Appropriation: Beg, Borrow, or Steal

July 6, 2010 at 12:30 am (Artist Musings)

When I first started making jewelry six years ago, I purchased a CD Rom full of “copyright free”  images to use in my work. On the CD Rom, were posters, including both American and foreign Casablanca movie poster images featuring Ingrid Bergman and Humphrey Bogart. The woman who sold me CD assured me that the posters were in the public domain, and I could use the images in my work. I proceeded to create a Casablanca necklace incorporating the supposed copyright free movie poster images, and subsequently received a cease and desist letter from Warner Bros. Pictures.

Last Friday night, a young artist asked me about the legality of using images of other works of art in her own work.  As an artist who has been appropriating found objects, namely old advertisements, labels, and photographs, in my work for the past six years, I am ever mindful of copyright restrictions.

“Appropriation art is where an artist takes newspaper articles, product packaging, postcards and just about any imaginable kind of found objects, including the artwork of others, and assembles them as their own work of art. The found objects are frequently the subjects of copyrights owned by someone else. The found objects might also be trademarks, or the name and likeness of celebrities, both of which are also personal property like copyrights. The work is called appropriation art because the artist ‘appropriates’ the property of someone else and puts it in their artwork. Appropriation art is increasingly common, and without doubt it can be very creative. However, it clearly bumps into the exclusive rights of owners of copyrights, trademarks and names and likenesses. While lawyers may consider it infringement, it has become so common and widely accepted that it is the law which may have to catch up.” [FindLaw Knowledge Base by JACOBOWITZ & GUBITS LLP]

So, what is a young artist to do who wants to appropriate images in their work but not infringe on copyright?

1. Educate yourself about Copyright Law and Fair Use.

In general, copyright laws protect the creator of an original artwork with some exceptions. Understanding what factors a court must consider in  determining whether the use of an image is “fair” is key in determining whether or not you can use a copyrighted image in your work.

“The fair-use doctrine permits others to use copyrighted material in a reasonable manner without the owner’s consent for purposes such as criticism or commentary (including parody and satire), news reporting, teaching, scholarship, and research. Section 107 includes examples of factors a court must consider in determining whether a use is ‘fair.’ These factors include, but may not be limited to: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” [Intellectual Property and the Arts, College Art Association]

2. Determine  what is and isn’t in the public domain.

“Public domain definition: The public domain is generally defined as consisting of works that are either  ineligible for copyright protection or with expired copyrights. Public domain refers to the total absence of copyright protection for work The public domain is a range of abstract materials commonly referred to as intellectual property which are not owned or controlled by anyone. The term indicates that these materials are therefore ‘public property’, and available for anyone to use for any purpose.” [Public-domain-image.com]

Reproductions, including photographs of artwork, as well as originals, may be subject to copyright depending on what year the work was produced.

“…artworks created in the U.S. since 1978 and fixed in tangible form are currently protected in the U.S. even without a copyright symbol or formal registration with the Copyright Office. Works created between January 1, 1924, and December 31, 1977, may also be under copyright, depending on a number of conditions… Works in the public domain are free and clear of copyright, but they may still be protected by other laws governing property, contracts, and licenses.” [Intellectual Property and the Arts, College Art Association]

The chart below illustrates when works pass into the public domain [Lolly Gasaway, University of North Carolina]:

DATE OF WORK PROTECTED FROM TERM
Created 1-1-78 or after When work is fixed in tangible medium of expression Life + 70 years1(or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923 In public domain  None
Published from 1923 – 63 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 – 77 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before    1-1-78 but not published 1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before
1-1-78 but published between then and 12-31-2002
1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2047 whichever is greater

 3. Use only reliable sources and/or  published public domain images in your work. 

In general, to save myself hours and hours of research, I stick to using images that are in the public domain, such as the royalty free images found in published, reliable sources like the Dover Publications books and CD Roms. I would never again rely on another artist or “fly by night” vendor at a scrapbooking convention to sell me a “copyright free” CD Rom. 

Wikipedia also lists a number of sources for public domain images, however the presence of a resource on this list does not guarantee that all or any of the images in it are in the public domain. You are still responsible for checking the copyright status of images before you use them in your work. Click here to link to Wikipedia’s list of Public Domain Image Resources.

4. Alter images to make them your own.

The downside of using published public domain images out of books like the Dover Publications is that many other artists also use these images in their work. The trick is to use these images in a new and inventive way. Generally, I don’t just cut and paste entire images to use in my work. I alter pieces of images to transfer to the clay before I hand-form them into the beads.

"H" stands for "Hotel", as in Hotel Casablanca on this monogrammed bracelet

As a side note, after I received the cease and desist letter from Warner Bros. Pictures regarding the use of the Casablanca movie posters, I found a “Hotel Casablanca” luggage label that was in the public domain. I consequently used it on my first monogrammed bracelet, with the initials “HC”, which stood for Hotel Casablanca.

It should go without saying, that I am an artist and not a lawyer, and that the information contained herein is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular copyright issue, question, or problem.

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