplace.

>

>

>

>Byron Kinnaman

><mailto:abkinnaman at earthlink.net>abkinnaman at earthlink.net

>http://byronscabin.kinnamans.net/

>


See Marcia's wood carvings 
at: 

http://whittlinsnwood.com
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