I am not a lawyer, but I have worked with some in the tech industry. You should consult with one if you are going to produce something that is SO similar that it cannot be distinguished from the original.

From http://www.gillhams.com/dict/copyright.cfm (I believe this UK based firm operates globally)
"Copyright is one of the central branches of the law of intellectual property. The law of copyright gives an owner the exclusive right to prevent reproduction of certain works by others. Copyright provides owners with some element of control over the exploitation of their works. Copyright protection applies automatically from the moment the work comes into existence and subsists usually for at least 50 years. Copyright does not extend to ideas, or schemes, or systems or methods; it is confined to their expression - that is the form in which they appear either on a page or the form in which they are otherwise recorded."

For US specific information: http://www.copyright.gov/circs/circ1.html#wci

I can't recall the exact formula for factoring this, but I believe that you would have to have 70% original material in the object in question to have it ranked as an original work.

Now, if you see an object or a picture of an object, and model it on your own, using your own tools, and your own skills, it is in fact a NEW ORIGINAL. As long as it is not an exact copy of the original, it is in itself, unique. Otherwise, every model of every real life object could be considered a breach of copyright.

If you create for instance, a starship that consists of a saucer, a series of tubes, and arrange them in such away that they resemble StarTrek-style ships, well then you are moving into trademark territory. If you decide "Hey, I'm going to call this tube and saucer ship ENTERPRISE" then you are cooking up a nice little litigation stew.

In my opinion (and it is only an opinion) it is fair use to take inspiration from the objects, pictures and ideas that you find wherever you find them. Nintendo does not have exclusive rights to all likenesses of a fat little Italian guy with a moustache. Just make him somewhat unique, don't call him Mario, and don't mimic the gameplay and events that Mario has gone through, and you can pretty much do what you will with the idea. IDEAS are not copyrighted. They can be pateneted, though, if sufficiently documented.

Now, if you take a model, re-skin it, and call it your own, you again have a problem. Take the model apart, make your own structure to create the model, generate a skin for it on your own, and you have a new model. It's shape and construction are not the same.

Copyright is a sticky, tricky and confusing topic. I can't stress enough the importance of giving credit where credit is due, even if for inspiration, and for creating your own models. Take lessons where ever you find them, inspiration from all who inspire, and money from anyone who dares to do anything similar!

Good links:
http://www.ncte.org/pubs/chron/highlights%5C122872.htm
http://www.lawmart.com/searches/difference.htm

Just my 2¢ (Wish I could trademark that little penny symbol...)

I consider this a serious issue for all us game developers and thus have forwarded all our questions to my IP lawyer for official advice. This should clear up the issue a bit.
Until I get the response, here are my interpretations and opinions on US Copyright Law:

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But, you can indeed handpaint a picture of mario and sell it as your own artwork.

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I guarantee you that you can't. Remember, the basis of Copyright law is to protect the copyright owners ability to make money off their product and protect the IP reputation. In your example, if you handpaint a character that is clearly based on Mario, then people may come to you instead of Nintendo to buy Mario stuff (hurts Nintendos ability to make money) and based on your artistic skills, people might think less of the Mario character because you drew him poorly (hurts the Nintendo's reputation).

Here's an example from last year on what Nintendo considers infringement:

Nintendo warns Wiki

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This has been done by at least one notorius photographer, and he hasnt been stopped legally.

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Just because the original artist decided not to enforce his copyright does not mean that there wasn't infringement. Since a photograph of another photograph is clearly a copy, then this is infringment IMO. If this was used for a newspaper article or educational, it would fall under "fair use" and that is legal.

Beside, here you have clearly contradicted yourself for a photograph of a photograph is clearly a carbon-copy through mechanical means and yet you claim this is not infringement.

Consider this personal example, Matt: You posted hand drawings on the boards a while back. By your reasoning, it would be legal for me to take a photograph of my screen with that picture displayed, crop all or any portion of my photograph so that only your hand drawing shows, transfer this to a t-shirt, and sell this t-shirt with your drawing on it with 100% of the profits coming to me. Doesn't this sound unfair to you?

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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.

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US Copyright Office Infringement FAQ

US Copyright law makes no such distinction about how a copy is made, only that the copy exists.

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.

I'm really sure you have an IP lawyer on retainer..

Although, you are probably right in the circumstances discussed above, however, what about something like this:

you take an artistic photo of posters on a building wall in a city street. It's your photograph of a real place, but conaints images that are probably copyrighted..what's the answer here, are you infringing on the indivudual copyrights?

This seems absurd, because it then limits what part of the world an artist (or anyone) can document/represent.

The same argument can be extended I think, to a more general case.

How would one copyright there work???