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Scenario 1: Artist B buys a line image of a cat licenced on a stock image website by Artist A. (licence terms-free to distribute, modify but must credit original artist). Artist B colours it and then places it on a creative commons clipart website without crediting the original artist. (Image can be used free for commercial use except merchandising, no accreditation required). Person C uses Artist B's image from the clipart website without the knowledge of Artist A. Is Person C infringing on Person A's copyright by using B's image? Is Person B allowed to post their image on the clipart website?

Scenario 2 Artist B uses Artist A's clipart to make their own version of the animal. They place this on a creative commons stock site-(free for commercial, no attribution required). Artist C uses Artist B's version in their own work, publishes and later finds that Artist B based their work on A's clipart. Artist A cannot be located and the work is only visible on a couple of free for personal use clipart websites. The work seems to be an orphan work. It cannot be ascertained if Artist B has permission to make the derivative. What is the legal position of Artist C (assuming no fair use/fair dealings)?

Thanks

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  • “Orphan work” has no legal basis…
    – user28517
    Aug 19, 2021 at 9:49
  • @Moo “Orphan work” is a frequently used term in discussions of copyright policy, although it is not a category that causes legal rights to change. Aug 19, 2021 at 13:42

2 Answers 2

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In both scenarios B is infringement on A's copyright by failing to comply with the license terms (no attribution). B therefore cannot grant the rights that B's posting claims to grant. C may not use B's work in reliance on B's license, since B did not have the rights to grant. A could issue a takedown against B's work or C's work, 9or could sue either for infringement. However, since C acted in good faith, damages awarded to A against C would probably be minimal, and most artists in A's position would not sue C.

Note that since C's work is also directly derivative of A's, C can probably comply with A's license simply by providing proper attribution to A. At that point, C would be in compliance, not infringing, and there would be no case against c for currant actions. In theory there could be a suit against C for past infringement, but this would be unlikely in practice unless there had been significant provable economic damage.

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In scenario 1, Artist C is violating Artist A's copyright conditions. He might be requested to remove his work from the public domain if A finds out. However he's unlikely to be sued directly, because the actual copyright infringement was done by Artist B, who didn't hold on to A's license and deliberately used an incompatible license for his derivative work. C was acting in good faith. B might even be liable for any damage done to C (i.e. missed income).

Scenario 2 isn't different, except that now C found out himself that B had been violating A's copyright/license terms. C's work still is technically violating A's copyright, but again he should probably sue B for the copyright violation.

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