Right click, save. Done...Part Two


Did this design with a scanned and sized image from a Victorian era photograph violate a copyright...or not?

To quote my dear friend Tony Hayes: “Hey kettle, I’m pot and you’re black.” Copyright Tony Hayes

Or...call me guilty too...or not. According to one website, anything published before 1923 is in the public domain due to copyright expiration. So I'm more confused now than before!

Getting off of my soapbox today I’m here to admit that my assumption that cutting out paper images and repurposing or upcycling them in your artwork is okay is possibly incorrect. In fact if these images on the printed page may be protected and under copyright law it may be legally considered copyright infringement to cut them out and repurpose them. It’s a tricky thing and I spent a good few hours on the internet reading about collage artists and copyrights yesterday. There have been cases where a derivative work (a work that utilizes other artwork to create a distinctly new artwork) has been judged to be fair use, there’s a big one right now with Shepard Fairy and his Hope poster of Obama made from a manipulated and silk screened version of an AP protected image that should be of interest to all artists. I need to dig deeper and possibly reconfigure my work because I believe deeply in the rights of artists and I don’t like stealing.

So I may be guilty too, though I'm not sure. Even with due diligence many of us may be guilty without knowing it because a source that sold us ‘permission free images’ may be incorrect about that assumption. Copyright protection is 100 years in the and 70 in the UK, BUT those copyrights can be renewed and the other half of that is that if a work was unpublished the copyright protection extends for the entirety of the artist’s life plus 70 years. If a copyright protected work was published with notice between 1923 and 1963 and the copyright was not renewed, it's public domain or if a work was published between 1923 and 1977 without a copyright notice it's public domain. Can you see where this gets stickier and stickier? So for collage, mixed media and assemblage artists in particular, there is a lot to consider. This is such a key topic with the huge surge in altered arts and upcycling. I’d like to think that a lot of folks out there just don’t know they’re breaking the rules, it’s so complex and nuanced, but the flip side of that is that there are plenty of folks who do know and simply don’t care. I am going to effort to be sure I’m not breaking the law or infringing on the rights of my fellow artists.

I’ll keep this topic as an ongoing dialog here and when I discover new things, I’ll let you know and if you find things out or have insight into this topic, please let all of us know by leaving comments here at my blog. I’m hoping that we can, as a community of creative people, educate ourselves and others.

Now I have developed some new questions based on what I’ve discovered. I’m hoping to get answers from a copyright/trademark lawyer in the near future and I’ll share them here when I do.

What is upcycling trash? What is copyright infringement? What is permission free? How do we differentiate?

If it’s not okay to cut images out of copyright protected books or magazines and use them in collages or artwork, is it okay to use a soda can or a bottle cap or a box or package with logos or copyright protected images on it? If I’ve purchased this physical item, is it entirely mine to use as I see fit and resell if I should choose? Is it okay to use any section of say a Coke can that shows their registered logo? Can I repurpose these things or is it infringement? Is upcycling of any item with copyright protected logos or images actually copyright infringement?


How does a mixed media artist determine percentages of images they’re using compared to the finished design when creating a ‘derivative work’ if a certain percentage is in fact acceptable? (There is a percentage that is acceptable, but how do we determine that?) What exactly is ‘fair use? And how is it defined?

Can I physically cut a copyright protected image out of a magazine or book and use it in my art for personal use? Is there really a ‘personal use’ protection?

If I take a copyright protected toy or other physical item that I’ve purchased and I make jewelry from it for profit, am I infringing on a copyright?

Can I upcycle a tag from clothing I’ve purchased and resell it?

Can I stamp something on chipboard using a copyright protected rubber stamp and sell it?

Keep thinking on this and you start to realize it’s infinite, convoluted, complicated and difficult.

If Andy Warhol could sell a painting of a silkscreen of a picture of a Campbell’s soup can, what are the rules and how do you know you’re not breaking them?

My mind is reeling...is yours?

And to follow up with the seller on eBay who prompted my inquiries into copyrights, I visited her shop and discovered she’s also selling Marilyn Monroe images she’s cut into circles AND copyright protected images she’s made into bottle cap jewelry she sells online. She has a disclaimer on her auctions and here’s what it says: “With all of my images you are paying for my workmanship & time to format, edit & cut images. You are not paying for the actual image”

Uh, really? Huh. Then why not use images that aren’t under copyright?

