What constitutes copyright infringement?

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What constitutes copyright infringement?

I recently screenprinted some t-shirts with a likeness to Andy Reid. The artist who created the artwork for our company used a cartoon that he found online and changed the image slightly along with completely changing the colors. A football was also added to the artwork. Parts of the image were used on the front of our shirts. There were no copyrights on any of the artwork. The artist is now claiming we owe him all of the proceeds from the sale of our shirts to him for infringing on his copyright, or he is going to sue us. It is my belief that since it was posted on the web, that this is public domain. Does the artist have a claim against our company?

Asked on May 3, 2013 under Business Law, Kansas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

1) Posting on the web does NOT put something in the public domain--in fact, the method of publication (e.g. on the web or in hard copy) has no bearing whatsoever on copyright and/or trademark. You have most likely violated or infringed the copyright of the rights holder (e.g. the creater) of the original cartoon: copyright gives the rights holder the exclusive right to control or bar adaptations or derivative works, so changing the image slightly, changing colors, or adding a football to the artwork does not let you escape copyright.

2) While you have most likely violated the original rights holder's rights, if the artist created the image for you, pursuant to some agreement to create artwork for you, you would not have violated his rights so long as you paid him whatever you were supposed to pay him for the artwork: work created pursuant to some agreement or contract (even an oral or verbal one) is, dependent on the exact circumstances, either a "work for hire" or a work where the artist agreed to assign (transfer) copyright to you--either way, if you paid for the artwork, then, from this artist's point of view, it's yours.

But as said, you probably still have violated the original rights holder's rights.


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