Hi Mary, welcome to the forum.

My two cents. Did she pay you for the 5 hours you spent creating the image? If so it would belong to her I would think. What did your contract say?

Tell her that the image you created for her wedding invite is not royalty free and that if she want sole use of it she will have to buy the copyright from you.

Hi Kool!

Thanks for the welcome. i should've posted that info...no, she didn't pay me for the 5 hours. the 5 hours i spent was above and beyond what i normally do in terms of wedding invites. stupid me was being anal because i want everything to be perfect and i wanted these invites to be perfect, as well. she sent me a picture of a manzanita tree, a really bad picture. from that picture, i spent 5 hours drawing an image that could be used as a watermark on her wedding invites. she has since paid for her wedding invitations and the charge was only for the usual + customary design effort i put into wedding invitations. i had actually designed 3 mock ups for her (after receiving a signed contract and a deposit for the design time of the mock ups) and THEN she decided to change her colors and she wanted this tree. she emailed me a pic and expected me to use it. i did it without charging her and i mentioned to her the lenth of time it took and that i wasn't charging her and now she wants it???? for free?????

Whups. Is that HER photo? She took it herself? And you used HER photo? At least it appears that way when I overlay the two; there are distinct similarities in the lower branches. And many of the upper branches.

If you used HER photo to create your artwork, you have infringed on HER copyrighted photo by creating a derivative work.

You may want to work it out.

^ dangerous ground, as PD said. Though you can probably charge her for the 5 hours you spent on vectorizing it.

Welcome to GDF, by the way.

Well, it's certainly not copyright infringement if you're using an image they supplied for a project in that project, even if you altered it. But you can't use that image anyplace else.

And while it is a derivative work of the original photo, there's enough work involved that it is a distinct work...

The practical upshot of which is that neither of you can use it for anything without the permission of the other.

Of course, you may not want to use it yourself, in which case, charge away.

thanks guys. it's actually not her photo. it's a photo taken by the florist and i emailed the florist before i even worked on it to get her permission and of course, she didn't care what i did with it. i spent hours trying to cut out that leather jacket in the background. i think i am mostly annoyed because of this particular client's bad attitude. it's my fault...i didn't nip it in the bud from the beginning like i should have. lesson learned.

i'm just gonna give her the damn picture and be done with it. i think she is going to use it to make her wedding programs because when i told her how much i charged for the programs, she cringed. oh well.

thanks.

Well, I certainly think you'd be in the right to either charge her to buy the copyrights, or charge her royalties on anything she puts it in.

Unfortunately, it's too late to charge her for the 5 hours to vectorize, as you didn't draw that up in your contract. Which means that the artwork becomes part of your "stock", and can then be sold and used as stock.

Had it been HER photo, I don't care how much you alter it or how much work you put into it, it's still derivative. It's not infringement to copy a client owned/supplied photo, but you can't really claim your own copyright after the fact. The owner of the photo has to grant you that permission (in this case the florist, who has).

Changing a percentage of an original work does not make it your own. That's a myth. There are enough overlay similarities in the artwork that had the client owned the photo, she'd have a case for owning the artwork as well.

Using photos as reference images is one thing - every Illustrator has a photo morgue - but to actually trace something is quite another.

Yes it's a derivative work. What I'm saying, though, is that you also have rights to the work you did. They are just not rights that are independent of the original work.

You cannot use that derivative work for anything without the permission of the owner of the original work. However, if your changes are suignificant enough that it constitutes a distinct work, they also cannot use it without your permission.

Sure it's a myth to say that because you have altered a work, the new version is yours. However, it is equally untrue to say that you have no rights with respect to a derivative work that you have created.

The only example of that logic I've seen is in book writing. If you use text from another book in your book, your copyright only covers the text you wrote, not the quoted text.

Art is a little grayer than that. It all depends on who the artist is — and who's in the jury that day...

Actually, the book thing's a different part of the mess that is copyright law. Using quotations in a book falls under fair use provisions (or, at least, if it doesn't, you'd better have permission to use that quote).

Their's no fair use here. This is clearly a derivative work.

But any "substantial" act of creation will lead to a copyright - even if it is based on a previous work (and the word substantial is a key part of the definition).

So, clearly just live tracing a picture ain't worth much. But if there is some substantial creative work put into something, then you have created a new copyrighted work that is a derivative of the previous work.

You do in fact own a copyright on that creation. But, that creation cannot be seperated from the original of which it is a derivative - so permission to use the derivative work cannot be given to someone who does not also have permission to use the original work.

What constitutes "substantial" is pretty much up to the jury.

It took you hours to cut out the leather jacket? But in all those hours you didn't notice it was a suit jacket

Here's my derivative: 5 minutes with Extensis Mask Pro.




Myself, I would have searched royalty free stock for something as basic as a branch tree against a sky, and something a lot easier to mask. Even if you had to pay some cash for this, there's no way it would be more than the cost of one hour of that masking work. Then, you also would retain control of the rights for additional design work as with most royalty free stock you can't just handover the rights to someone else to be create more work with.