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Thomas Swartz
Thomas Swartz, Lawyer
Category: Intellectual Property Law
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Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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I am a writer. Several years ago I purchased a figurine of

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I am a writer. Several years ago I purchased a figurine of a fairy with the name "Rose". The fairy had certain distinct markings on it which was to imply that she was a particular type of fairy. While planning the plot for my next story, I decided that I'd like to use the fairy in the story and proceeded to locate the copyright holder of the figurine. During my search, however, I learned that the figurine was based upon a person in a painting done by someone else. Must I contact both those who produced the figurine and the artist of the painting for permission to use in my story?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Thomas Swartz replied 1 year ago.
Hello JACUSTOMER,

Yes, it would be wise to do so. The figurine and your story would be considered a "derivative work" based on the painting. Under the copyright law the owner of a copyright to a particular work has the exclusive right to make "derivative works" based on the original copyrighted work. So, in this case the artist who created the painting would have the exclusive right to create "derivative works" based on his painting, and this would include a story using the image and "persona" of the fairy you wish to use.

The creator of the figurine may or may not have gotten permission from the artist who created the painting. If he didn't, he could potentially face a copyright infringement suit from the artist.

And the same could potentially happen to you. So, it would be wise just to protect yourself to get permission from the artist to use the fairy in your story.

Thomas
Thomas Swartz, Lawyer
Satisfied Customers: 2823
Experience: Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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