File puptcrit/puptcrit.0810, message 132

Date: Wed, 8 Oct 2008 11:31:45 -0400
Subject: Re: [Puptcrit] Patent Infringement

Too many possible variables for just one or two answers. And I'm not a 
lawyer of any kind, so this is more what I would think were ethics and 
not law.

On Oct 7, 2008, at 6:06 PM, Ed Atkeson wrote:

> You lost me on the last paragraph. I don't get your point about an 
> artist not being frustrated when someone buys her creation for casual
> use and then starts a business and makes a ton of money with it. And 
> how would that cause more creativity?
   Casual use? Who said anything about casual use? I was working under 
the idea that if one was already a puppeteer or performing company 
(puppet, theater, whatever) and hired someone to build a puppet for 
them there is already an understanding that it will be use for more 
than casual use. If they then made a ton of money with it, it no doubt 
would be because of the other talents brought forth. The creator of the 
puppet should (after getting over the grumbling and jealousy) be 
inspired by where his creation has gone and hopefully produce more 
similar work. Or even dissimilar work. Think, creating a puppet/figure 
for a Vent who then makes it big.
   This is obviously not the same as if the performer were to take that 
figure that they made famous, and without the permission of or any sort 
of payment to the original creator/company, have dolls, home puppets, 
and all sorts of other paraphernalia made of that puppet that they then 
sell. Unless of course the creator signed off on future rights. But the 
rights issue can get foggy there, depending on how and why the puppet 
was created. Created exclusively for you? Well you may own all the 
rights. Created for a general market, but becomes a famous figure in 
your rep? I would think you would have limited rights, but some fair 
use rights.

> I think the creator would retain some rights. no? What if the puppet 
> was used in an ad or tv series, or even a bookcover. Wouldn't the
> creator retain negotiating rights in those cases? rights to a royalty?
   I would think that, in the case where someone (builder/creator) 
created a puppet for someone else (performer), for hire, the performer 
would have all performance rights, etc. I doubt there would be any 
further fees to the builder/creator. Any such rights would have to be 
negotiated in advance, and I doubt that a performer with a decent 
business sense would sign a contract that gave back to the creator 
additional money. I can't see that happening to the creator of puppets 
in most TV series, movies, Vegas, Broadway, etc.( Exception apply.) 
Hopefully, though, the buider/creator does get proper credit in 
programs, credits, etc.
   It would be a different story if someone bought your puppet, or had a 
copy of your puppet made, and then did your act, or even their own act 
with your puppet without any understanding that the puppet was being 
bought/copied for performance purposes. For instance, I could not buy, 
make, or have made a Kermit or Madam puppet and then do an act with it. 
The creators of those figures (or someone else) now owns the rights.

> Sort of like a painting. You can buy a painting but you don't own the 
> right to reproduce it in an ad or even a magazine article. The artist
> must sign additional rights over to the buyer who usually pays more 
> for those rights.
   Not at all like a painting, or at least not much like a painting. The 
puppet, if it is built for performance, is going to be seen in and 
possibly featured in shows, publicity, pr, etc. It is a performance 
object/tool. The art of the puppet is usually not complete without the 
performer. A painting is a finished work of art.
   One could not reproduce the puppet via copies, plans, etc. just 
because you bought the puppet any more than you could buy a hammer, use 
it in carpentry, and then reproduce the hammer as your own product. You 
could have the hammer in a photo in a magazine though. I doubt you'd 
need permission from the manufacturer. Or perhaps more accurately a 
musical instrument, say a violin. The quality of the work of the violin 
maker (or puppet maker) plays a part in the success, no doubt, but I 
don't think they get royalties from each concert where the instrument 
is used.
   The difference is using a puppet as a tool/instrument, or using it as 
a product.
   Please don't go down the road of puppet as art, it's not just a tool, 
etc. Those are valid but separate issues and discussions. For the sake 
of clarity and brevity I've left that part out.

> In U.S. copyright law additional rights to an artwork remain with the 
> artist unless they are transferred by a signed statement.
   Again, I hold that in this case, even though the builder/creator has 
created some art, it has been done for hire and the art is not complete 
without the performing artist. The builder/creator has limited rights 
and the amount of those rights could go either way in court depending 
on how much is specified in the original agreement (which hopefully is 
in writing) and the terms of sale. It is not safe to assume rights.
   I think the whole Howdy Doody history shows this clearly.

> Somebody out there knows about this, I'm not in the business. But it 
> seems like a puppet sale would be the same as any other art sale. The
> assumed use of the puppet at the time of sale would be important, 
> seems to me.
   The puppet sale, if sold for performance and not display, is more 
like the sale of an instrument than a work of art in the sense of a 
sculpture or painting. I would think that the assumed use of that 
puppet would be for the puppeteer to be as successful as possible with 
that puppet. Its use would be to make the puppeteer, and the puppet 
they have brought to life, famous. If they do strike it big would it be 
right for the puppet builder/creator to then say "Well, I didn't think 
you were going to make it that big. I want more money for the thing you 
already bought."? I think not.
   If you are the Steinway or Stradivarius of puppet building, you are 
going to sell by the quality of your product, not by what is done with 
it after the sale. Some will buy from you to display or just to own 
that work of art you create. Most will buy with the intent of using 
that instrument to be a better performing artist. If someone is 
successful using your instrument, you will take pride in their success 
and the part your product played in it. I would think this would spur 
more creativity on your part, even if it is to keep creating the same 
product with small improvements.


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