fair use and copyright
Collage art involves mixing and matching a bunch of images to create a fun and eclectic design. But there are things to watch out for when you’re cutting and pasting pictures and text from sources created by people other than yourself.
(Image: Art print from Ezra Jack Keats’ The Trip)
If you’re using images, font, designs, patterns or anything in print that is by somebody else, be sure to check with them if it’s alright to use it in your own work. In other words, get their permission, and credit them properly. Or, be certain that the images you are using are already in public domain. The easiest way to do either of these things is to go directly to the source who created those images and ask them, nicely of course. If the original creator of the image is no longer alive (as is probably the case for vintage fabric patterns and out-of-print book images), check whether the company that produced those items is still around, and whether there are any copyright restrictions attached to them.
Yes, it seems like a lot of hassle to do all those things just to use a little piece of someone’s old magazine picture or text. And what are the chances of them seeing their borrowed image in your work and suing you? The chances are slim, but stationery does travel from sender to recipient, and you never know whose hands it might end up in.
(Image: Art print from Ezra Jack Keats’ A Letter to Amy)
Just a few other points about fair use and copyright to keep in mind if you’re borrowing other people’s images, or if you’re concerned someone might be borrowing yours:
It doesn’t matter whether or not the image you’re borrowing is actually registered with a national copyright office. Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. (Source: U.S. Copyright Office)
In the past, it was okay to use vintage images (i.e. images created before 1978) because their copyrights had expired. But the copyright laws have been amended so that even if the original creator and the company that produced the items are both no longer around, they still own copyright for an extended period of time, which may be between 28 to 50 years, depending on when the work was created. (Figuring this out gets a bit tricky, so to see this explained in more detail, see Kara’s post in the comments section of this article.) Considering that neither creator or company may be around to file a violation of copyright, most artists are able to get away with using vintage prints without getting into trouble. But still, be careful if you do.
Collage artists are often told it’s okay to use less than 5 to 10% of the original image. This is based on the legal doctrine of de minimis, which states that in copyright cases where the infringement of copyright is minimal, the case will be dismissed. But the problem here is, what is considered minimal? It varies by case, there’s actually no set number. So, should you choose to borrow someone else’s images to put in your own work, use your own judgment on how much or how little you should use.
The information provided above is by no means comprehensive, it’s just a summary of my own research on the topic. Here are some links if you want to read more about copyright and fair use:
The United States Copyright Office
Comedies of Fair Use, a weekend long symposium held by the New York Institute for Humanities at NYU. If you’d rather listen instead of read about this topic, this site has audio links to the panel sessions. Some people that spoke on the panels, whose names you might find familiar, include Jonathan Lethem and Art Spiegelman.
The dispute about the cover for Thomas Friedman’s book The World Is Flat, is a recent case involving copyright infringement where an artist’s work was obtained without his knowing by a licensing company that sold the image to a publishing house.
The best way to avoid any problems with copyright is to create all the images that you use yourself. Make you own patterns, type and print your own text and font, draw images in different media, and then cut and paste as you choose. That’s what children’s book illustrator Ezra Jack Keats did when creating pictures for his stories (I’ve included 3 of his images in this article). If you do decide to incorporate images from outside sources into your design, then be respectful, give credit to the original creators, and use as much (well, little) as you think appropriate. Put yourself on the other side — how would you feel if you woke up one day and found someone using a part of your design and claiming it to be their own?
(Image: Art print from Ezra Jack Keats’ The Snowy Day)
thanks so much for this topic!!! you know, this is all the info i was taught and looked up on BUT i wonder how many people actually do this… i see SO MANY use vintage style illustrations… i heard that if you alter over a certain percentage, then its legal (like the 5-10% you talked of)… i’ve tried to ask a few businesses that had retro looking handmade goodness and received the latter answer… so instead, i’ve just NOT used any of the retro clippings i have unless its for personal use… for illustration, i have no problem! i will make my own! but it’s a sticky topic, eh?! i always said if i get a business going, i dont ever wanna jeporadize it by getting sued for something i could have prevented… haha!
thanks so much for all the links! i am going to have to make a post that tells people about YOUR post!!!!! this is valid and important info!!!
Great summary of the issue of fair use. I’ve dealt with this for years in the writing arena, and it has always amazed me how many writers (and artists in general, I’d imagine) are quite clueless about all of this. It’s especially interesting to me how many people think that if they find something on the Internet, then it must be free to use! :}Gah! Thanks for helping to educate on the issue!
I just discovered your blog a few days ago, and I am really enjoying it.
I applaud you for putting the topic of copyright out there for artists, in particular collage artists to think about. However I was confused when you said,
“In the past, it was okay to use vintage images (i.e. images created before 1978) because their copyrights had expired. But the copyright laws have been amended so that even if the original creator and the company that produced the items are both no longer around, they still own copyright.”
I believe you are referring to the Copyright Act of 1976, but prior to that act unpublished works were protected in perpetuity under common law, due to the author’s right to first publication. However, the Copyright Act of 1976 introduced the statutory protection of unpublished work, granting only a fixed term of protection. That fixed term was life of the author, plus 28 years renewable for another 28 years for works created prior to the Act; and the life of the author plus 50 years, for works created after the passing of the Act. That was before the Sonny Bono Copyright Term Extension Act, and the term of protection before something comes into the public domain is something like 90 years after death of the creator. A lot of people weren’t too happy about that because the public domain shrunk.
The only difference for published works following the Act is that protection is no longer for a fixed term requiring renewal; rather it is protected for an extended period based on the date of the creator’s death (like unpublished works).
Confusing huh? Luckily the Act of 1976 also codified “fair use”!
Hi there. Your cautionary post, though informative and well-meaning, (and with some great links — such as to the fair use network!) I’m afraid is over-cautious, in my humble opinion. It is important to know that “fair use” provides an important exception in this area of copyright: it is not necessary to ask permission of a copyright holder to re-use their work, or to appropriate it or use part of it in a new work, if one is within the bounds of fair use. That would include re-use in any new work that would qualify as “transformative” or different enough from the original. Although this is subjective criteria, I challenge anyone to show me a work of art that is not clearly based on a prior work — all artwork is to some degree a “copy” whether an unconscious copy or not. The real problem with being over-cautious is that a level of truly needless self-censorship in imposed upon the condition for necessary experimentation and production that would otherwise take place, and all in the name of an “originality” that is actually quite mythical. A fallacy. This self-censorship is what is referred to as a “chilling effect.” A great article I read recently that is very helpful and insightful about creativity and “copying” can be found in the February ‘07 issue of Harper’s, by Jonathan Lethem who you mention above: “The Ecstasy of Influence” –
http://www.harpers.org/TheEcstasyOfInfluence.html
cheers,
Sarah.