The Monroe estate is diligent and she will be caught. What’s sad is how thoroughly she’s rationalized this activity and that she’s done this by dialoguing with other eBay sellers. So they’re all complicit in this kind of activity.

I’m soul searching and I hope to find further illumination and more than that I hope to open a dialog among artists so we can all become enlightened on these complicated issues.

Websites with info for collage, altered arts, assemblage and mixed media artists and a lot more food for thought:
Funny Strange

Wiki

Cornell University Copyright Information

Copyright Term and the Public Domain

Warmly,
Madge

29 comments:

miscellanea said...

Copyright law is a truly mindboggling thing and I wish there were more hard and fast rules, but companies like Disney and celebrity estates are certainly muddying the waters. I won't try to discuss what the actual law IS--IANAL nor do I play one on TV--but I wish it worked like this:
- For personal use, do whatever you want.
- Every copyright expires after the lifetime of the artist+50 years. Realistically, that gives me and my immediate heirs an opportunity to profit off my work.

Ricë said in your previous post on this issue:
"oh, they can argue that it's collage or whatever and that that's a valid art form, yada, yada, yada, but you know good and well they haven't studied collage, haven't really thought about what collage IS. what they're doing is taking the quick-and-easy way to acquiring images."
In the case of someone utilizing images of famous/public figures for merchandising, I would agree this is true--they are merely cashing in on that figure or that image. However, as someone WHO does know a bit about collage, I think our current interpretation of copyright law for collage artists does need to be broadened. The works of Hannah Hoch, Romare Bearden, Richard Hamilton, Martha Rosler, Robert Rauschenberg, and many others benefited by being able to use images from contemporary magazines and media. They were utilizing those images to comment on them and on the media, not using a pair of scissors or a circle punch to achieve profit.

Margot Potter said...

Miscellanea

Very well stated and lots of good food for thought. I agree about these collage artists you've mentioned and there is precedent in those cases for using copyright protected images to make a statement. I have done that in my work, and now I'm not sure that was okay.

Let's keep a dialogue open. I want to learn more and share that in our community so that we can be informed and educated.

Best,
Madge

TesoriTrovati said...

Good stuff, Miss Margot.
The first time I thought about this was last spring when it was roiling about the blogdom. Someone wrote about the fact that she creates all her own stamps for her images because there are copyrights on most rubber stamps. That floored me. I wondered for what purpose I could use a rubber stamp. What if I use it on a metal piece but it is one 1/2" portion and the detail is unrecognizable and then it is merely a texture to the piece...am I stealing? I wouldn't want to do that. I did purchase some cds with vintage pictures from an Etsy seller about 4 years ago, never got around to using them, but now I wonder if I can or should. And I came across many old images on Flickr recently that indicated they were free to use given the dates. This is a sticky subject. My BIL is a patent attorney for a huge law firm specializing in intellectual property, I will have to ask him what he thinks of these questions you pose.
As always you are so very thoughtful and conscientious and that speaks to your character, Miss Madge.
Thank you for making me think today.
Enjoy the day!
Erin

Anonymous said...

> anything published before 1923 is in the public domain due to copyright expiration

Anything first published before 1923 is in the public domain in the US, yes. After that, for published works, it's life of the author + 70 years (or publication + 95 years if it's a work made for hire). That's the short version; the long version is pretty horrifically complicated.

> Is it okay to use any section of say a Coke can that shows their registered logo?

You're confusing trademark and copyright law. The Coke logo itself is uncopyrightable in the United States (it's just text). At least trademark law is quite predictable: don't use trademarks in any context that would dilute their trademark, or that might suggest that your work is endorsed by them. (Yup, it's a lot more complicated than that, but trademarks aren't a "right" so much as they are protection for consumers.)

> What exactly is ‘fair use? And how is it defined?

There's only nine people in the world who can tell you what fair use is and what it's not: Supreme Court judges, who are free to make stuff up at will (and quite often do, cf. Bridgeport v. Dimension). There's no way of knowing for certain, in advance, if some remixing of a copyrighted work is illegal or not. Though as Misc above pointed out, personal use is pretty much covered.

> Keep thinking on this and you start to realize it’s infinite, convoluted, complicated and difficult.

Yes. Yes it is. :)

Margot Potter said...

Erin

Thanks for your thoughtful comments! I believe that FlickR has a large database of public domain images and they are cleared. I think that's a safe source, but I'm not a lawyer!

