Question Posed:

1) If I take a photo of a copyrighted photo, who owns the copyright? So for example, can I take a photo of an Ansel Adams picture, put it on a T-shirt and sell it as my own and/or keep all profits?
2) Does copyright make any distinction as to HOW the copy was made? In other words, if I hand draw say Nintendo’s Mario character (without it being 70% original), does that give me copyright to use my hand-drawn mario? Is this different if I take a picture, have someone else do it, or use a Xerox machine?
3) Can you comment on this quote: “So yes, copyright is indeed flexible when it comes to actual artwork. You can copy whatever you want and sell it as your own work, as long as you didnt use mechanical measn to make a carbon copy of copyrighted art.”


Answer Given by Tom Humphrey of Woods, Herron, and Evans (Cincinnati, OH, USA):

A photo (or T-shirt) of a copyrighted work is what we call a derivative work of the original. The same is true of a hand-drawn rendering that is 70% original but 30% elements of the original. If there is any originality in the derivative work (lighting, color blending, the setting that the original is placed in, or more extensive elements) then there can be copyright protection in those original aspects that prevents anyone from copying them. However, the copyright rights in the original (photo, Mario character) includes the exclusive right to create derivative works. Hence, it is a copyright infringement to create a derivative work of a prior work if it is still in copyright. Statement (3) is clearly false in view of what I've explained above.

Note that there are also trademark issues with characters such as Mario (he is a trademark of Nintendo in addition to protected copyrighted work, just like Tony the Tiger, Toucan Sam, etc. etc.) that stand apart from copyright and create additional infringement problems in your scenario.