Sunday, 8 March 2015

Face Painting: Copyright Explained

"Can I still paint Spider-Man?"
All you wanted to know about Face Painting and Copyright
but were too afraid to ask.

Face painting is often tied to what ever is popular with children. Movies, video games, books, you name it. I've painted Harry Potter scars, Minions, Mine Craft Creepers, Super Mario, and all the Superhero's (accept Aqua Man... no one choose's Aqua Man lol).

It gets to the point where you think "I know it's just face painting but, I'm actually making money off of this. As an artist I wouldn't want some one copying my hard work and creativity and selling it, that's a kin to theft. Is what I'm doing... wrong? Or worse yet, can I be sued?!?!"

To start, different countries have different laws regarding copy right (*cough* China *cough*) but there is a basic international copy right law. Check your country to see if your country has different versions of copyright law.

What is Copyright?:
Wikipedia Says:
"Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator (e.g. the photographer of a photograph or the author of a book) to receive compensation for their intellectual effort. The exclusive rights are however not absolute, and do not give the creator total control of their works because they are limited by limitations and exceptions to copyright law. 
Copyright is a form of intellectual property, applicable to any expressed representation of a creative work. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rightsholders.[1]These rights frequently include reproduction, control over derivative works, distribution, public performance, and "moral rights" such as attribution."
Yeah I know I'm lazy; but i cited my source so it's not plagiarism. Inronic that I choose to do that in an article about copyright though lol.

Moving right along......

Can I Still Use Spider-Man?:
If you dressed up as spider-man and entertained at your kids party, it's not copyright infringement. If you made a website and advertised that you dress up as spider-man and will entertain at other people's parties if they pay you - there's a problem.


Some times a big problem.

Spider-man is owned by Marvel (which is owned by Disney). They have their own costumed people at Disneyland that they want you to buy tickets to get into the park, to see. Also how do they know you don't get drunk while wearing your spider-man suit and face plant into the birthday cake while attempting to web-swing from the birthday decorations? Congrats you just scarred those kids against spider-man for life (or made him even better), and now Disney is mad at you for ruining their characters reputation (or making it better?).

Usually party business's that advertise costumed characters for events, can get around this by simply not using 'brand names'. So instead of calling their character 'Elsa' they call her 'The Snow Queen', and instead of 'Spider-Man' they call him 'Spider-Guy'. Unfortunately the 'likeness' of that character (ie: image) is still owned by Marvel (which is owned by Disney). This is where a grey area emerges, and some times has to be argued in court how different the character really is. Through usually these companies usually care more about you using the name then the image, but it's still a risk they could sue you (and they have money money so they win ).


But, Can I Still FACE PAINT Spider-Man?:
Good question. As luck would have it face painting is a little different! You see, if you paint a spider-man face, take a photo, then put it on your website and label it 'spider-man' you are infringing on the copyright. However, if you paint that same design at a birthday party, or a farmers market, or are otherwise getting paid to paint it. It's not an infringement!

Here's why:
If you painted a picture of spider-man on canvas and sold it, it's totally legal! Artists are allowed to produce 'original' creations of an already owned character, but it has to be a 'one off'. Meaning if you scanned the picture you painted and sold prints of it, you would be in violation of the copyright. You can't sell mass productions of a product like that.

However, if you painted a totally new picture of spider-man in a new pose, then it's again an 'original' creation, and you can sell it, but not make prints just like before.

 If however, some one who bought your painting put it on display in an art gallery and charged admission to see it, they would be in violation, but if they sold it to some one else, it's totally legal.

Picasso Spider-Man is Pleased

Example:
One the time Disney sued the day care with a mural of Micky Mouse. The artist wasn't in trouble, the daycare was because this was a 'work for hire' situation. The day care charged parents to attend their facilities, and it was a public space. BUT had it been 'Snow White' or 'Sleeping Beauty' they would have been fine, because those Characters are NOT owned by Disney. They are Grimms Fairy Tales from over 100 years ago, and thus are public domain (anything 70+ years old after the death of the author). However that 'version' of snow white is owned by Disney - but you can totally paint a black hairs pale chick hanging out with a bunch of short dudes and still call it 'Snow White' with no worries.

How This Applies To Face Painting:
Every single face paint of spider-man is legally an 'original' and 'one off', because we are painting on a new face every time, and every face is unique. Also it's not a permanent art that the client can keep forever. Face Painting is NOT a tangible resalable product. And THAT is the key.



BUT remember, if you have a photo of a copyrighted character on your design board, you are in a grey area and could be cited if a Disney executive happened to walk by, and if it's labeled as 'spider-man' you defiantly are infringing. (though seriously when ever is a Disney spy going to be scoping out your face paint board. lol) Because now the photo is something tangible, even if it's just an example.

What Can They Do?
On my website, my Spider-Man photo is labeled as Spider-Man. I'm really not that worried, because if Disney ever sniffs me out, what they will first do is send a 'cease and desist' letter, which means "Stop what you are doing, or we'll sue you." at which point I can change the name to 'Spider-Guy' . If that's not enough, I really don't have to have Spider-Man on my website, and I highly doubt they would spend the man power to follow me to a farmers market in order to spy on my display sign. I think I'm pretty safe because when it comes to face painting, we are small potatoes to them. They care more about mascots and other things. When it comes to face painting and balloons there is only so much they can do any way.

