What is the line in using geometry based art as inspiration or considered derivative art?

Question

ORPHAN WORK

During my free time, I decided to make a Naruto Fan Art Wallpaper. In my wallpaper I wanted to put itachi as the main subject. However, due to short schedule, I changed my mind to use his eyes instead.

Upon searching for 'inspiration' on how to put an eye as a main subject, I found a wallpaper on a wallpaper-showcase website with the author JTrilogy with no contact info, so I searched it on Google. There were reddit page with archive available with traces of design posts: poster, etc. (likely to be a designer). The page two however is unarchived and when visiting it, it says user has deleted the account.

Searching the image from Google Image (upload) brings back search to the original wallpaper showcase. I tried to contact the site admin, but he did not answer.

So, I have concluded that this work is orphan work.

SHOWCASE WEB: simpledesktops com/browse/desktops/2013/mar/13/cmeyek/

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ORIGINAL DESIGNS

From the original image, I can list 3 main object (geometries) from the original work.

1. The Main subject, the eye it self (perfect circle with CYM filling the circle's equally devided parts (120 degree) and a black perfect circle in the middle as a pupil; I AM REPLACING THIS WITH SHARINGGAN EYE)
2. The eye shades ( This eye shade is part of human which can be found anywhere; I think, this part cannot be copyrighted. In my original design there were no eye shade, instead I draw the whole eye with eye white to show that this is not a random ball but an eye; LATER I REMOVED IT AND ADDED SHADE LIKE MY INSPIRATION)
3. The triangle (This triangles is to fill the subject to look less boring, in my original design I also coincidentally put triangles but only to one of the side; I RECOLORED IT WITH OTHER COLOR)

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THE DILLEMA

We know that the main subject of the original art is the way artist put together CYMK to an EYE and tittled it CMeyeK.

We also know that two other subject is parts of human and geometry. However, I was afraid about the copyright (may or may not be copyrighted - no info) is applied in the combination of both.

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NOW

I am not trying to state that I originally 'design' this, nor do I want to dismiss the fact that this is JTrilogy's design. I have no problem in stating that this is inspired by JTrilogy. The problem is if this is considered derivative then I am screwed with copyrights issues. Also, I wanted to put CC License so people not making Dojutsu Wallpaper like mine since I might make more. I also dont want people showcase my wallpaper in an ads supported web to earn money.

I have recreated the whole think from scratch in Illustrator. The color in the other objects (shade, triangle, background, etc) has been changed to Itachi color scheme. The main subject is no longer CMeyeK but Itachi Mangekyo Sharinggan.

What do you guys think? Is this derivative or inspiration? Is the human parts and geometries (or the combination of them) ethical to copyright? Do you guys think the copyrighted part is just the CMeyeK?

IS THIS CONSIDERED DERRIVATIVE OR INSPIRATION?

-- i have made reasearch in this section and found Inspiration from existing works - where is the limit? but does not directly answer my question on a derivative/inspiration based on GEOMETRY or HUMAN PARTS or about Creative Common licensing my work.

Answer 1

1. Your inability to contact the designer has no baring on its copyright status.

2. The fact that the image uses geometry and a parts of the human body makes it no less copyrightable.

3. There are many Creative Commons licenses. Some require derivative works to use the same license as the original, some don't.

Without seeing your design it is hard to have an opinion. The design is a simple representation of an eye so you may be able to argue against it being a derivative work, this post demonstrates that it probably is though.

This is not legal advice. I am not a lawyer.

Answer 2

Personally, after further investigating, I believe the copyright ed part is the creativity on how artist designs the CMeyeK Eye ball.

The rest of the design, is I think, considered not only some geometrical shapes (triangles) , but also familiar symbol and design (eye as a whole). Because of this, those designs cannot be copyrighted according to 37 CFR 202.1 - Material not subject to copyright section (a):

§ 202.1 Material not subject to copyright.

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:

(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;

[24 FR 4956, June 18, 1959, as amended at 38 FR 3045, Feb. 1, 1973; 57 FR 6202, Feb. 21, 1992]

In the Car Credit City case, their geometrical logo that is much more complicated then this 'familiar' eye shape is rejected by copyright office because it is too simple

Even if the CCC logo was not too simple or too geometrical, Ms. Giroux concluded that the work did not contain a sufficient amount of original and creative artistic or graphic authorship upon which to support a copyright regristation. This is because the logo is representing letter C that belongs to public domain even if it is stylized in length, size, thickness, and orientation. (page 3)

Eventually, CCC does not get copyright, but they get their trademark.

If this answer is correct, I cannot CC License anyway because the eyeball is not mine, its from Naruto and the Eye shade + Triangles is geometrical object?