Copyright is always a confusing, emotional, and controversial issue. Many people are unaware when they violate copyright law (or they don’t seem to care) and others are nearly paralyzed in fear that they’ll accidentally break laws and hurt others.
When we look online for clarity on the subject of copyright law, we’re met with an onslaught of conflicting opinions, links, and confusing jargon. Copyright arguments come up in the news frequently and this gives us the idea that it’s so confusing that nobody could possibly find the true answers. If big corporations and entire law teams can’t decide what’s right, then how can we? Well that’s probably true for some of the stickier fine points in copyright law. But what are the general truths that apply to most of us?
Like everyone else, I have been very curious about the rules when it comes to copyright. As a tutorial writer, I’m concerned about protecting my intellectual property, but at the same time I always want to make sure that I don’t abuse anyone else’s rights to their creations as well. So I did a little research.
I’ll try to summarize what I’ve found, and I’ve compiled some of the major points into an infographic of copyright guidelines for polymer clay artists. (And I have to say it…I’m not an attorney…I did some digging and am trying to clarify it for you. You need to go see your favorite attorney if you need advice on a specific issue.)
Copyright Guidelines for Polymer Clay Artists
Here is an infographic that hopefully summarizes this information into a format that’s easily understandable. It is not comprehensive, it’s just an overview. I go into much more detail below in the article. Please feel free to share this graphic freely on social media, by email, with your friends. But I do ask that you don’t modify it, you give me credit, and you include a link to this article. Thank you! (Click on the photo to see the infographic full size.)
*Note* Click here for a version of this infographic that’s for crafters & hobbyists. It’s identical except for the title. Feel free to share this instead if it meets your needs more closely. This is still a valuable set of guidelines for jewelry designers, metal clay artists, scrapbookers, knitters, soapmakers, woodworkers, mixed media artists, cake designers, and every other craft and hobby that I can think of.
Many people think that copyright is a method of preventing people from making anything that’s similar to their work. That’s actually not true. Copyright is nothing more than the right of the creator to control the copying and distribution of their work. But it is an important and powerful concept that you really do need to understand as a polymer clay artist.
Anything that the human mind creates, such as photographs, inventions, music, books, diagrams, sculptures, beads, characters, symbols, and words, is known as intellectual property and has legal standing with varying levels of protection.
The rights of the creator have to be balanced against the rights of the public and there is an entire industry of Intellectual Property Rights law that keeps attorneys and the legal system quite busy. Some aspects of these laws are fairly obvious (e.g. the author owns the rights to his book) but others can get very confusing (e.g. works derived from the work of another). I can’t possibly cover it all here. But there are some basics that, once understood, will help you know the right answer in the majority of situations you’ll encounter.
I’ll start by defining a few terms that will help us understand how Intellectual Property Rights (IPR) law affects us as artists and crafters, then I’ll go into more detail about copyright, specifically.
Trademark, Patent, and Copyright
A trademark is a word, logo, or other mark that is connected with a business that distinguishes it from that of another business. Everyone knows that the golden arches M symbol is owned by McDonald’s. It is a registered trademark for them, as are the terms Big Mac, Lovin’ It, and Quarter Pounder. You have to apply for registered trademark protection from your government and it’s not automatically granted. But the first person to use a business name or mark in their region does have “common law” trademark protection in some jurisdictions.
If you invent something, such as a machine or a process for creating something, you can apply for a patent. A patent gives the inventor legal protection for a specific period of time. Obtaining a patent is an expensive, complex process and you are not guaranteed that you will be granted one. There is a related type of intellectual property, called a trade secret, which includes things such as proprietary formulas, recipes, and secret processes. The laws on trade secrets are very much region specific. Few of us will ever use patents and trade secrets to protect our work and obtaining them is beyond the practical scope of a polymer clay artist’s resources.
Copyright is merely the right to copy a creative work. And it only applies to creative works which exist (or could exist) in a concrete form such as a recording, sheet music, painting, photograph, sculpture, text, digital image, document, or computer program. An idea is not protected by copyright. Nor is a technique. Nor a style. Here is a fantastic list of things which are not protected by copyright.
The creator of a work is automatically granted copyright as soon as that work is published in a public manner. You do not have to apply for a copyright. You can, however, register your creative work with your government to establish an undeniable date of origin. If you ever have to sue anyone for copyright infringement, you have more rights if you have registered the copyright.
As the copyright owner, you are the only one who owns the right to copy, duplicate, distribute, publish, or modify that original work. Copyright can also be transferred (or sold, like selling movie rights.) Copyright expires after a certain period of time (this is dependent on local law). This is why very old creative works (such as works by Shakespeare and DaVinci) are part of the public domain. This means that the public owns the rights to copy the work, not the creator.