As for rubber stamps...I've published lots of projects featuring them with attribution so the company hopefully generates sales which is an advertising arrangement since many of the stamps were given to me to use in my work, but for retail sale of goods...that may be a different egg.

Keep us posted!

Cheers,
Madge

Margot Potter said...

Anonymous

Thank you! Valuable information and food for thought. I'm digging deeper and I hope to have some modicum of clarity...but I don't think it will ever be completely clear.

Best
Margot

Geralyn Gray said...

This is something that has always interested me. I love victorian scrap and old postcard especially. My biggest fear is I am doing something wrong by reprinting it embellishing it and selling it on a local scale. I will never forget seeing a story on tv how Disney will sue preschools if they use images of Disney on their walls....my kids go to Art School so they saw a movie on copyrights the first day of school. I think with the internet and our exposure to so many images we feel all images are free.....music being a big concern here too. Fear of being sued and creating from your favorite images.......mmmm art even has its limits......the eye of the beholder.......I don't know I just hate that we have that fear......I always thought it was safe to use any image more than 100 years old and I have been collecting it for a while now.

Ele at abitofpinkheaven said...

Great info. It is complicated, but I always say use common sense and if it doesn't feel right, don't do it. Thanks for the visit. I will be checking back with you.

Kathy Cano-Murillo, The Crafty Chica said...

a few years ago we started seeing patrick's dia de los muertos illos popping up all over ebay and etsy, they came from a commision he did for a news site. i wrote these people and they said they got it from a copyright free disc. it took a year but i finally nailed down the guy, he was from england and lifted the images fromthe site and told me they were copyright free and wanted to sell me gobs of puttons with the images. then i told who iwas and he apologized and said he was really poor and hadnt made any money off of them. next thing i knew the email address no longer worked!

bottom line - this is a challenge to everyone to take drawing classes so we csnmake out own images. that is what we have been moving toward (patrick and i) for several years. the only one we ever use any more is frida, and even that is not right.

if we can all learn to draw our own images, think of how much more exclusive our work will be!!

Margot Potter said...

Geralyn

I also collect and use Victorian imagery in my work. I think based on what I've discovered, it's okay, but I'm still not clear.

I'll keep everyone posted!

Best
Margot

Margot Potter said...

Ele

Love your work and your blog. Yes, I think that's a good M.O.

Cheers,
Madge

Margot Potter said...

Chica

Yes, I think it'd be great to draw your own. I have and do use my own sketches in my work, but I still have a deep and abiding affinity for the imagery from the Victorian and Edwardian eras and I find it compelling to use in my collage jewelry and designs. I'm still figuring it all out and I can't believe the story about Patrick's work.

Frida's images are definitely under copyright and her estate told me they are not free to use. Just an FYI.

Thank you so much for being a part of this discussion, I think this is important stuff.

Cheers,
Madge

Claire Vorauer said...

Kathy is 100% right. I represent my sister, www.annmunson.com in the licensing world. Her collage is now made up of stamped and painted papers that WE make exclusively - we make the stamps we mix the colors we paint the designs. And you know what - they're the best work she's ever done. We used to use Dover or vintage papers, but after checking with 3 IP lawyers - they all stressed to the highest degree to use only 100% original designs. Who gets to judge where we cross the line between sue-happy lawyers and protecting others creativity? It's an area greyer than the skies in Seattle.

Andrew Thornton said...

I had a collage class with the delightful Victoria Kan. She has been a professional illustrator, teacher, and collage artist for years.

Basically, she said in a 20 something page handout that if there were any question in your mind, then it's probably not acceptable to use. If something is immediately recognized as being the property of someone else and no permission has been given, then it's subject to lawsuit.

But this is not the end! Why not create an original work or completely modify the image? Instead of using old pictures of ladies in dresses, why not have a photo-shoot and create your own "vintage" photos that you know without a doubt you have the ownership of? There's a million ways to generate content.

Good luck! And try not to worry about it too much!

(Are you going to be in Tucson this year?)

Margot Potter said...
This comment has been removed by the author.
Margot Potter said...

Claire

You make excellent points and points worth considering.

I have a slightly different career than your sister, but if I were licensing and mass producing my art I'd be damn sure to have my ducks in a row.

Cheers,
Madge

Margot Potter said...

