Thursday, August 7, 2008

Can you claim rights to an animal's appearance?


Dear Rich: I have a question. I read about an artist who is trying to get paid by the State of California. They're using his painting of a whale on license plates. I thought all images of animals were in the public domain. I'm interested because I'm a crafts artist and I'd like to replicate certain animal images on jewelry. I'm so glad you asked. I've written about one aspect of your question -- the copyrightability of art that borrows from nature -- in a Nolo article, so check that out. If you're too busy to get through the whole thing, I can summarize it by saying that the natural appearance of birds, bees, flowers, and the likeare in the public domain. So if you're making wax candles that look exactly like a corn cob, or animal heads that look exactly like a leopard, you'll have a hard time claiming copyright.
But if you're going beyond an exact replication of an animal -- for example, painting an inspiring shot of a whale's tail as the animal dives into the water, or creating a whimsical bespectacled penguin that also understands IP law, your original expression is protectable and you can stop others from copying.
In regard to the whale license plate, the bigger issue seems to be that the artist made a handshake deal with the State of California. (Who knew states had hands?) As readers of the Dear Rich blog know, all arrangements transferring intellectual property should be in writing. Lacking any paperwork, the state's got a weak defense.
BTW, we almost quoted directly from the Associated Press story on the subject. As you're probably aware, there's no way the The Dear Rich blog is going to move beyond its current obscurity without being publicly chased by a big-time plaintiff (and the AP is a tempting, though unglamorous target). Alas, we decided to hold out for Mr. Right.