Copyright and art

This article originally appeared at this site in 2004.

Someone asked me about copyright law, the Sargent images that I’ve used in my printed (reproduced) projects and products.

I’m not an attorney, so this is my personal opinion.

In general, works created before 1923 are in the public domain, at least in the United States. And, once something is in the public domain, the individual piece can’t go back into full copyright.

Despite Dover Books’ ominous-sounding copyright notices, for example, the individual images that they use – the ones that are already in the public domain – cannot be copyrighted by them.

In my non-legal opinion, all that Dover Books can copyright is how the images are assembled and used. That is, I can’t burn a copy of their clipart CDs and sell them as my own, or even give away copies of the CD if it detracts from Dover’s potential sales.

And, if I use a significant number of images from a single Dover source -enough to compromise future sales of that book or CD – I should pay Dover’s reasonable fees for significant single-source use. (About $5 per image, as of mid-2004.)

Completed works v. elements in them

Likewise, the Sargent image in my collage is in the public domain, but nobody can copy the collage that I created with that image, except by my permission. My copyright – which exists automatically, as soon as I created the work – protects my collage but not the Sargent image in it.

Sargent died in 1925, which is why I’m comfortable using his work in my art. Most of his published work was created well before the 1923 public domain date.

(But, if I use a recent photo of Sargent’s art, and I didn’t take the photo myself, that can be a copyright violation.)

Regarding copyrighted works used in collage… that’s a tricky question and if you ask a dozen lawyers, you’ll get two dozen different opinions.

Photocopies v. originals

Generally speaking, if the piece that you use is readily recognizable as a copyrighted work, don’t print copies of it. The risks are greater if the work/item/photo you’re using is still protected by copyright and represents a essential part of your finished work… but defining “essential part” is something taken up by the courts on a regular basis… and the laws change, steadily.

Except for US paper money, which you aren’t supposed to damage in any way, you can use pieces of anything copyrighted in your art… as long as you bought it (or otherwise acquired it, legally).

For example, I’m working on a collaged cigar box purse, using a whole lot of Elvis playing cards that I bought. That is perfectly legal… they’re my cards and I can do what I want with them, as long as I don’t do anything to defame the copyright holder in any way, or cheat him/her out of rightful income.

But, if I’d taken those same cards and photocopied them to use in collage… that’d be illegal. By photocopying instead of paying the copyright owner (or his/her agents) for the images that I’m using, I’d be technically depriving them – in this case, the Presley Estate – of their rightful income.

Using others’ work as collage elements

Regarding selling the finished art, even if all pieces of it were acquired legally… We’re again getting into a dicey area.

In some states – I think that California is one of them – if someone’s art is resold, the artist is entitled to a percentage of the profits from the sale. This protects, say, someone from buying a movie script for cheap, and then reselling it to MGM for big bucks without giving the original writers a cut of the money.

It also prevents you from using a published photo or even text as an important collage element, and then selling the finished work for huge money without sharing the wealth with the copyright holder. (I believe that Sonny Bono was responsible for this legislation.)

For an artist’s worst nightmare, see the Rauschenberg case, where he use a page from an old Time magazine in one of his “found art” collages, and was successfully sued by a guy whose photo was on the original Time magazine page. (The story of this is at ItsArtLaw.org)

Andy Warhol as a precedent

Andy Warhol and others used copyrighted images (such as the Campbell’s soup can) without thinking twice. Well, it’s a different era now in a more litigious society, and we’re working with different laws, and laws that are more strictly applied.

I wouldn’t use modern images as a significant part of any collage in a Cafe Press calendar, or on fabric created by Spoonflower, etc.

Many pages in Teesha Moore’s “Play” magazine featured collages & journal pages with copyrighted images. Today, several major monthly art magazines display collages with copyrighted images, as well.

I’ve avoided those kinds of risks in my own zines, but that’s a personal decision, and one I may re-think as other artists seem to establish a safe precedent.

Get professional advice

The only thing that’s clear is that there is considerable flexibility in terms of what can and cannot be used in reprinted collage art. Read as much as you can, talk with an attorney, and then decide.

The simplest solution is to use only public domain and copyright-free images, including things like photos that you take yourself.

Related links:

• Project Gutenberg is a good business model to follow.
• Copyright for Collage Artists, another artist’s opinions.
• Copyright Term and the Public Domain in the United States, easily my favorite resource.