My wife wants to make a collage out of magazine pics and sell it, is this Illegal?

[Animus]

What is the name of your state (Washington)?

I can't seem to find anyone who might know.

Is there a copyright on every photo used in magazines?

Does it make a difference that she is using these photographs from magazines together to make a new art piece that would be her own intellectual property?

Would it make a difference if she were to cover up portions of each photograph with a different one, leaving no one photo completely exposed?What is the name of your state (only U.S. law)?

 

[FlyingRon]

You pretty much have to believe that everything in the magazine is protected by copyright.

Cutting up magazines and pasting them into art is NOT copyright infringment.

Reproducing the magazine pictures (which you don't seem to be doing) into your art would be.

The other issues you bring up (that you are making a new art piece or that they aren't used in their entirety) doesn't really matter.

 

[roger_h]

In many cases, the photos in a magazine are not necessarily the magazine's exclusive intellectual property. They often use stock images and purchase rights for that one use only. While I'd imagine the magazine itself might not pursue anything, you might find an irate stock image company or photographer coming after you if they are able to recognize their images. There is an ethical problem problem here I feel you are not acknowledging.

In short, IMO it's just not a good idea. Don't use other people's intellectual property. But if your wife moves forward with this idea, use only images you know for a fact are are public domain or that you have received permission to use.

 

[FlyingRon]

In many cases, the photos in a magazine are not necessarily the magazine's exclusive intellectual property. They often use stock images and purchase rights for that one use only.

So? She's not a party to the negotiations and she's not making copies.

While I'd imagine the magazine itself might not pursue anything, you might find an irate stock image company or photographer coming after you if they
are able to recognize their images.

On what grounds? This is different than the Shepard Fairey taking Mannie Garcia's Obama picture and rendering thousands of them.

There is an ethical problem problem here I feel you are not acknowledging.

I'm not sure what ethical issue there is. She's not passing the pasted materials off as her own. It's no more an ethical problem than Andy Warhol owes to Campbell's Soup.

 

[xylene]

There is a wide body of information on the legalities of collage and assemblage art.

It is not 100% clear cut, but what you basically propose is OK.

HOWEVER, there is a good reason to use non-copyright images... like if say you want to make secondary images... shirts... etc.

 

[roger_h]

So? She's not a party to the negotiations and she's not making copies.

That doesn't matter. Taking someone's intellectual property and selling it - in this case photo images - is a copyright violation. The agreement is between the magazine and the photographer for an image to appear as stated in the magazine. There has been no agreement between the stock image owner and the artist.

On what grounds?

See above.

I'm not sure what ethical issue there is. She's not passing the pasted materials off as her own.

Again, the problem comes with the sales of the artwork. While I doubt there is a huge market for art made from cut up magazines, if she were to sell a installation to a gallery or private collector that piece would represent a violation of copyright laws, as the intended use has been misappropriated. There are very clear rules when a company uses a stock image, and any usage outside of the description would constitute a copyright violation.

 

[roger_h]

Needless to say, I'm a visual artist who has sold illustrations and photos to various companies over the years. I have also had numerous images misused and not been compensated for it. This is a little bit of a hot button issue for me.

I'd say that if I would walk into a museum or art gallery and I noted my images being used, I'd be likely to seek out the artist and demand compensation. If they declined, I'd talk to a copyright attorney.

 

[FlyingRon]

That doesn't matter. Taking someone's intellectual property and selling it - in this case photo images - is a copyright violation.

By your argument I could resell books that I have in my library.

 

[Some Random Guy]

Taking someone's intellectual property and selling it - in this case photo images - is a copyright violation.

No. Taking somebody's IP and COPYING it is a copyright violation. Reselling purchased items is not. Lookup the "First sale doctrine".

 

[roger_h]

By your argument I could resell books that I have in my library.

I assume you mean "couldn't"?

Regardless, as the image is part of a book that was originally covered in the license agreement between the publisher and the artist that would be fine. It's not an accurate parallel. There is no new product being made, unlike the proposed art collage.

