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I have some stock vector files from istock that I'd like to use as the starting point for a logo. I'd like to stress I wouldn't be using the original image in the logo - but using as a starting point to develop a new piece of work.
The license agreement states that you can't use the file as a logo - but what about work created using bits from the vector file?
Many thanks in advance for all replies.
According to the U.S. copyright act:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”
The question is, of course, how far you have to remove it from the original work for it to be considered "derivative". The wikipedia article on Derivative Work is pretty good (and long). What I've always been told is that if it's clear that the new work is different from the original it's usually considered "derivative".
Another standard that's considered is "transformativeness" (again, see the wikipedia article for a more exhaustive explanation). Are you bringing a new vision or opinion of the original?
If you're incorporating elements of stock photos it's probably safer to buy them - in the long run they're not that expensive. If you're using them as a starting point and it's clear that your work is largely different from the original you are probably okay. Keep in mind that I'm not a lawyer and I haven't seen what you're trying to do so these comments are general points.
The safest bet is not to use the original file in the building of a derivative. If you were inspired by another person's art to create something, great! Now create a new and different version with that inspiration from scratch.
Make your own sketch on a blank canvas with that spark of inspiration in mind. At the most, use a piece here or there from the original as a template that you trace over for proportion reference.
Bottom line:
Never use pieces of the original file to create your unlicensed derivative.
Sorry I didn't see this sooner. I am an intellectual property attorney, and my practice focuses entirely on copyright and trademark issues. Since I am an attorney and you are not my client, I am unable to provide legal advice to you.
However, I will comment that the above answers, while thoughtful and well-intentioned, are not accurate statements, at least with respect to U.S. Copyright Law. If you work with this type of content on a regular basis, you should retain an IP attorney to explain the issues to you and ensure that you are protected. This is a highly fact-intensive inquiry, which cannot be answered in a vacuum. Other brief, high-level notes:
Again, I recommend consulting an attorney if this is in your usual scope of work. It's too risky to take advice from anonymous people online (or Wikipedia).
Good luck!
Disclaimer: I am not a lawyer. You need to consult a lawyer to get a definitive answer.
You're now getting into a very hazy area of copyright law, and copyright law doesn't do much to help. There are a few ways of looking at this.
It's really up to you to decide what is most appropriate for your situation and what you are most comfortable with. Reread the agreement to see if there is some "derivatives works" clause, and act accordingly. Otherwise, I would just go with the third option.
The dozen or more stock image companies that I buy from or have bought from STRICTLY forbid using their content for corporate ID/logos, probably because logos are protected by trademark, not copyright, which requires design entirely owned by the party filing the trademark registration. No content owned by another is allowed. That excludes all stock images, clip art, and fonts not in the public domain.
Also of note is that if you use any content other than your own in your design, you can never own the copyright outright. That will make it difficult register with the copyright office and next to impossible to sue for damages if somebody rips off your design and makes a million bucks on products containing your stolen design instead of you.
And, FYI: using ANY portion of an image owned by someone else is NOT considered fair use if the intent is to profit from the end result.
CAVEAT: iStockphoto is PARTICULARLY strict about their terms of use, especially the logo issue. And because iStock is owned by Getty Images, who prosecutes TOU offenders as a profit-generating business model, it is not a good idea to run afoul of their overbearing rules.
Using a portion of an image owned by someone else to derive another image would be a question of derivative work, not of fair use. Wikipedia indicates that to be a derivative work, "The transformation, modification or adaptation of the work must be substantial and bear its author's personality to be original and thus protected by copyright." Starting with the original image then using a program like Inkscape to trace vectors, then saving only the vectors would be an a substantial modification but it couldn't be construed as having its author's personality; its author is Inkscape. When you start editing and playing with those vectors and spend hours making it just right, then that bears your personality a hell of a lot more than a Mona Lisa with a mustache; that's a derivative work. I don't know, I'm not a lawyer, but it seems like the scenario described in the OP is likely to be derivative work.
Y'know... they sell you and charge you a lot of money in the first place for a bunch of images and vectors. They sell you on the "extended license" as well. All in, you might be dropping hundreds or even thousands of dollars on the licensing to be "safe" and "above board" and "honest. But then you get rug pulled out from under you for whatever reason. And, in the end, it would have been cheaper just to hire a darn artist to deliver exactly what you wanted in the first place.
