Is it even legal to commission a redraw of an exsisting illustration?

August 27, 2009 6:38 AM

I need to replicate this picture. I can't use that picture due to copyright issues. But my client is insistent on using the idea. What are my options?

It seems to be I have three options, so probably three questions.

A) Find the original illustrator and attempt to gain copyright to use the image. Have NO idea where to start because my client doesn't remember where the image came from and my google skills fail me. I also need a much higher quality of that image.

B) Commission someone to redraw it. Where do I find a person like this? Would Etsy be a place to try? How much should I expect to pay? I'm concerned about this option, because this job does not pay much.

C) Find replacement pictures. Which I have tried to do. (flour, eggs, bowl for picture 1, cakemix for picture 2, store bought cake for picture 3, party at chuck e cheeses for picture 4). I wasn't fond of my results because these need to go into a flash animation. I couldn't shrink the pictures down far enough to keep their quality/clarity and still fit them within the required dimensions. (which is 700 pixels wide by 290 high)

D) Any other idea you might have?

Thanks!

posted by royalsong to Media & Arts (26 answers total)

It looks very much like a birthday card you might find in Hallmark, so I really doubt you'll be able to license the image.
posted by smackfu at 6:43 AM on August 27, 2009

But my client is insistent on using the idea.

Then copy the idea, but not the image. Talk to the client about he likes about the image and concept and then work something up based on those guidelines.

I'm concerned about this option, because this job does not pay much.

This sounds like a client management issue. Make sure you have a contract and makes sure the client is signing off on various stages. Make sure you're discussing fees up front if you're going to recreate this concept. Be prepared to walk to if youi start to lose money.
posted by Brandon Blatcher at 6:51 AM on August 27, 2009 [2 favorites]

No results on TinEye, so I suspect Smackfu is right. However, from Googling around it looks like this is taken from this book. I think you'd be in the clear to get it redrawn or use images to illustrate the same concept. I'd think about avoiding the exact same wording though, if you were to do that.

Possibly think about the same idea, but illustrated with a different example?
posted by Happy Dave at 6:54 AM on August 27, 2009 [1 favorite]

I think you'd be in the clear to get it redrawn

IANAL. I did work in the marketing department of a law firm known for its IP department. We would never, ever, EVER do this.
posted by desjardins at 6:57 AM on August 27, 2009 [4 favorites]

I think what you are looking for is the word "no." Better to lose a client than get sued.

Unless you can get permission to use the original.
posted by St. Alia of the Bunnies at 6:59 AM on August 27, 2009 [1 favorite]

Response by poster: It's not that simple! But I appreciate the suggestion.

I do not get paid by the client directly. I'm a part time staff member that contributes to creating online learning environments (Meaning I create flash animations for online courses we develop at a college). "My" client is an Instructor.

I'm in charge of this stuff but I'm too low on the totem pole to request funds for the school to pick up the tab on the commission.

I know that is the option I would really like the best, because then I can have it created in such a way that I can manipulate it in Flash.

But I'm open to other suggestions. Or help in finding some online community where I can put in a request for a commission. Or ideas in what to do other then those four images i originally tried to substitute.
posted by royalsong at 7:04 AM on August 27, 2009

I just saw this article yesterday which describes a client scenario not too different than what you are describing, and the unfortunate repercussions - thou shalt not swipe...
posted by extrabox at 7:11 AM on August 27, 2009

Response by poster: I got it, I can't have someone recreate it as is without copyright permissions.

I never fully intended to have the final product be a direct copy. I have a theme there. As the economy evolves, it has had an impact on how we do something as simple as providing a cake for a birthday party.

I need help trying to figure out a way to redraw that theme or reconstitute it using public-domain images. Or some other legal idea.
posted by royalsong at 7:24 AM on August 27, 2009

If you're using this in course content, the licensing fees are likely to be nominal. But you need to license it.
posted by Sidhedevil at 7:27 AM on August 27, 2009

Happy Dave may be right. If you look at this book, it references the drawing and talks specifically about the birthday-cake analogy in the Welcome to the Experience Economy article in the Harvard Business Review.

The article was written by B. Joseph Pine II and James H. Gilmore, who are (see last sentence; PDF) "founders of Strategic Horizons LLP of Aurora, Ohio, can be reached at pine&[e-mail] or [phone]."
posted by Houstonian at 7:36 AM on August 27, 2009

At any rate it's going to be a derivative work, and thus subject to copyright. Whether you can copy it so as to obscure the source is a question of technique, but you'd always be at risk for someone recognizing it and putting 2 & 2 together, which will be especially apparent if you include the economic categories that underpin the connections between the frames.
posted by rhizome at 7:37 AM on August 27, 2009

Does it have to be a cake?

-Wove fabric, made dress.

-Bought fabric, made dress.

-Bought dress.

