Percentage Rule - THE MYTH!
This is for US Law only - there is NOT a percentage rule that I have ever been able to find. I have heard so many different things about the "Law of 7 Changes," "10%," "Fair Use," "Parody," etc. They are myths in my opinion when it comes to how much you can change of something to make it your own. I have a statement that I use when I speak about these subjects. It comes from my parents: "If it looks like a duck, quacks like a duck, and waddles like a duck - IT'S A DUCK!" Now, without getting too deep - parody and fair use may be reasons to use the work, but you still would have difficulty in claiming it as your own
I learned last year that some foreign countries do have percentages or number of change rules. You are encouraged to check those out. However, in the US...to be safe...REMEMBER THE DUCK!
Kits - Parts or a Whole?
As a veteran of the craft industry (consumer that is!), kits are an integral part of the business. Whether it is Michael's or QVC, kits provide consumers a great opportunity to have everything at their fingertips to hopefully make a successful project! However, the question is: "Kit Designer's Components - Consumer's Assembly...Who Owns the Copyright?"
This is one of the "grey areas" of copyright law (and there are many). This is similar to a question that Collage Artists struggle with. The US Courts hold different opinions based on where you are in the country. There is no bright line answer. HOWEVER, remember our "DUCK?"
It is my opinion that the "DUCK" analogy applies here. A consumer may be using his or her own "creativity" to assemble the pieces of a kit. However, the components are the unique design of the Kit Creator. When one takes an original work and reworks the parts - it is usually referred to as a "Derivative Work."
Please read below to what the US Copyright Office states as a derivative work:
A “derivative work,” that is, a work that is based on (or derived from) one or
more already existing works, is copyrightable if it includes what the copyright
law calls an “original work of authorship.” (emphasis added by author)
To be copyrightable, a derivative work must be different enough from the
original to be regarded as a “new work” or must contain a substantial amount
of new material. Making minor changes or additions of little substance to a
preexisting work will not qualify the work as a new version for copyright purposes.
The new material must be original and copyrightable in itself. Titles,
short phrases, and format, for example, are not copyrightable.
I do not have a definitive "blanket" answer on whether or not a new work created from a kit rises to the level of an "original work of authorship." However, most works from kits are simple format changes of the existing pieces of the kit. The kit itself is generally a copyrightable work. Therefore, works based on that kit usually do not have significant changes to make the work "new."
Once again - back to our DUCK - if someone were to look at the card, picture, jewelry, etc...based on the kit - Whose work would the viewer see? Would the viewer see the Consumer's work (not counting the physical labor it took to put the design together) or the Kit Designer's work?
Here's a perfect example, if I were to purchase one of Brenda's Kits from QVC (and let's pick on Brenda since she suggested this topic) and used her paper, embellishments, and the like from the kit using only my own glue and say a few pictures of my dog...who owns the copyright then? Let's look at our analysis:
1) How much creativity did I use - did I use all her papers, create standard objects? Did I create a new card scultpure that would set the papercrafting world on fire? What did I create with the kit components?
2) When someone skilled in our art (aka another artist familiar with our industry) sees my cards, etc. - What do they see? Do they see only my creation or do they see I used Brenda's paper, embellishments and the like?
The above questions are those that one should ask along with a few others. It is my opinion that my hypothetical projects based on Brenda's kit, using the majority of Brenda's kit components would not rise to the level of an "original work of authorship." Remember, in the copyright world it is a GOOD thing to be called original - it is not someone just trying to be "nice" or tell you that your work "stinks!"
Collage Artists usually end up using lots of pieces and parts from lots of artists or works. That mixture usually allows a Collage Artist to rise to the level of an "original work of authorship." HOWEVER, it is a case by case basis.
The real question - "Do you feel lucky? Do ya?"
This blog reaffirms the fact that most of these situations are truly fact specific and individual in nature. It is why a continuing relationship with legal counsel is so important. One misstep could cost you dearly.
Please remember, this is not an easy subject and this is my opinion. I have actually had to argue both sides in court...The key is looking at all the facts. However, in the long run, remember the DUCK. Also remember, it is a jury that you would have to convince if the facts really were to come to it. The important goal is to keep you away from that situation. Don't forget the Golden Rule of Copyrights: "When In Doubt...Leave It Out!"
Have a great week! I hope to have the next blog on collections. I believe there are services that allow you to receive a notice when I post a new blog...or you can just come back and visit often!
Create with Your Heart and Your Head!
Tammy
