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How can I legally give credit to an artist on Etsy for inspiration, while avoiding copyright infringement, when creating similar but non-identical work?
In the United States, copyright protection is automatic as soon as a work is created and fixed in a tangible form, such as a drawing on paper or a digital image on a computer.
Copyright infringement can occur even if the infringing work is not identical to the original work, as long as it is substantially similar and uses copyrightable elements of the original work.
Image credits and attribution are important, but they do not provide a legal defense against copyright infringement.
The only way to avoid copyright infringement is to create original work or obtain permission from the copyright owner.
The "fair use" doctrine allows limited use of copyrighted material without permission from the copyright owner in certain circumstances, such as for purposes of criticism, commentary, news reporting, teaching, scholarship, or research.
Determining whether a particular use of copyrighted material qualifies as fair use is not always straightforward and requires consideration of several factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the market for the original work.
Seeking legal advice from an attorney or legal expert can help artists and creators understand their rights and obligations under copyright law and avoid potential copyright disputes or infringement claims.
Visual artists in the United States can register their works with the U.S.
Copyright Office to establish a public record of their copyright claim and to enhance their ability to enforce their rights in court.
The "first sale" doctrine allows the owner of a particular copy of a copyrighted work to sell, display, or dispose of that copy without seeking permission from the copyright owner, as long as the use does not conflict with the copyright owner's exclusive rights.
The "derivative works" doctrine allows artists and creators to create new works based on existing copyrighted works, as long as they obtain permission from the copyright owner and comply with certain legal requirements.
"Moral rights" are a category of intellectual property rights that protect an artist's reputation and integrity, allowing them to prevent distortion, mutilation, or modification of their work, even if they have transferred or licensed their copyrights to others.
The Visual Artists Rights Act (VARA) is a U.S.
federal law that recognizes and protects the moral rights of visual artists, including painters, sculptors, and photographers, in certain circumstances.
Under VARA, visual artists have the right to claim authorship of their works, prevent the use of their names in connection with works they did not create, and prevent the modification or destruction of their works in certain circumstances.
VARA applies to works created on or after June 1, 1991, and protects works that are original works of visual art, including paintings, drawings, prints, sculptures, and photographs.
VARA applies to works of visual art that are of "recognized stature," which means that they have been judged by experts in the field to be of "recognized stature" at the time of the infringing act.
VARA imposes certain obligations on the owners of works of visual art, such as providing notice to artists before modifying or destroying their works, giving artists the opportunity to preserve or document their works, and taking reasonable steps to protect works from damage or destruction.
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