-Took a course on how to weave fabric/make dress or have something styled on you.
posted by tilde at 7:40 AM on August 27, 2009 [1 favorite]

I think that there are different rules for using copyrighted items for purely educational purposes. If the online classes are only going to be used by the college for teaching a particular class, and isn't going to be sold to other colleges for that use (become a product) then you have different rights for using the image.

U.T. has put together a great document on the subject. According to the site: "Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium."
posted by The Light Fantastic at 7:40 AM on August 27, 2009

IANYL: The original author, whoever that is, owns a copyright in the drawing and--possibly—in the exact wording (although it’s likely that any copyright in the wording would be very weak since the text component of the comic is brief and descriptive—Aside from the children’s exclamations the text is essentially title headings--which are not copyrightable.) Brandon Blatcher is correct that the idea behind the comic (the germ of what makes it funny--considering economics theories within the context of the production of a cake) is completely uncopyrightable and anyone is free to reinterpret that idea with their own art--a reinterpretation of this idea-- not a slavish copy of this comic!--) and expression. A proper reinterpretation of the idea behind this comic will not constitute a derivative work of the comic, and I agree that changing cake to another item would even further separate your interpretation from this artist's protected expression.
posted by applemeat at 7:49 AM on August 27, 2009

Find the original illustrator and attempt to gain copyright to use the image

There's almost no way the original artist (or whoever holds the copyright) is going to sell you the copyright to that image. Usage rights maybe, but that's a lot different. If you get in contact with anyone and ask for the copyright I'll be surprised if the conversation lasts much longer.

An instructor should understand that plagiarism is wrong, and so is stealing someone's copyrighted work.
posted by theichibun at 7:53 AM on August 27, 2009

A little more about the probable owners of the illustration... They offer an "Experience Economy Expert Certification" course. Some of their clients have been universities. So, it's possible that's where your instructor got the illustration.
posted by Houstonian at 8:05 AM on August 27, 2009

Response by poster: Thanks everyone.

Unfortunately I'm not getting what I need. I should have chosen a different title - it was more an after thought I had. I do not need to know the legalities. I understand those. I understood them from the moment I wrote my post. Can't copy the image, it's bad. And The Light Fantastic is correct - copyrights apply differently for educational use.

I need help finding sources to help me link the concept - using ideas like tilde's idea for clothing (which is actually a fantastic idea and I will propose it to the instructor.)

I need someone to draw or point me in the direction of resources I can use.
posted by royalsong at 8:10 AM on August 27, 2009

You know what? In this situation, I'd advise the client to get a legal opinion from someone else. If you work for a university that has some lawyers on staff somewhere, ask them.
posted by amtho at 8:19 AM on August 27, 2009

Actually, better than clothing might be food.

- first we grow it and make it
- then we buy it and make it
- then we buy it made
- then we pay a celebrity chef to serve us a smaller version of it on a larger plate
posted by tilde at 8:23 AM on August 27, 2009

That looks like a familiar political cartoonist' style and I can't remember who. Not Ted Rall but someone like that. It's definitely not Hallmark, it's almost certainly a well established political cartoonist.

Email the Funny Times and see if they know, they probably see thousands of political cartoons a week.
posted by By The Grace of God at 8:26 AM on August 27, 2009

If you pick a category that's common, such as food, you could use iStockPhoto to get cheap stock photos that could work. I recommend stock photos because it's easier to make them look like they're all part of the same style, while clip art can end up looking like a ransom note. Your university should at least allow you that small expense. You would also need to use different wording, but you know that.
posted by PatoPata at 8:32 AM on August 27, 2009

the todd goldman hoopla would imply that you can't just re-draw it.
posted by rmd1023 at 9:14 AM on August 27, 2009

Don't redraw it. You'd be opening yourself up to plagarism suits rather than simple unauthorised use.
posted by mippy at 9:54 AM on August 27, 2009

If it's for students maybe use a dating analogy? or books? or coffee?

Agrarian economy -- dig well, get water, heat water, add leaves, whatever
Industrial economy -- water comes in pipes, make coffee on the stove or in coffee pot
Service economy -- buy coffee at local shop
Experience economy -- buy coffee at Starbucks with integrated bank/bookstore/whatever
posted by ClaudiaCenter at 12:01 PM on August 27, 2009 [1 favorite]

BOOZE. Students love booze.

Agrarian economy - Thirsty man plants grains, harvests them, distills them in homemade container
Industrial economy - Thirsty man puts his grains into a mass produced distilling container
Service economy - Thirsty man buys booze at the store, enjoys on front porch
Experience economy - Thirsty man books a private rondevu in the ice bar (or some Vegas club where the bartenders do a lot of flair)

Do you have a friend that could draw this? The theme of your asssignment is a sort of comical way to explain the different economical theories, so rough artistry would be fine methinks. No need for a Monet.
posted by WeekendJen at 1:10 PM on August 27, 2009

If your college that you work for has a physical existance with a college newspaper, you could try to recruit one of the students who does comics to draw this up for you.
posted by WeekendJen at 1:12 PM on August 27, 2009