Can living things be copyrighted?
October 6, 2011 9:05 PM Subscribe
Can there be copyright in a tree?
By 'a tree' I am specifically thinking of a bonsai, the well-known Japanese cultured trees. I have a (potential) project that would involve making woodblock prints of bonsai trees. As I myself do not make bonsai, I would thus be gathering images from other sources: actual trees, book illustrations, photographs, etc and etc.
I of course understand that another person's photograph has its own copyright. But would this extend to the 'shape' and image of the tree itself? Can a living thing be copyrighted?
Any thoughts/advice on this would be much appreciated ... TIA!
By 'a tree' I am specifically thinking of a bonsai, the well-known Japanese cultured trees. I have a (potential) project that would involve making woodblock prints of bonsai trees. As I myself do not make bonsai, I would thus be gathering images from other sources: actual trees, book illustrations, photographs, etc and etc.
I of course understand that another person's photograph has its own copyright. But would this extend to the 'shape' and image of the tree itself? Can a living thing be copyrighted?
Any thoughts/advice on this would be much appreciated ... TIA!
IANAL, but I suspect the law would be similar to that for sculpture.
posted by hattifattener at 9:13 PM on October 6, 2011
posted by hattifattener at 9:13 PM on October 6, 2011
I know you're aware of copyright, but if you're working from a photograph, then that image will have caught the tree from a particular angle. In other words, it's been framed by the photographer that way. So in a sense the 'shape' of any bonsai tree you can find a photo of will already have been 'chosen' by someone.
Not sure what the copyright issues are, but what I suppose I'm trying to say is that because it's a 3d object being reduced to a 2d image, someone will already have made aesthetic choices to make that happen. As such, I'd say there's a moral responsibilty to recognise that person's work.
On preview: what Jairus said. Why not find people who have bonsai trees and photograph or work from them?
posted by Chairboy at 9:20 PM on October 6, 2011
Not sure what the copyright issues are, but what I suppose I'm trying to say is that because it's a 3d object being reduced to a 2d image, someone will already have made aesthetic choices to make that happen. As such, I'd say there's a moral responsibilty to recognise that person's work.
On preview: what Jairus said. Why not find people who have bonsai trees and photograph or work from them?
posted by Chairboy at 9:20 PM on October 6, 2011
I'm going to go against the grain and tell you not to worry about it [insert obligatory IANAL disclaimer].
Tree, to photograph, to woodblock seems like quite a stretch when it comes to enforcing copyright. In terms of transformativeness a woodblock print from a photo of a tree is kinda... transforming.
Then again, why fight if you don't have to. I can't imagine many bonsai owners refusing a polite request to use a photo of their work.
posted by cedar at 9:54 PM on October 6, 2011
Tree, to photograph, to woodblock seems like quite a stretch when it comes to enforcing copyright. In terms of transformativeness a woodblock print from a photo of a tree is kinda... transforming.
Then again, why fight if you don't have to. I can't imagine many bonsai owners refusing a polite request to use a photo of their work.
posted by cedar at 9:54 PM on October 6, 2011
Response by poster: bonsai owners refusing a request ...
That is of course very much on the table for at least part of this project. But in the browsing I've done so far in research on this, I have come across any number of very interesting images that would make excellent 'entries', but which are not so easily traceable.
I think an interesting aspect of this question is whether or not a bonsai counts as a 'sculpture'. Its growth was directed by the owner - who had the intention of creating a particular shape. This would seem to me to make it into a sculpture, and thus something that would clearly fall under copyright protection in its own right (irrespective of the copyright inherent in the photo).
posted by woodblock100 at 10:25 PM on October 6, 2011
That is of course very much on the table for at least part of this project. But in the browsing I've done so far in research on this, I have come across any number of very interesting images that would make excellent 'entries', but which are not so easily traceable.
I think an interesting aspect of this question is whether or not a bonsai counts as a 'sculpture'. Its growth was directed by the owner - who had the intention of creating a particular shape. This would seem to me to make it into a sculpture, and thus something that would clearly fall under copyright protection in its own right (irrespective of the copyright inherent in the photo).
posted by woodblock100 at 10:25 PM on October 6, 2011
How would the tree owner recognize their tree in your wood carving? Is that doable? Will the tree still be the same?
posted by J. Wilson at 10:43 PM on October 6, 2011
posted by J. Wilson at 10:43 PM on October 6, 2011
I am seconding cedar, don't worry about it and just do it.
Like the great band Negativland said: "Copyright violation is your best entertainment value."
posted by j03 at 10:47 PM on October 6, 2011
Like the great band Negativland said: "Copyright violation is your best entertainment value."
posted by j03 at 10:47 PM on October 6, 2011
Response by poster: Will the tree still be the same?
