copyright deravative art

September 15, 2005 6:39 AM

Copyright issue in derivative product / art ??

I want to create a product and/or art piece out of a certain product like say old ipods to resell...
For example, say I get five ipods... take the batteries out... connect them all together with a wall plug... and create an sort a like nightlight wall display type of thing..
It probably won't matter if I create for my self. But what if I want create 100 sets just like this...?? and sell them on ebay or something.. Am I going to get legal battle with Apple? One can say it is a modern art like the Cambell soup can by Andy Walhore... or just a night light display product using ipods...
Am I going to get in to trouble???

** by the way ipod night light thing is just an example

posted by curiousleo to law & government (10 comments total)

The iPods are your property--you own them. Your "derivative" product isn't competing in any way, shape, or form. You can legally do with them what you like.
posted by Civil_Disobedient at 6:45 AM on September 15, 2005

Are you going to be copying the iPods or merely using them to make sculpture? I can not see how merely using existing iPods in a new work would violate any of the exclusive rights in copyrighted works.
posted by caddis at 7:07 AM on September 15, 2005

An iPod is not subject to copyright protection, so that's a red herring. It may be subject to trademark, trade dress, and design patents.
posted by grouse at 7:18 AM on September 15, 2005

Examing the issue with respect to your hypothetical example, the iPod night light, concern over Copyright issues seem completely mostly unwarranted as, at least for that example, you don't appear to be infringing any of Apple's copyrights. However, Patent or Trademark issues could be a problem.

Since Apple has trademarked the term "iPod" it would be best if you avoid marketing your product as an "iPod night light," since Apple would undoubtedly claim you are infringing their trademark. Similarly, Apple has a trademark on their logo, and since the iPods which make up the hypothetical night light contain Apple's logo you would likely infringe this trademark as well.

Next, Apple has a design patent on the ornamental design of their iPod. With design patents protects against products which are confusingly similar in appearance, in your hypothetical this would likely only be the case if your night light consisted of a single iPod which glowed.

If Andy Warhol were to paint Campbell's soup cans today, he might well face a trademark infringement lawsuit. However, just because one gets sued, doesn't mean you'd loose. Tom Forsythe used a Barbie doll in an a series of photographs called "Food Chain Barbie," was sued for copyright and trademark infringement by Mattel and won. The court recognized that both copyright and trademark law allow artists to use well-recognized cultural symbols such as the Barbie doll to comment on and critique those symbols. You might get away with an iPod night light if you can demonstrate it was intended as a parody or criticism of Apple.
posted by RichardP at 7:27 AM on September 15, 2005

Argh! I need to improve my proofreading skills, my post above is full of grammatical errors.
posted by RichardP at 7:37 AM on September 15, 2005

This may come down to your willingness to get bloodied in a fight; being right doesn't mean BigMegaCorpCoInc's lawyer's won't have their way with you before you win, if you can afford to. Witness the idiocy of the retro iPod case for an idea of the kind of legal idiocy you may be on the reciving end of, or plain and simple parody issuses like the Prarie Ho Companion.
posted by phearlez at 8:04 AM on September 15, 2005

Pardon the piggyback: how about making a necklace, for sale, from Chuck E. Cheese tokens?
posted by leapingsheep at 11:37 AM on September 15, 2005

If you legally own the tokens, you can do with them what you wish. You wouldn't be able to use the word "Chuck E. Cheese" in any advertising you do, however, because that would violate trademark laws. I doubt with game tokens you would run into any trade dress or design patent problems.

For a good example of how taking a trademarked/branded/patented product and re-selling them, look at NES buckles.
posted by thewittyname at 12:49 PM on September 15, 2005

NES buckles are good example of what i am intenting to do...

The product will be part iconic art and part functional product...

showing apple logo will be a part of that iconoic art... but will that be legal? when producing 100 of them... with five pods together... hmmm.... but i appreciate all these answers..... hope to see more concrete ones...
posted by curiousleo at 2:56 PM on September 15, 2005

Thanks, thewittyname. I can't wait to get started....mwahaha
posted by leapingsheep at 4:12 PM on September 15, 2005