When a copyright holder gives others permission to copy or distribute a creative work, that is a contract called a license (the copyright is not transferred when a license is granted). Purchase of copyright protected material does not grant the right to copy it. When you buy a book, you don’t also buy the right to photocopy it. When you buy a CD, you don’t get the right to duplicate it, broadcast it, and use the songs in your online videos. And when your wedding photographer hands you a DVD with the image files on it, it doesn’t automatically include the rights to print those pictures. The photographer would have to grant you a license to do this. And that’s why you can’t take your school pictures to a copy shop and make copies of them for your mother, even if you paid for the pictures.
While it is true that copyright law varies from country to country, most countries do have treaties which honor the copyright laws of other countries. I have read of people claiming that their country doesn’t have copyright laws or that the laws in the US don’t apply to them. That’s not usually true.
In most cases, local copyright law differs mainly in the details such as duration of the copyright. In most of the world, the fundamentals are just the same. If you create something, it’s yours, and others can’t copy it. There is plenty more information about international copyright law online.
UPDATE: This article has now been translated to other languages and updated to reflect the laws of their respective countries.
Here is the Russian Version (Thanks to Natalia Ivankova, Venera Novoshinskaya, and Jana van Vliet).
Here is the Polish Version (Thanks to Agata Mężyńska).
Here is the Italian Version (Thanks to Alessio Gila).
Although the originator of creative materials does hold the copyright, the public does have some rights to use these materials as well. This concept is called “Fair Use” and is the single largest area of confusion (and litigation) in the field of intellectual property rights.
Fair use is a doctrine of situations where the use of a copyright protected material is legal in limited situations such as derivative works, critique, education, commentary, and news reporting. You can read more about how the US handles fair use here.
Tutorials and Classes
The writer of a tutorial or the teacher of a class is the originator of that creative content and it means that the teacher holds the copyright for the digital file, all the images, any slideshows or videos, the handouts and diagrams, any drawings or templates, and the design of all the samples and examples that the teacher has created. This is true whether the class is free or you paid for it.
Purchase of a tutorial does not mean that the purchaser can share it with others, post it online, or distribute it in any way. Free tutorials are protected under copyright law just the same as purchased tutorials. Copyright has nothing to do with purchase, and sale of a tutorial does not imply any licensing for the purchaser to have copyright of any part of the tutorial, class, or design.
But what about making things WITH the tutorial? Does that violate copyright? Well here’s (hopefully) some clarity. You have obtained a copy of the instructions to make something, which is a lot like having a copy of a book. The copyright to the text itself and the images is held by the tutorial writer. And the copyright of the artwork illustrated in the tutorial belongs to the artist. As such, you cannot create copies of the text, the images OR the artwork unless allowed by the artist.
Of course, the whole point of the tutorial is to teach you how to make the project. So copying the artist’s project is a derivative work covered under the Fair Use provisions above. You’re allowed to make copies of the class project for educational purposes. But it’s not, technically, your work and you do not hold the copyright to that design unless you have met the criteria for fair use. And for a new work to be considered your work (and not a copy of the teacher’s design), there are rules about derivative works which apply.
You would need to have transformed the design so much that a reasonable person would see that it’s not the same as the original. It’s not a percentage thing, by the way. And changing the color or adding a button is not enough to be a “transformation”. The “essence” of the design must have been changed.
Now this doesn’t feel very good for the student. How much is “enough” transformation? Well, courts spend a lot of time on this very subject, and you could pull your hair out about it for sure. But you’re just going to have to do some soul-searching and go with your gut. Would the average person look at your project and know that it’s a copy of the teacher’s example? Then it’s probably not transformed enough.
Does that mean you can’t share or sell your copy of the design? Well, legally, if you wanted to get really picky about it, probably not. But here’s where generosity comes in. Most tutorial writers are very happy to let you share these class samples and tutorial projects because it helps them sell more tutorials. So please DO share them, but be honest about it and give credit to the original artist (with a link to their tutorial if possible). It’s not legally necessary, of course, (legally you don’t hold the copyright anyway, remember) but it’s a common courtesy thing.
If you don’t want to do that, then please don’t share these pieces in public. Can you sell them? Well, legally, no, as you don’t hold the copyright and Fair Use protections don’t extend to commercial use. But ask the teacher or tutorial writer for permission and then comply with their wishes.
But what if your class samples don’t look anything like the teacher’s design? Well, that’s different. Many tutorials teach techniques and not specific projects. If you follow a tutorial and the end result looks nothing like the teacher’s example, and the average person wouldn’t make a connection between your work and the class sample, then it’s considered to be your original work and is not a copy of the teacher’s design. Just because the same technique was used does not mean that the tutorial writer has any copyright on the works you create. It’s only an issue if your result is a copy of the teacher’s design.