Well that too is an interesting point. In its most common expression (in the US) we have this: "Copyright protection subsists from the time the work is created in fixed form." Given that a bonsai is never 'finished', this would suggest that it would be impossible to copyright it.
As for recognizability, yes, the finished prints would clearly be recognizable as the same object; these prints will be quite realistic.
posted by woodblock100 at 10:48 PM on October 6, 2011
Well that too is an interesting point. In its most common expression (in the US) we have this: "Copyright protection subsists from the time the work is created in fixed form." Given that a bonsai is never 'finished', this would suggest that it would be impossible to copyright it.
As for recognizability, yes, the finished prints would clearly be recognizable as the same object; these prints will be quite realistic.
posted by woodblock100 at 10:48 PM on October 6, 2011
My recognizability question is-- are bonsai really different enough that you can see a picture and know it's yours and not someone else's? Not being a bonsai person, I find that hard to imagine, but if it's the case it makes a copyright claim more plausible (gut level hunch, not sure).
posted by J. Wilson at 11:00 PM on October 6, 2011
posted by J. Wilson at 11:00 PM on October 6, 2011
Response by poster: really different enough that you can see a picture and know it's yours?
Absolutely. Same branch structure, same knots on the trunk, same display tray ... These things are works of art in their own right, and I wouldn't be attempting to 'improve' them, just bring them to a wider audience (with the added beauty inherent in the 'woodblocking' process).
posted by woodblock100 at 11:10 PM on October 6, 2011
Absolutely. Same branch structure, same knots on the trunk, same display tray ... These things are works of art in their own right, and I wouldn't be attempting to 'improve' them, just bring them to a wider audience (with the added beauty inherent in the 'woodblocking' process).
posted by woodblock100 at 11:10 PM on October 6, 2011
Interesting question. I wouldn't be surprised if this hasn't come up before. But it's hard to see how a bonsai sculpture wouldn't be subject to copyright protection. It seems like it would pass the threshhold for originality.
The U.S. Copyright Office has this position:
In terms of transformativeness a woodblock print from a photo of a tree is kinda... transforming.
Transformativeness on its own is not enough to prove fair use. Courts have held that photos of sculptures are not transformative at all.
"Copyright protection subsists from the time the work is created in fixed form." Given that a bonsai is never 'finished', this would suggest that it would be impossible to copyright it.
"Fixed" has a specific meaning under the Copyright Act and it is not at all synonymous "finished." An unfinished work can still be fixed at various points. Things that aren't fixed are those that are not recorded. For example, an audio or dance performance that is not either recorded onto tape or disc, or executed from written sheet music or choreography instructions.
posted by grouse at 11:16 PM on October 6, 2011 [1 favorite]
The U.S. Copyright Office has this position:
Materials produced solely by nature, by plants, or by animals are not copyrightable.But a bonsai sculpture isn't solely produced by nature or by a plant.
In terms of transformativeness a woodblock print from a photo of a tree is kinda... transforming.
Transformativeness on its own is not enough to prove fair use. Courts have held that photos of sculptures are not transformative at all.
"Copyright protection subsists from the time the work is created in fixed form." Given that a bonsai is never 'finished', this would suggest that it would be impossible to copyright it.
"Fixed" has a specific meaning under the Copyright Act and it is not at all synonymous "finished." An unfinished work can still be fixed at various points. Things that aren't fixed are those that are not recorded. For example, an audio or dance performance that is not either recorded onto tape or disc, or executed from written sheet music or choreography instructions.
posted by grouse at 11:16 PM on October 6, 2011 [1 favorite]
IANAL, but there's also the matter of whether this is a derivative work. I don't mean that in the derogatory sense, but rather if you take a copyright-protected work and remix it (a lawyer friend used the example of a collage of Pokemon cards) you don't have an original work, you have a derivative work. You may have added some creativity, but you started with a protected work or works.
posted by Sunburnt at 12:15 AM on October 7, 2011
posted by Sunburnt at 12:15 AM on October 7, 2011
I think there are two separate questions here:
1. Is a Bonsai tree a 'work of art'? ie does the owner / pruner of the tree have the right to control the form and manner of reproductions of the work. This article has some useful information on taking photographs of Works of Art: http://www.wipo.int/sme/en/documents/ip_photography.htm#1.2
2. Is the act of "Making a Woodblock print" of another work of art the kind of re-production of the work that is protected by the Copyright Laws of the country you are working in. ie Is the Copyright-owner the only person allowed to say create a woodblock print of the Mona Lisa and exhibit this in a gallery or say produce a line of T-Shirts featuring this Wood Block Print?
According to the Link above under 1. if the Bonsai is in a public place then you are generally free to reproduce its image in a Photograph - and hence i'd expect a woodblock print also.
