ANSTHRLD - CoH web page: what should be on it?

[Jodi McMaster]

Amanda Lewanski wrote:
> 
> Kathleen O'Brien wrote:
> 
> > [Hmmm... she thinks, reading over Daniel's discussion again.  "Would the
> > _submitter_ or the _artist_ need to give a release?  Or both?  What a mess.
> 
> As the artist on zillions (okay, okay, but definitely a lot) of people's
> submission forms, I'd say the artist.

I can't stand it; I'm gonna jump in.  The safe answer: both.  If you
were to get into litigation about it, the first question would be
whether it was original enough to merit protection.  There's some case
law that discusses specific fact situations where the art did not merit
protection, like a conventional depiction of a pinwheel or a childlike
drawing of a boat, because it would be the visual equivalent of trying
to copyright a cliched phrase.  No go.  Heraldry, as we do it, is
arguably in the non-protected category because we tend to only register
stuff that was already done.  However, I would never advise a client to
rely on that particular loophole--the cases are too erratic to make a
good prediction.

Now, if the work is original enough to merit protection, then the
problem in the artist v. submitter is whether the work was "for hire."
Ordinarily copyright belongs to the creator of the work, but a rather
large exception of work for hire exists.  If the artist (or writer or
camera operator) is doing so at the direction of their employer, then
the work (and the copyright) belongs to the employer rather than the
employee.  Of course there's lots of grey here, so even in a less
oddball sitaution I wouldn't predict the outcome.  Here, if there's no
consideration exchanged (money or barter), it could be considered the
artist's, but there's a good argument that since the work is drawn with
the idea that it is for the use of the submitter, both for the
submission and in the future, that it could be the submitter.  Being
your typical weasel, I won't predict the outcome...but I will say that
I'd get permissions from both.

AElfwyn, recovering attorney
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