“Inspired By” or Derivation or Style
You don’t have to take a class or follow a tutorial to be violating someone’s copyright. If you copy someone’s design, and you aren’t transforming it enough that an average person would say it’s different, then you’re not making your own design. Okay, that makes sense.
I can’t make a copy of a specific one of Doreen Kassel’s cute little birds. I’ll make a “mashup” of them in her style. Is that okay? In a word, YES. Style cannot be protected by copyright, but a design can be. So feel free to make your own little animals in Doreen’s style. Another example would be Kathleen Dustin’s purses. You can make a polymer clay purse. You can even make a polymer clay purse in Kathleen’s distinctive style. But it’s not okay to make a copy of a specific one of Kathleen’s purses so that the overall “feel” of the design has not been changed.
What about derivation? Can you look at someone else’s design and derive one of your own? Sure! We all look at other designs all the time. We all get inspiration and ideas from each other. We look at nature, at other mediums, at our children playing and are inspired to create our own designs. This is wonderful. Never feel guilty about making your own interpretation of someone else’s art. There’s nothing wrong with having a stroll through Pinterest or Flickr for inspiration and then sitting down to create a new design of your own.
But it’s not okay to print out a picture of someone’s art, take it to your studio, and figure out how to make one just like it. Learn the techniques, sure. Reverse engineer, that’s fine. But apply it to a new design, okay?
Don’t copy. And if what you make is close enough that you’re embarrassed to show it, are afraid to be found out, or think it might be a copy, then it probably is. Just like when you were a child writing a report, you knew when you were copying from the encyclopedia. Let your conscience be your guide.
Is it okay to say that it’s “inspired by” someone? Sure, go ahead and let the other artist know that you were inspired by their work. They’ll be flattered! But stating that you’re “inspired by” another artist gives you no protection if what you made truly IS a copy. Make your own work. Create your own designs.
If you copy a design for practice or to learn a technique, then please know that it’s not your design. It’s not your art, and you don’t hold the copyright. What you do with it is your choice, but be prepared that the original artist might not be so happy to see their work copied so closely. This kind of copying is illegal, unethical, and unless the other artist is a teacher putting their design out for that purpose, you will likely make someone upset.
When it comes to characters such as Mickey Mouse or Kermit the Frog, the rights to reproduce the character are granted, in the form of a license, to companies who have purchased that license and want to make merchandise which contains the image or likeness of that character. The license agreement is a contract between the copyright owner and the licensee. If you didn’t purchase a license to create one of these characters, you cannot use the likeness of the character. If you do, you risk being sued by the copyright holder.
But what if you make a figurine that’s merely “inspired by” the character? What if it’s not in the same style, such as a “kawaii style” version of Ariel? Or a “zombie” version of Miss Piggy? Is that legal? No, it’s not. As long as the character is recognizable as that character, it’s a violation of the copyright and the owner can sue you for infringement. In fact, if you sell copies of licensed characters, be aware that many of these companies are quite aggressive and will very readily sue you. And they’ll win. They have lawyers on staff and deal with this everyday. You don’t.
Dealing with Copiers
One of the most frustrating and disheartening things an artist deals with is copiers. It’s just so awful to find that someone has stolen (and yes, it’s stealing) your intellectual property and made a copy of it. Some people say that an artist shouldn’t ever publish anything they don’t want stolen. That’s just silly. That’s like telling a theft victim they shouldn’t have had a nice car if they didn’t want it stolen.
How can you stop people from copying your work? The short answer is that you can’t. There will always be sneaky, mean people looking for an easy way. But you can make it harder for them.
If you’re an artist, publish your work. Get your name out there, with links. Write articles, have a website and blog, be visible. If the community knows you as the maker of that type of work, any copiers will be called to task by your peers. If you hide your work from the world, nobody will know that it’s yours and if someone copies it, nobody will know it wasn’t their work.
Label your work as yours. Use a signature stamp or cane slice. Also, a discreet watermark on your photographs isn’t so much for preventing theft, as much as it’s for informing viewers what your work looks like. It’s branding.
If you don’t want your work to be copied, make work that’s difficult to copy. If your designs are merely a “collection” of several commonly known techniques, it will be very easy for anyone to make the same designs (intentionally or accidentally). Don’t be afraid to develop your own artistic voice so that your designs have an essence that’s very difficult for others to imitate.