If you are just finding the photos online then I'm not sure if making a woodblock print is considered transformative enough to be outside the set of reproductive actions protected by copyright.
posted by mary8nne at 1:57 AM on October 7, 2011
1. Is a Bonsai tree a 'work of art'? ie does the owner / pruner of the tree have the right to control the form and manner of reproductions of the work. This article has some useful information on taking photographs of Works of Art: http://www.wipo.int/sme/en/documents/ip_photography.htm#1.2
2. Is the act of "Making a Woodblock print" of another work of art the kind of re-production of the work that is protected by the Copyright Laws of the country you are working in. ie Is the Copyright-owner the only person allowed to say create a woodblock print of the Mona Lisa and exhibit this in a gallery or say produce a line of T-Shirts featuring this Wood Block Print?
According to the Link above under 1. if the Bonsai is in a public place then you are generally free to reproduce its image in a Photograph - and hence i'd expect a woodblock print also.
If you are just finding the photos online then I'm not sure if making a woodblock print is considered transformative enough to be outside the set of reproductive actions protected by copyright.
posted by mary8nne at 1:57 AM on October 7, 2011
If I understand your question properly I would think that the product of the creative act you're talking about can't be copyrighted or controlled as intellectual property. If it were possible, I would think that someone performing plastic surgery would gain control over reproductions of the patient's face.
However, that's a complete guess by someone who isn't a lawyer.
(That's attempting to answer the question of issues related to creating your own depictions directly from the tree itself, as opposed to creation depictions based upon other people's photographs, which would definitely have the issues mentioned above of being derivative works as in the case of the Hope poster.)
posted by XMLicious at 4:25 AM on October 7, 2011
However, that's a complete guess by someone who isn't a lawyer.
(That's attempting to answer the question of issues related to creating your own depictions directly from the tree itself, as opposed to creation depictions based upon other people's photographs, which would definitely have the issues mentioned above of being derivative works as in the case of the Hope poster.)
posted by XMLicious at 4:25 AM on October 7, 2011
I don't know about copyright, but a tree has been trademarked.
As for the rest I agree with others who've said making woodblocks from existing images would be a derivative work. Best practice is to ask first.
posted by squeak at 6:42 AM on October 7, 2011
As for the rest I agree with others who've said making woodblocks from existing images would be a derivative work. Best practice is to ask first.
posted by squeak at 6:42 AM on October 7, 2011
Fixed and finished are two different things. Snipping a leaf is fixing idea to form.
posted by gjc at 7:18 AM on October 7, 2011 [1 favorite]
posted by gjc at 7:18 AM on October 7, 2011 [1 favorite]
I'm just now noticing that the original poster is in Tokyo. Copyright law varies by country even amongst Berne Convention signatories, so the situation for him might be different than anything posted above. If you need a real answer, you'll probably need to go to a Japanese copyright lawyer.
posted by grouse at 8:44 AM on October 7, 2011
posted by grouse at 8:44 AM on October 7, 2011
A tree itself is not copyrighted: but you would have to go out to a public display or public park and do your own photograph/drawing to use for your woodblock. As others have stated, any existing image, sculpture, etc. will have a copyright.
However, you're overlooking a great resource of free stock images. I would suggest this site for one: http://www.sxc.hu/ You can search for "bonsai" and should come up with several options. SOME of the photographers have a "no commercial" use stipulation, so pay attention to that if this is a commercial venture of yours. But even then, because you're not using the actual photograph and it will be just the shape that it transferred to your work, you might try asking if this would be allowed.
posted by Eicats at 10:48 AM on October 7, 2011
However, you're overlooking a great resource of free stock images. I would suggest this site for one: http://www.sxc.hu/ You can search for "bonsai" and should come up with several options. SOME of the photographers have a "no commercial" use stipulation, so pay attention to that if this is a commercial venture of yours. But even then, because you're not using the actual photograph and it will be just the shape that it transferred to your work, you might try asking if this would be allowed.
posted by Eicats at 10:48 AM on October 7, 2011
That's not copyright, that's trademark.
posted by grouse at 2:27 PM on October 7, 2011 [1 favorite]
posted by grouse at 2:27 PM on October 7, 2011 [1 favorite]
Response by poster: Thanks to everybody who dropped in here to leave ideas. None of this project is decided yet, but these thoughts will all go into the mix as this thing moves forward ...
posted by woodblock100 at 10:28 PM on October 7, 2011
posted by woodblock100 at 10:28 PM on October 7, 2011
This thread is closed to new comments.
Spend a day emailing bonsai owners on flickr or in a bonsai community, I'm sure you'd have no shortage of owners who would be flattered and happy to let you made woodblocks of their trees.
posted by Jairus at 9:10 PM on October 6, 2011