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years in the and 70 in the UK, BUT those copyrights can be renewed and the other half of that is that if a work was unpublished the copyright protection extends for the entirety of the artist’s life plus 70 years.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

Right click, save. Done.

Permission Free Clip Art Image from Dover Books publication 120 Great Impressionist Paintings Clip Art of an original painting by artist Pierre August-Renoir

I had another post slated for today, but something happened last night and I've decided to post again on the topic of Copyright Infringement. The internet is a fascinating beast, it's created a virtual free for all for intellectual property theft. It is like The Wild West. Right click, save, bingo...you own it. Right? It didn't have a watermark...so it's in the public domain, right?

Wrong.

If someone scans a picture of say Mickey Mouse or Spongebob Squarepants from a book or a cartoon it definitely won't have a watermark. If you download that image and duplicate it and sell it for profit, you've participated in copyright theft. So now there are two cases of copyright infringement. It is no different from walking into someone's home and slipping a vase you like into your purse. It's theft.

If you buy a pirated copy of a designer bag or shoes or hat, you've participated in copyright theft. Yeah, it's so much cheaper and you could never afford the real thing and shouldn't you have a right to own it? Nope.

Lots of people are doing it. They do it on eBay. They do it in Etsy. They do it on uBid. They do it at craft fairs and flea markets. So chances are, with the massive amounts of copyright infringement occurring on a daily basis on the internet and beyond, if you steal an image and copy it and use it in your art or sell it as a component to be used in someone elses art, you probably won't get caught. If you copy someone's work and sell it, you probably won't get caught. Though I can tell you that bigger companies like Disney and Nickelodeon and estates of celebrities like Elvis and Marilyn Monroe are diligent in seeking out this kind of stuff and prosecuting. If you do get caught, you could be in for an expensive lawsuit. No matter how you justify it, I can guarantee you the court will decide in their favor.

So just for clarity's sake I'm going to again explain the difference between recycling and stealing. If you physically cut out a printed image from a magazine, book, record cover or other printed form and you use it in your collage work...that's recycling. That being said, if you do you are still potentially infringing on copyrights, but there are fair use cases that have argued that these derivative works are acceptable. So it's a tricky situation that bears serious consideration and reflection and one I need to visit myself. If you copy or scan that image and use it or even manipulate it in Photoshop and sell that for profit or post it on the internet without proper attribution, you have stolen intellectual property.

Copyright protection in the United States lasts for 100 years or the artist's life plus 70 years unless the copyright is renewed. So unless you're using a public domain image from 1910 or earlier or an image that has been officially placed in the public domain or is sold by a reputable source as permission free (Dover Books has a huge selection of fabulous permission free images) then you are breaking copyright law. Copyright protection in Europe lasts for 70 years, so you can use European images from 1930 and earlier. Just because you can't find the copyright holder through a Google search, doesn't make it legal. Things are only in the public domain if the copyright holder has allowed them to be. That's why I use a lot of Victorian images in my work. That's why I collect ephemera from 1930s and before in Europe and from the Victorian era in the US. If it's protected by copyright, I will only use the original cut out printed page in a design, if not, I can scan and copy it and reuse it.

It's a fine line.

When I was working on my first book I contacted the estates of Frida Kahlo and Georgia O'Keefe about using tiny scanned images from their artworks in a bracelet I created as a tribute to them. I really didn't fully understand copyright law back then, but I did know I needed permission to use their art in my design. They contacted me back with a resounding no. So for those of you who use Frida's work in your designs, her estate is not okay with that. They have and they will prosecute.

People download music, buy pirated music and videos, take ideas, blog posts and images from the internet and resell them or repost them or repurpose them. I do not buy pirated music or videos or feel it's okay to download music illegally. That's my personal feeling, but let me state that I am guilty of the right click, save and the use of copyrighted images in work I've created for personal use. That's not illegal. Personal use is different from resale, redistribution...but still. I'm not fully without sin myself and I'm thinking deeply about these things today.

The reason I'm writing this post is because I stumbled on to someone on eBay selling images of some famous attractive diminutive cartoon horses that she'd copied and printed and cut out into circles to sell for mixed media use. I figured she didn't know and since it was a fairly well known set of images, I shot her a quick message both to offer her a warning and also to see what goes on inside the head of someone who does this sort of thing. Oh, she knew. She was very defensive and upset that I'd singled her out because millions of other people were doing it. This is her justification...which blew my mind by the way...she is selling the physical scanning, formatting, printing and cutting of the images and not the images themselves.

What?

Uh, people are buying the images. We can all cut out circles from paper and if we're really craft savvy we know that there are fabulous circle punches that make very quick work of cutting out circles. She also told me that lots of folks were doing it online and elsewhere and she removes anything if she is contacted by the company that owns the images. Uh, so if she gets caught she takes things down? Nice.

So does she steal stuff from her local shopping mall or from her friend's houses? Does she say to herself, "Lots of folks shoplift. If I get caught I'll give it back." Does she understand that if she gets caught she'll give it back and possibly go to jail?

Intellectual property is property. Think deeply about that fact. Ask yourself if you'd steal a physical object from someone's home or a store. If not, why is it okay to steal someone's creative output? Is it okay to profit from someone else's creativity? It's not.

It's not okay.

Justify it all you want. Good luck with that. But know that you might get caught and if you do it could be a very unfortunate situation.

Cheers,
Madge