Who owns copyright on art work?

Copyright laws can be a bit tricky and vary by location. Copyright and trademark are indeed very different.

There are many myths regarding what is protected and what isn’t. There are two aspects to an infringement modelers ought to consider. The first aspect is understanding what is protected. For example, in the US, modelers often believe that they may copy a model part for their own personal use, not for sale or profit, and therefore the copying is not an infringement. That is absolutely false. Copying a model part is considered copyright infringement and therefore is illegal. Copying a part deprives the holder of the copyright the revenue they earned in producing it. However, the second aspect, which has to do with enforcing the copyright and the holder recovering damages, comes into play. That is another can of worms entirely. But be aware that copyright holders often do act to protect their copyright and do recover damages.

A second myth is that the object must be registered in order to quality as copyrighted. That is also false. Registration helps with damage recovery but is not required under US law. Laws elsewhere may differ.

A third myth is that a US servicemember taking a photo as part of his or her official military duties retains copyright of the photo. Photos taken as part of official military duties are the property of the US Government, and unless specifically exempted, are normally considered in the public domain.

Short answer under US law from the US government’s Patent and Trademark Office (click here for more):
“Copyright is a form of protection provided by U.S. law to the authors of “original works of authorship” fixed in any tangible medium of expression. The manner and medium of fixation are virtually unlimited. Creative expression may be captured in words, numbers, notes, sounds, pictures, or any other graphic or symbolic media. The subject matter of copyright is extremely broad, including literary, dramatic, musical, artistic, audiovisual, and architectural works. Copyright protection is available to both published and unpublished works.”

The long answer under US law:
"Under the 1976 Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work. In the case of sound recordings, the copyright owner has the right to perform the work publicly by means of a digital audio transmission. These exclusive rights are freely transferable, and may be licensed, sold, donated to charity, or bequeathed to your heirs. It is illegal for anyone to violate any of the exclusive rights of the copyright owner. If the copyright owner prevails in an infringement claim, the available remedies include preliminary and permanent injunctions (court orders to stop current or prevent future infringements), impounding, and destroying the infringing articles, and monetary remedies.

“The exclusive rights of the copyright owner, however, are limited in a number of important ways. Under the “fair use” doctrine, which has long been part of U.S. copyright law and was expressly incorporated in the 1976 Copyright Act, a judge may excuse unauthorized uses that may otherwise be infringing. Section 107 of the Copyright Act lists criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that may be eligible for the fair use defense. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. The Copyright Act also contains a number of statutory limitations covering specific uses for educational, religious, and charitable purposes.”

If their official duty is say grunt and they use their personal camera to take said photo, then that is their property and not that of the US Government, correct?

I still don’t believe any of the artwork used on Vietnam guntrucks fall under copyright laws. Reproducing them for modelers to use should be safe. Who can claim the artwork?

Especially when the names themselves are considered. In the decal sheet that is the source of this conversation, one is named after a music group of the era. I doubt that the group in question, who may have their name copyrighted, gave permission for their name to be used on a military vehicle. The second is named after a military radio term, certainly something that cannot be copyrighted. A GI applying a name or artwork to government equipment cannot claim copyright to something that they don’t own.

If a US servicemember is taking a photo outside the service member’s official duties, generally, the photo is not considered the property of the US government.

“Official duty” is the key phrase.

As an aftermarket business owner, copyright and trademark are big considerations, as is product licensing. There are some art, phrases and words that can be used and some that can’t. For example, a vendor making airliner model decals that include trademarked names such as “Delta Airlines” or the Delta Airlines logo is probably legally required to obtain a license by Delta Airlines in order to legally sell the decals. A decal that reads simply “ENTERPRISE” to be put on the fantail of a model aircraft carrier does not require any licensure.

