Cutting out pictures from comics to re-use - fair use?

[wendymarlowe]

What is the name of your state (only U.S. law)? Alabama

I make jewelry, and recently I've hit on the idea of re-using pictures from old comic books in my work. I cut out the pictures from the (legally purchased) comics, then make them into a pendant to use as part of a necklace. Is this legit? Is it legal for me to list the resulting necklaces in my online store with the name of the character or comic I used, or would that just be asking for trouble? I know this is probably one of those "you don't want to get sued even if you're right" kinds of things, but it would be good to know whether I'm opening myself up for trouble or not.

 

[sandyclaus]

What is the name of your state (only U.S. law)? Alabama

I make jewelry, and recently I've hit on the idea of re-using pictures from old comic books in my work. I cut out the pictures from the (legally purchased) comics, then make them into a pendant to use as part of a necklace. Is this legit? Is it legal for me to list the resulting necklaces in my online store with the name of the character or comic I used, or would that just be asking for trouble? I know this is probably one of those "you don't want to get sued even if you're right" kinds of things, but it would be good to know whether I'm opening myself up for trouble or not.

I'm thinking NO. In effect, while you paid for the publication from which the comics are cut out, you are essentially re-selling the image. That's what will get you in trouble, especially without express written authorization from the owner or publisher, whomever has the current rights to the comic.

 

[HuAi]

What is the name of your state (only U.S. law)? Alabama

I make jewelry, and recently I've hit on the idea of re-using pictures from old comic books in my work. I cut out the pictures from the (legally purchased) comics, then make them into a pendant to use as part of a necklace. Is this legit? Is it legal for me to list the resulting necklaces in my online store with the name of the character or comic I used, or would that just be asking for trouble? I know this is probably one of those "you don't want to get sued even if you're right" kinds of things, but it would be good to know whether I'm opening myself up for trouble or not.

Do you know when the comics you are cutting were created? The original creation date for the character, not the actual print date.

 

[xylene]

What is the name of your state (only U.S. law)? Alabama

I make jewelry, and recently I've hit on the idea of re-using pictures from old comic books in my work. I cut out the pictures from the (legally purchased) comics, then make them into a pendant to use as part of a necklace. Is this legit? Is it legal for me to list the resulting necklaces in my online store with the name of the character or comic I used, or would that just be asking for trouble? I know this is probably one of those "you don't want to get sued even if you're right" kinds of things, but it would be good to know whether I'm opening myself up for trouble or not.

How old? Like 5 years or 50 years.

 

[justalayman]

here is a site that will help address a lot of your questions:


http://www.tabberone.com/Trademarks/trademarks.shtml


take note of the topic: first sale doctrine


that is what allows you to utilize the images as you are. You cannot make your own copy but you can utilize an image you legitimately purchased as you wish.

There have been claims from owners of TM's and copyrights that attempted to restrict the use of products such as cloth (legally) produced using TM's or copyrighted images. People were using that cloth to produce items and selling them. The owners of the marks or rights were objecting to the sale of the products claiming infringement.

Once they are sold the product, they lost the right to control how the product is used from that point forward.

 

[quincy]

first sale doctrine: that is what allows you to utilize the images as you are. You cannot make your own copy but you can utilize an image you legitimately purchased as you wish.

Once they are sold the product, they lost the right to control how the product is used from that point forward.

This is not entirely accurate. The First Sale Doctrine allows the purchaser of a legal copy of a copyrighted work to use this copy in any way he chooses as long as the use does not infringe on the copyright owner's exclusive rights.

Very little in copyright law is ever really clear cut and without exceptions.

You can review the following cases to see how two courts came to two very different conclusions based on a similar set of facts, one court finding a use to be a derivative work and the other court finding a use to be a fair use:

Lee v Deck the Walls, Inc, 925 F.Supp 576 (N.D. Ill. 1996)

Mirage Editions, Inc v Albuquerque A.R.T. Co, 856 F.2d 1341 (1988)

wendymarlowe, if there are lingering rights in the comics you wish to use for your jewelry (ie, the works are not in the public domain, an issue HuAi's post appears to be addressing), you may wish to have an attorney in your area review the matter. You do not want to put your online store in jeopardy by having to defend against an infringement lawsuit, even if the chances of having one filed against you may be slim (slim often solely because costs to a copyright holder to pursue an infringement action can be high).

Good luck.

 

[justalayman]

I have to disagree with the case against the issue. I believe their decision was erroneous based on an improper interpretation of the law. The court determined the first sale doctrine did not apply because the purchase of the images in a book which were then remounted and sold was a derivative work. I disagree with the determination it was a derivative work.

The Copyright Act of 1976, 17 U.S.C. Sec. 101 defines a derivative work as:

11
[A] work based upon one or more preexisting works such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a "derivative work."

There were no alterations of the work. It was not transformed or modified in any way. The original work remained as it was created when printed for the book. The only variation is the mounting of the art. Based on this decision, a person would be creating a derivative work if they mount a piece of art in a frame as that is ultimately all the "infringer" has done.



http://www.tabberone.com/Trademarks/CourtCases/1stCircuit/PreciousMomentsVsLaInfantil.shtml

(just for the comment on Mirage (and strangely enough supporting exactly what I said (before I read it)))

Precious Moments relies principally on Mirage, in which the Ninth Circuit found that artwork removed from a lawfully-acquired compilation, glued onto a background, and mounted onto individual ceramic tiles for sale were derivative works infringing the copyright in the artwork. Two district courts, both bound by Ninth Circuit precedent, have followed the holding in Mirage. See Greenwich Workshop, Inc. v. Timber Creations, Inc., 932 F.Supp. 1210 (C.D.Cal.1996) (matting and framing artwork removed from copyrighted book constituted derivative work infringing copyright in book and artwork); Munoz v. Albuquerque A.R.T. Co., 829 F.Supp. 309 (D.Alaska 1993) (mounting individually sold notecards onto tiles created derivative works infringing copyright), aff'd, 38 F.3d 1218 (9th Cir.1994).

While these cases tend to support Precious Moments' position, they have not been well received. A third ceramic-tile case also involving A.R.T. and the same notecard process at issue in Munoz reached the opposite result, flatly rejecting Mirage and Munoz. See Lee v. Deck the Walls, Inc., 925 F.Supp. 576 (N.D.Ill.1996). The Lee court held that for a work to be a "derivative work," it must contain creativity and originality that would make it independently copyrightable. Id. at 580-81. Mounting on tile was indistinguishable from mere framing, the court reasoned, 3 and the process was a "mundane act [that] falls into the narrow category of works in which no creative spark exists." Id. at 580, 581.

 

[quincy]

You are not alone in believing the Ninth Circuit decision missed the mark.

 

[justalayman]

What is the name of your state (only U.S. law)? Alabama
t.

If you haven't realized it, there is no sure fire answer. Not only is the law not easily interpreted, various courts can come to completely opposing decisions. So, unless/until it goes to the Supreme Court, if you are in the 9th US District, it probably would be best to not make your creations. Outside of the 9th, well, there is no safe haven, especially in a district that has not ruled on the issue yet.



so, just as you suspected:

I know this is probably one of those "you don't want to get sued even if you're right" kinds of things,

and the ultimate answer to this, at the moment:

but it would be good to know whether I'm opening myself up for trouble or not

yes, it would be. The best answer is: yes