Again, an agreement between a publisher and photographer is what is at the heart of the matter. I don't believe you could take an image of P. Diddy, slap it on a piece of artwork and sell it without perhaps raising the ire of his publicist and the companies he works for. Would they notice or care? Hard to say. Would I raise a stink if I saw someone using my image in a manner I had not agreed to? Probably. Is it worth it knowing the problems that can come up? I don't think so, which I why I recommended the OP use only public domain images.

 

[roger_h]

From Wikipedia:

When collage uses existing works, the result is what some copyright scholars call a derivative work. The collage thus has a copyright separate from any copyrights pertaining to the original incorporated works.

Due to redefined and reinterpreted copyright laws, and increased financial interests, some forms of collage art are significantly restricted. For example, in the area of sound collage (such as hip hop music), some court rulings effectively have eliminated the de minimis doctrine as a defense to copyright infringement, thus shifting collage practice away from non-permissive uses relying on fair use or de minimis protections, and toward licensing.

.....some visual collage artists have argued that the first-sale doctrine protects their work. The first-sale doctrine prevents copyright holders from controlling consumptive uses after the "first sale" of their work, although the Ninth Circuit has held that the first-sale doctrine does not apply to derivative works

 

[FlyingRon]

Again, an agreement between a publisher and photographer is what is at the heart of the matter.

It's no part of the matter. The publisher buys whatever rights they agree upon are necessary (both for the issue in question as well as any later electronic rights for instance). However, the printed copy

I don't believe you could take an image of P. Diddy, slap it on a piece of artwork and sell it without perhaps raising the ire of his publicist and the companies he works for.

Completely different issue. Right of publicity is separate from copyright.

Would I raise a stink if I saw someone using my image in a manner I had not agreed to?

Stink all you want. You don't have the right of control of what people do with the copies that were LEGITIMATELY made.

 

[quincy]

Would the collage be considered a derivative of the original(s), where it is created based on or making use of the preexisting copyrighted material, or could it be seen as transformative, which builds on the preexisting copyrighted material, and adds an entirely new expression or meaning to the material? It would ultimately be up to a court to decide.

I lean toward roger's analysis and echo his advice that getting permission from the rights holders would be wise.

Artist Jeff Koons (an "appropriation" artist) uses the copyrighted works of others to create his own works, and he has often been sued over his created works as a result. He has lost more infringement suits than he has won. One of the suits Koons won was Blanch v Koons (No. 03 Civ.8026 (LLS) S.D.N.Y, Nov 1, 2005; aff'd No. 05-6433, 2nd Circ, Oct 26, 2006).

The Koons work that was the subject of dispute in the Blanch case was judged by the court to be a transformative work and, therefore, not an infringement on Blanch's copyrighted photograph. Koons had taken a Blanch-created ad from a magazine and used a portion of the ad in his collage.

The case is worth reading as it covers the factors a court looks at when deciding whether a work is a derivative or not, transformative or not, a fair use or not, infringing or not. In fact, all of Koons cases are worth reading as the court discussions on infringement are informative.

At any rate, if a work can be seen as a derivative of a copyrighted work as opposed to transformative, permission from the copyright holders would be necessary. Making derivatives is an exclusive right of a copyright holder.

As a note on Andy Warhol and his Campbell Soup paintings - Warhol could have been sued by Campbell's for infringement, and he could easily have lost the suit. However Campbell's did not sue because they liked his paintings and purchased one for their corporate headquarters.

As another note, the First Sale Doctrine does not apply here. The First Sale Doctrine would apply if Animus' wife were to purchase a magazine and then resell the magazine. It would not apply if Animus' wife takes copyrighted material from the magazine and sells it separately or makes something from the material and sells it (see Mirage Editions, Inc v Albuquerque A.R.T Co, 856 F.2d 1341, 1988).

 

[roger_h]

You don't have the right of control of what people do with the copies that were LEGITIMATELY made.

Indeed, but that's not the issue. As it's been pointed out we are talking about derivative works. Thus, any collage made would have a separate copyright and is not subject to First Sale Doctrine.

copyright.gov/help/faq/faq-fairuse.html

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.

And this site has some good advice too:

funnystrange.com/copyright/derivative.htm
Derivative Works

The safest approach is to use only material which is not under copyright, or is copyrighted by you. Rather than clipping photos out of magazines, take photos yourself. You can often do a lot by using actual objects in your collage, rather than copyrighted photos.