Generally speaking, the copyright holder must prove the copied work has a negative effect on the work's value or potential market.
"Ladies..."

Also companies WANT fans of their work, and they want fans who appreciate their work. And since face painting isn't a knock-off resalable item that interfere's or competes with the copyright holders own products on the market, you are in essence helping them by drumming up the popularity of their characters. That boy you just painted as spiderman is now more of a fan, and is more likely to buy a spiderman costume, or action figure because the face painting you gave him doesn't last more then a day tops. This being said it would be pretty hard for a company to prove that what you are doing is 'negatively' impacting them or their sales.

It's Like Ink Tattoo's
When it comes to (real) tattoos, a tattoo artist who inks a cartoon character onto a client without obtaining permission from the original illustrator may be infringing by affecting the potential market of the character; the illustrator could sell drawings to tattoo parlors for use on clients. On the other hand, the client is less likely to be considered infringing, since his display of the work is usually not for profit and in most cases would not affect the work's value or market.

The way the law see's it (so I've been told) is that it's like a tattoo. Models or actors don't have to pay their tattoo artists royalties every time their tat is on a magazine or in a movie, so the same goes for body paint, and thus face paint.
You win this time Johnny Depp..... damn you so fine.

Find out more about tattoo copyright here
https://www.legalzoom.com/articles/before-the-ink-dries-copyright-law-tattoos
(Because there isn't much to be said about face paint lol)

But Wait... Then Who Owns The Face Painting?
This is true in Canada last time I checked, that once you paint something on some one else it becomes their property, regardless of whether or not they paid you.

I found this out talking to a photographer after doing some body painting for the first time. He told me that I should get my body paint models to sign a contract of sorts because once it's painted the model owns it. Therefore the model could always strike a deal with the photographer to sell the photos to a magazine, they both make money and you are sh!t out of luck on all your hard work!



Scary thought, right?

Also means anything the model does with your face paint is on them, not you. So no need to worry if they take some photos and post it on their social media account.

Just like how Disney sued the daycare and not the artist of the mural. The owner of the wall was held responsible, not the one who painted the wall (unless they advertise that they paint copy righted characters). So the owner of the face is held responsible if they want to take a photo of their spider-man kid, then make a bunch of prints and sell it as 'spider-man face paint photo'. You get off scott free.

But this opens up a whole new can of worms now doesn't it! lol

Do I have signed model releases for all the faces in my selection book? Nope! Usually I just ask the parent if it's ok if I take a photo for my portfolio and get permission, if anyone ever comes forward and asks me to remove the photo from my gallery - done. Never had in issue in over 15 years, and signing model releases slows up the line lol!
"Wow. The face painting line sure is long today...."

So if the model owns the face painting once you put it on them, technically what is stopping some crappy face painter from stealing another artists face paint work and posting it on their site? Not much legally it seems, unless the original model steps forward; except a whole lot of public shaming if the truth ever comes out. Again this is a huge grey area.

BUT as it turns out we in fact DO own the photos. And if some one lifts them from our site, we have every right to ask them to remove them. Why? Not because we are the ones who painted the face, but because we were the ones who took the photo! We are the photographer!
... Shut up Sean Bean, we're talking about copyright here.

Photographer's works are more protected and defined under copyright then face painting and tattoos currently. So if you see someone lifting your work, damn straight you have the law on your side to get them to stop!

On the plus side because of these laws I was able to go up to a face painting company that stole my gig, get them to paint one of their crappy butterflies on my hand, and take a photo of it, and use it in advertising.
Technically I could name the company too (like Coke VS Pepsi) but I don't want to by too mean. *wink*
On MY hand, and MY photo = My Property = Totally Legal.
The artist who painted it knew it was going to be 'on public display' because that is implied since it being painting on some one's body. Like having a statue in the middle of a park, people are going to take photos of it and post those photos, and the artist can't go around suing all the people who took photos. The artist knew their work was for 'public display purposes', so there isn't much they can do to litigate against the use of a photo of their work.

Makes you think though, what if another face painter followed you around to your gigs and took photos of all your face paints and then put them up on their website?! No worries. If they mislead the public into thinking it's their work, it's not legal, falls under 'false advertising'. So there's that too.


Conclusion:
When push comes to shove some times it's better to beg forgiveness then to ask permission in my opinion. Besides it's not like we can all be like Disney and NEVER, EVER shamelessly rip off another persons work to make a profit.

Oh wait....

Kimba The White Lion (1965)
VS
The Lion King (1994)


I guess being a hypocrite is OK, so long as you have high priced lawyers?

Thanks For Reading!!!


P.S.


I'm not a lawyer, I just read a LOT, you can look all this up on your own. Copyright when it comes to tattoos is already a very murky area, but it's the best we have to go on for something like this. Because this kind of information is REALLY hard to find and define, and there are very few, if any, court cases to set a precedent for this.

Moar Links:
https://www.nolo.com/dictionary/fixed-in-a-tangible-medium-of-expression-term.html
http://www.leydig.com/publications/articles_publications-355
https://commons.wikimedia.org/wiki/Commons:Deletion_requests/File:Spiderman_and_child.jpg
http://www.rubyredpaint.com/faq/faqcopyright.htm
https://commons.wikimedia.org/wiki/Commons:Deletion_requests/Image:Jack_Sparrow_%26_girlfriend.jpg

3 comments:

  1. As a fellow face painter I really appreciate all your research and posting this really important information! :)

    ReplyDelete