Andrew

I hear you...but there's another side to this. I have been collecting oddities, ephemera, old letters, images and bits of things that are captured moments in time and space. It is my own form of archeology and when I create art using these things I am repurposing and reimaginging them and I am attempting to create a dialog. I hate to see these lovely images fade away...so I embrace them in my work.

I'm just trying to make sure that I'm not screwing anyone over by my desire to celebrate and create a bridge to the past.

xoxo
Madge

Margot Potter said...

Oh and Andrew I won't be in Tucson this year. It's not in the budget and I refuse to ever miss my daughter's birthday, which falls mid-week. Maybe next year! Have a great show!

xoxo
Madge

Tam Sesto said...

What about quotes that are attributed to Anonymous

Margot Potter said...

Tam

That's a good point, many quotes are attributed to anonymous but do have authors. In fact I've found that to be the case on many occasions. Is it up to you to dig deeper? I would say if you're publishing it a printed book or magazine, perhaps yes. I'm not a lawyer though!

Cheers,
Madge

Ellobie said...

What if I use a digital image of Marilyn Monroe for my profile pic? What if photoshop images of Marilyn & Freida into a new image, cut it out in a circle shape, splatter paint on it, put it on a chain and call it jewelry?

How about taking all this thought & energy and channeling it into something *really* useful, like feeding the hungry or warming the homeless?

Margot Potter said...

Well Ellobie

Firstly, you've violated copyright laws.

Secondly...how do you know I don't use energy to do good things for people? You don't know me. In fact...in point of fact...this career began after I spent five years of my life selling fair trade products that benefited the poor worldwide, unfortunately for us, no one in our area seemed to care about buying things that made a difference.

So then...I started a career where I could inspire others to be creative. I do that in my books, my blog, my videos and in everything I do. I also help others in my industry to get connections and make progress. I pay it forward and I pay it backward. And because I am a person who gives a flip about how my actions affect others...I am exploring copyright infringement.

I work as a designer full time and I make my living which feeds my family, our adopted chickens and pot bellied pigs and the rest of our menagerie designing. So these issues are of importance to us.

I have no clue who you are or what you do and I'd never assume to lecture you on how to conduct yourself. My job on this planet is to become and to share and inspire others to do the same. Your job...is to do what makes you happy.

Warmly,
Madge

Michele said...

This is something in which I have done a great deal of research. No, I am not a lawyer but I do run a website that shares public domain images. After several phone calls to the US copyright office and more reading on this subject than seems should be necessary, here's my take on some of your questions...

Be careful when using "vintage" digital postcard images. There are some misconceptions that post cards are treated differently than other printed materials. The truth with postcards is that few copyright holders followed up to apply for the extensions for works printed after 1923. Good luck trying to figure out who did and who didn't. Unless they are out of copyright based on the date of death of the artist or date of publication, I would not touch a digital post card image with a 10 foot pole.

Generally speaking, the US follows anything before 1923 is in the public domain (that date is not currently moving seemingly due to some shenanigans by the keepers of the mouse and a few others), 70 years after death (50 in some countries), 95 years after publication if the artist is known and it is a work for hire situation or 120 years after publication if the artist is not credited. But even that gets sticky and my research has not identified what happens if the work itself is over 120 years from pub date, the artist is not "credited" but the artwork is signed.

There is a semi-global standard on copyrights called the Berne Convention. Most 1st world countries follow that standard but some have stricter ones. France has some convoluted thing relating to adding time due to the two World Wars.

Michele said...

Part II (blogger complained my answer was too long)

If you use original printed materials in your work, whether or not they are out of copyright, it is my understanding you purchased the printed page and are free to use it however you wish. This gets a bit sticky if the image includes a trademark. Photocopies are a no-no unless the work has fallen into the public domain - you purchased the rights to use 1 copy when you purchased the book or magazine.

Like someone already said, bottle caps and the like are protected under trade mark and what is called trade dress. After an incident with one of the members of Craftster.org, I wrote a blog entry about her experiences which links to her original thread as well as several resources for crafters. The article can be found here - Post Consumer Goods & Trademarks.

Part of the issue with using celebrity images is that some of the people's faces are trademarked as well. It also is oh-so-complicated in determining if the photographer truly has the copyright of a photo of a famous person. I'm a bit on the fence on this one and personally feel the risk isn't worth it to use any celebrity photos.

