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100 years in the and 70 in the UK, BUT those copyrights can be renewed and the other half of that is that if a work was unpublished the copyright protection extends for the entirety of the artist’s life plus 70 years.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: