Art/collage copyright
February 5, 2017 10:38 AM   Subscribe

I am looking to sell collages and prints of those collages for profit. I realise this might be rather complex but I'm looking for some guidance on whether I can use copyrighted material in them.

For example, say my collage contains a small fragment of an image of Marilyn Monroe. Do I need permission? Is this a complete no go or does it depend on the size/type of fragment used?

Similarly I want to include in these collages historical objects housed in museums. If I walk into a museum that allows photography and photograph an aztec head am I then free to use that image for profit?

Many thanks.
posted by mani to Media & Arts (7 answers total) 3 users marked this as a favorite
To your first point, it's a fuzzy area. The issue would be whether your art constitutes a "transformative use" of the original work. For some idea of how examples of this have played out you might start with the Wikipedia pages for transformation and appropriation art.

This 2014 New Yorker piece also discusses the ins and outs of one particular case, and how this impacts fair use art more generally.
posted by Wretch729 at 10:47 AM on February 5, 2017 [1 favorite]

IAAL, IANYL, IANAcopyright or artL. Assuming you're in the US:

Another angle is that certain kinds of media collages may be OK under the first sale doctrine. In the analysis my prof offered in copyright class a jillion years ago, there were likely to be different outcomes depending on what it meant to "purchase" the underlying image (as opposed to downloading it off the Internet), as well as what happened if you bought an unauthorized piece of kitsch as opposed to something licensed, etc. Not clear whether first sale doctrine would cover selling prints of the collage, though.

The same prof also mentioned that transformative use is super-complicated thing and still in development. These days, there's a lot of stuff on the Internet pushing a broad reading, but it's unclear how much an actual court would buy into it. Plus, if you're thinking about using recognizable images of people, there could be related issues of the right of publicity/right of privacy.

tl;dr: copyright law and media law are complicated and fact-specific; the law on transformative use is both developing and complicated. If you want to make a commercial go of this, particularly with respect to selling prints of your collages, particularly particularly in selling collages of famous people, talk to an actual lawyer who specializes in this. Articles in a general interest magazine (or non-advice from rando on the Internet who took a class a decade ago) don't count.
posted by joyceanmachine at 11:11 AM on February 5, 2017 [1 favorite]

I'm also a collage artist and also a lawyer, but I don't do copyright work and am definitely not your lawyer. Here's the law on this as I understand it. Fair use has four components:

1) the purpose and character of your use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market.

and in practical terms there's also a fifth element:

5) how likely the person who owns the copyright is to notice your work, take offense, and make a fuss.

So if you're like me and you're small-time, you're almost certainly never going to come to their attention. If you do, you want to look at things like why you're making the work, whether it impacts the original artist / photographer, who owns that copyright, whether they have a history of suing (using The Simpsons or a Disney property is a greater risk than, say, a famous painting), and whether you're using part of it vs the whole thing. If you're dropping, say, a part of Darth Vader's helmet into a collage of bright flowers to emphasize the temporary nature of life and beauty, you're probably good. A screencap of Darth Vader with a flower photoshopped in is much dodgier. You may also want to look at laws relating to fan works, parody, and criticism.

Short version: don't piss off the original creator or take a bite out of their income and you're probably good.

Also: no link to your artwork? That's like posting a cat question with no cat pictures!
posted by bile and syntax at 11:16 AM on February 5, 2017 [3 favorites]

So if you're like me and you're small-time, you're almost certainly never going to come to their attention.

This used to be true, but digital reverse image searches have made copyright cases into a profitable business model for a number of small companies online. Artists register their imagery, the companies put those images into reverse image search engines, and then have a staff lawyer send out letters demanding removal and a fine en masse to all violators. So basically, if you never digitize anything and you're small-time, perhaps. Though even then, if your buyers digitize your work in a "look what I bought" way...
posted by vegartanipla at 11:45 AM on February 5, 2017 [1 favorite]

I took a class on how to design a tarot deck and they were very specific about NOT using anything copyrighted if you wanted to publish it. You gotta create your own images or find free clip art. If you're gonna make a profit, that's where you run into trouble because if you make one, the original image creator will naturally want some profit too.

I really wish I knew the answer to "I took a photo of something," but alas, I do not.
posted by jenfullmoon at 3:35 PM on February 5, 2017

You will find that most museums place conditions on your taking photographs, so by entering you agree to be bound by those terms. If the work is in the public domain they cannot place it back under copyright by this means, but they can make you agree to how you will use or how you may profit from your images of said works of art. Museums make money from licensing images of art that they own that is public domain — they do it through their control of physical access not because of any underlying copyright they have in the work.
posted by Quinbus Flestrin at 6:10 PM on February 5, 2017 [1 favorite]

you will find a lot of specific discussion if you google "copyright for collage artists".
posted by cda at 6:29 PM on February 5, 2017 [2 favorites]

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