Another slight gotcha is if a US artist sells something to a resident of another country, they have to be in compliance with the copyright laws for both countries, which is why I suggest following the Berne standards rather than your home country's. Some countries have also made specific exceptions like in the UK, the copyrights to Peter Pan have been protected in perpetuity with all royalties going to the Great Ormond Street Hospital for Sick Children. The King James Bible also is separately governed in the UK.

I would also hesitate using any historical artwork that does not include the original artist's information. Knowing exactly who published the work and when and who the artist may have been and the date of their death is the only way to truly ensure the status of the work; which is why every image on my website is accompanied by that information. I also do so to honor the original artist despite the laws not requiring me to do so. Even if someone is claiming, "I drew this", you will be the one the copyright holder goes after if the "artist" lied or did not understand their derivative work was infringing.

Most images that were taken in behalf of government agencies are in the public domain. The premise being that public funds paid for the image and therefore it belongs to the people. But there appears to be more and more exceptions where the original photographers are retaining rights. So, even using government images can be tricky.

Again, I am not a lawyer, but like I said, I have done more than a little research on copyrights. Hope this helps somewhat.

Personally, I think the whole trade dress thing is utter nonsense. Why should I not be able to use what amounts to garbage in any way I see fit? Same goes for collage artists using stuff cut out of magazines; as long as they only use original materials, they have paid for the rights IMHO. After all, once read, isn't a magazine usually thrown into the trash or recycle bin too?

Margot Potter said...

Michele

Wow. Thank you for this. Dang if I don't collect Victorian era postcards...so that's good to know. I agree on the recycling magazines angle, if it was going into a landfill...why not give it a new life. I bought the page, just as if I bought a toy or a game piece...whether it is under copyright the physical item is mine to use as I see fit.

Cheers,
Madge

susanc said...

Phew, it is truly mindboggling and overwhelming when you really start thinking about it. I've seen "artists" who are also selling jewelry with images of Elvis Presley and those of current movies and not so current, but copyrighted just the same. It simply amazes me that they think this is okay.

Labyrinth Gal said...

Fascinating discussion. I have a favourite photo that I cut out of a magazine & wanted to use in a blogpost. I googled & emailed the photographer to ask for permission. She wrote back that she was really surprised that I asked for permission. No one ever did that. AND then she said that she didn't own the image, Getty Images did and that I'd have to pay them to use it. Not only that, that they had people who look for copyright infringement on the internet. Needless to say, I didn't use her photo.

I do collage work, but I don't sell it. It's for my own amusement, and I really think that's OK. There are books out there demonstrating collage using images from magazines, etc. and so then does THAT become an infringement because money was exchanged for the book? Hmmm. I'll stick to personal use! :-) H.

P.S. Loyal readers of this blog KNOW of your good heart, hard work and charitable contributions. It's thanks to you that I know of A Place to Bark, Generosity Flows, etc.--In addition to your inspiration, creativity, and general overall *sparkleyness*

crossstitcher said...

Margot - thanks for being so honest and open about this topic. I am to chicken to contact some of the people I see selling questionable (to me at least) patterns on Etsy and other sites. I get requests from people for licensed character Cross Stitch patterns all the time! I explain that I can't do that, but some people just don't understand.

K. Miller said...

The whole debate they went through with music sampling in the 1980's comes to mind with this topic.
There is really so much to be said on this subject! I have tried to tackle and debate all of this for several years as well, so thanks Margot for starting this one up. I'm glad I found it!

I have a bachelor of fine art/studio art degree so I've studied the spectrum of art. There is much to be said about iconography and even brand images. Are we stealing the image or are we adoring and idolizing it? What exactly does that image represent to us? How does it make us feel? What does it provoke within us? It becomes poetic at that point. Love it or hate it. I really don't think it's merely "cashing in" on the image. Yes, if someone has claimed ownership of that image or likeness we should respect that, but how do we know if someone has? Then what are the rules?

As for the rubber stamp infringement...wow, I really had no idea! I recently came across a handmade stencil website that claimed that any use of the stencils for production of items made and sold was not allowed(or something to that affect). So I thought, hmmm...what's the point of purchasing the stencil other than to make gifts for others with it or to graffiti with it!?
Yes, it does spur us to stop being lazy and create all of our own art wholly from scratch but some of these various image making tools and materials are great to have at hand and add spontaneity to the creative process and dichotomy and dimension to the outcome.

I also love making found object art and jewelry out of toys and trinkets, so I guess that goes into the same realm of what we're talking about.

And the beat goes on..