If you write tutorials, do include a copyright statement. But also consider making a point of explicitly granting a license to your purchasers to make digital copies of the tutorial for use on all their devices and a print copy for their studio. This gives you a chance to frame your customer’s rights in a positive way instead of the usual ominous warnings. It helps to establish that sharing the file or printout with others is not okay, but frees your customer to use your tutorial easily. Most customers will feel far more comfortable knowing where they stand.
Understand the difference between copyright and license. If you are okay with your students selling copies of your work, then grant them a license to do so. Be clear about which designs that you will allow them to copy. You will always hold the copyright, but by granting them a license, you are entering into a contract with them that allows their use of those designs, and defines the terms.
Can you sue someone for copying you? Yes, if it is actually a copy. Remember that you have no copyright protection against someone copying your style or using your techniques. Consult an attorney for the specifics on how to take legal action. But there is a way to dig some teeth into the situation. If someone has posted a copy of your copyright protected material online, and you can prove that you are the legitimate copyright owner, you can send a DCMA notice to their web hosting company. You can also report infringements on Facebook or Pinterest. (Merely sharing uncredited photos of your work is not enough, they must be claiming the work to be their own.)
As if copyright law wasn’t confusing enough, things get really weird when you start looking at social media. There is litigation pending that will likely reform the way we look at copyright law in the future. But for now, the reality is that images get shared online constantly. Keep in mind that your images will likely be pinned to Pinterest or shared on Facebook. If you don’t want this to happen, you should keep them private. If you share other people’s photos, though, please make sure that credit stays with the picture and it links back to the original source. DO NOT download other people’s photographs without their permission. Instead, bookmark the link. And if you want to share an image online, SHARE it…don’t steal it. Use the share button on Facebook and the repin button on Pinterest. Both Pinterest and Facebook work hard to respect the privacy setting and ownership of images, so don’t try to circumvent their limitations.
If you want to share an image but don’t know the original source, you can often find it by doing a reverse image search.
What you Can and Can’t Do
It seems like there’s a lot here that you can’t do. But honestly, the only thing you can’t do is copy another person’s intellectual property. You can get inspiration from others. You can use the same color palette as your favorite artist. You can use the same techniques. You can use the same materials. You can work in the same style. You can use tutorials. But you have to make your own design. Do your own work, make your own magic.
You can’t use images from the internet unless you have the permission of the copyright owner. Just because clip art or a font is online doesn’t mean you can use it. And if you’re using an image for commercial purposes, like using an image transfer on some earrings you sell in your Etsy shop, you need to obtain images that are licensed for commercial use.
Be aware that many free clipart sources are licensed only for personal use. Also know that doing a Google image search and saving the image from the search screen can be very misleading. Unless you follow the link to the original site and check what the source is, you might be unknowingly downloading someone’s copyrighted artwork.
Keep in mind that almost every image on the internet is owned by someone. Unless they give you specific permission (license) to use it, you risk copyright litigation. This really does happen.
Using stamps, molds, texture sheets, decals, and templates in your work is a controversial area as well. These items are subject to copyright and don’t typically give you explicit license to use them in your creative works. We all assume that you’re allowed to. But unless you contact the manufacturer and ask permission specifically, it’s best to reserve these materials for your personal use. Because of this issue, some artists just don’t use such things in their work. They make their own stamps or textures. You might want to do this if copyright concerns or full originality of your artwork is important to you.
You can’t distribute copyrighted materials such as tutorials themselves, the pictures or text in tutorials, drawings or templates, or the digital file of a tutorial.
Don’t take a class or buy a tutorial and then teach that same content. If you want to be respected as a teacher then you need to create your own curriculum or tutorial. It’s also not okay to give a demo of a purchased tutorial in a guild meeting unless you’ve specifically asked the originator for that permission. Please do ask for permission. It’s fair to the teacher and it builds respect for YOU as a valuable member of the community. Nobody likes a copier or a cheat. And your reputation will suffer if you do this. Word does get around.
Thank you for following along with me on this fascinating and complex subject. I hope this article gave some clarity for you. If you would like more information, though, have a look at these links and online resources that I consulted in pulling this article together. There is a lot of excellent information out there, you just have to go find it.
You guys know I’m not a legal expert and this is not legal advice. The information I provide is true as far as I know, but I could easily be wrong.
This is just an overview and summary aimed at polymer clay artists. If you need more information, please read up on it yourself (see the links above) and of course, consult your attorney for any information about your specific situation.
Many gracious thanks to Donna Greenberg, Katie Oskin, Tonja Lenderman, Desiree McCrorey, Jeannie Havel, Melanie West, and Lizzi Bucklow-Holt for their kind assistance, support, consultation and advice with the infographic. You girls rock!
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