For example, USPTO confirms that the name “USS Enterprise” is not a protected trademark. But “Starship Enterprise” is a protected trademark of CBS Television. So, a vendor can freely make and sell products for the aircraft carrier USS Enterprise CVN-65 and use the name “USS Enterprise” with the product. But if a vendor were to make and sell products that say “Starship Enterprise” without license from CBS Television, and CBS’ lawyers were to notice, CBS may choose to take action to protect their trademark. That action may be nothing more than a “cease and desist” letter. Or it could involve court action and damages including stiff fines and future royalty fees.

A great example is a 2004 lawsuit brought by Union Pacific Railroad against 60 model train manufacturers in Federal Court, including Lionel and Athearn, and won big (click here). UP later bowed to public sentiment and granted model train manufacturers a royalty-free license. UP kept the initial award, however. Click here to see Athearn’s present licenses.

Ironically, at the time UP went after Lionel in Federal Court, Lionel itself was suing others in Federal Court for violating their trademark (click here).

Using photos taken by others with products can be legally messy. Old photos are often considered “in the public domain” and can be used freely. More recent photos may be protected by copyright. Art work of recent production is probably protected by copyright. But art made many years ago may be considered in the public domain. Some research is required before using photos and art made by others to be sure that using them for commercial purposes is legal. Wikipedia, for example, is normally very good at identifying the licensure status of photos and art appearing on their site. Go to Wiki, click the photo or painting, then click “more details” at the bottom right corner to see its licensing status. Click here to see how Wikipedia identifies licensure for a photo of USS Missouri.

For example, unclassified photos taken during World War Two by US military photographers are generally considered in the public domain under US law because of their age and because the photographer was a US servicemember taking photos as part of his official duties with a camera owned by the US government. Likewise, a painting made in 1812 of the USS Constitution may be considered in the public domain because of its age. Most countries have copyright expiration periods. But a photo taken of the same ship berthed in Boston taken by a private person during a visit this year is nearly certainly protected by US copyright and can’t be used commercially without permission. This is why many vendors seek old photos or photos explicitly stated as being in the public domain for use with their products.

Further muddying the legal trademark and copyright waters is the issue of subject sensitivity. For example, if a private person takes a photo of a sensitive US military subject, the US government could legally seize the photo in the interest of security, and worse, prosecute the person. If a US servicemember takes a photo during operations of subjects or activities that could be sensitive, the photo and camera can be legally seized in the interest of operational security. If circumstances warrant it, the servicemember can be investigated and punished, too.

Since copyright and trademark issues can be complicated and violations can be costly, if you intend to make a product or copy something, if at all in doubt, seek advice from an appropriate legal professional. Best yet, ask for and receive permission or a license from the holder of the copyright or trademark.

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The Guntruck names really are immaterial. It’s the ‘design’ that is copyrighted. Basically it’s like this… draw a crude house with crayons on a A4 piece of paper and that is YOURS. No one else can use that image/design unless you grant them license. However if you try to draw a logo saying “The Beatles” and then try to sell that logo you created. Watch for the legal cease-and-desist in the mail. :slight_smile:

That is where names/trademarks come into the picture.

And to answer Gino’s question the answer is simple. The design creator. But again that would only come into play for say something more modern where the copyright holder could actually make a reasonable claim that he only just discovered a recent copyright infringement and was acting on it. For the Vietnam ones too much time has lapsed (through the 80’s to now) where no one was trying to enforce their ownership of these designs therefore they would not likely be able to win any claims. Copyrights have to be enforced to keep them. That is why companies who have them guard them so vigorously.

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Actually the name does come into play because the artwork appears to be in the same style of the band name on an album cover. The GI who created the artwork, looks to have been copying that album cover in the style of lettering, as well as the name.

Boy, I hope that the corporate lawyers don’t come after me some day for the names and artwork that I put on some of the military vehicles that I drove.

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I remember reading an article in a modeling magazine some forty years ago about a sculptor who created a series of figures (54 mm) based on the poses of figures in a painting of a battle during the US Civil War. The painter (who was living) sued the sculptor for “stealing” his work! That’s pretty extreme. Don’t remember how that played out.
:smiley:

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