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marnik
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PostPosted: Tue Nov 12, 2013 9:37 am    Post subject: Music album covers Reply with quote

Hi everyone. It's great to know websites/forums exist like this!

I have a question about music, film and book covers. I recently created a poster for a friend of mine for his birthday which included all his favourite album covers from the 90s. It went down so well that I have been asked to create some more and people seem happy to pay for it.

Now, what I'm doing us using existing album covers to make something different and in a montage format.

Firstly, is this allowed? Secondly, am I allowed to profit from future creations of collage (music albums, book covers and movie posters).

I did think that I may have to put the onus back on to the individual by including this disclaimer:

Please note that we require everyone who requests a unique work of art to tell us if they own the DVDs, books or albums they are requesting. We create something from what you already own. We act in good faith. We will not check the information you provide us. We will never pass on any details of any of our customers.

The other thing that could be done is that I could say that the profit made on the item is from the mark up on the paper and no profit is made on the creation of the artwork itself.

Thanks for any help you can give. I really appreciate your time reading this post.
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AndyJ
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PostPosted: Tue Nov 12, 2013 9:33 pm    Post subject: Reply with quote

Hi marnik,
As long as you only use the original album cover or poster etc and there is no element of reproduction, then what you propose should covered by a doctrine known as the exhaustion of rights, meaning that a copyright owner cannot exert any further rights over a physical product etc which has lawfully been purchased or otherwise transferred to a third party. There are quite a few issues to do with how this doctrine can meaningfully be applied to intangible works such as software and digital files, but as that doesn't apply here, I won't bore you with those details.

The disclaimer is not strictly necessary because if you are given a physical album cover to work with, its provenance is not really at issue unless of course you suspect that it is not the genuine thing (for instance you suspect it's a laser copy of a poster). However it does no harm to have the disclaimer anyway.

The one area of concern is how you actually modify these items to make a montage. The moral rights of the author can be infringed if you treat his work in a derogatory way such that it damages his reputation as an artist etc. From what you have described, this sounds unlikely and in fact your works will be a tribute to the original. But you need to be aware that any mutilation or distortion of an artistic work can fall into this category of derogatory treatment.

I don't think you need to be concerned about the profit aspect. If you work enhances the value of the original album cover or poster, that is perfectly acceptable and does not impinge on the author's rights. It is somewhat similar to a gallery taking a painting and by putting it in a lavish gilded frame, increasing its value to a would-be collector.
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marnik
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PostPosted: Tue Nov 12, 2013 11:37 pm    Post subject: Reply with quote

Hi Andy. Thank you so much for the very thorough response. This does show that I have no been detailed in some areas however and I will try to be more granular.

The individuals will not be providing me the albums for me to use the artwork. In fact, I don't know if they actually have those albums in the first place.

I want to mitigate any copyright infringement directed at myself through the creation of these montages. For that reason, I was thinking it would be possible to direct this at the individual who wishes to purchase my work.

It is up to them whether they wish to lie about owning the albums or not. This would not be of concern to me as I would be acting in good faith that they have them in their possession. Of course, they could have sold them the day after they request a montage.

In the case of them requesting a montage for a friend or member of the family, I'm sure they don't know what albums they have bought and are in their possession. However this is a risk for them to take.

Acting in good faith that they have already purchased them, I would then source the album covers online. In some cases enhancing the quality of them using Photoshop. I am under the impression that because of the Instagram Act, anything online can be used by anyone else.

What I am actually doing is advertising their products through art. They are individual tributes that make up the whole piece. In fact I already know of a person who has bought an album on iTunes after seeing it in a montage.

I would like to add a link or an image to this post but I'm not able to due to the forum restrictions in place on my account.

Thank you again for your time spent on this post. This topic is fascinating and I'm trying everything possible to make this work, but also want to make sure I'm not going to be fined in any way in the future!

Regards
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AndyJ
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PostPosted: Wed Nov 13, 2013 7:50 am    Post subject: Reply with quote

Hi Marnik.
It is just as well that you clarified what you wanted to do. Because that changes the situation completely.
I have to admit I had no idea what you meant by the 'Instagram Act' until I googled it. Regrettably Mr Orlowski writing in The Register rather let his journalistic inventiveness run away with him. The fact is that the Enterprise and Regulatory Reform Act 2013 does not say "People can now use stuff without your permission" as Paul Ellis from the campaign Stop43 is quoted as saying.
It remains the case that copying someone else copyright work would be infringement, and this is not affected by the fact that your client owns a copy of the album cover etc.
Just for the sake of clarity what the ERR Act does is set up enabling legislation for regulations to be made about the licensing of so-called orphan works. These regulations have not yet been drafted and due to lobbying by organisations such as Stop43, they are unlikely to be so sloppily worded that "millions of photographs and illustrations are swept into such schemes". The article conflates two separate things: an orphan works licensing scheme, and a scheme for extended collective licensing (the so-called Copyright Hub). The latter is unlikely to include photographs within its remit because of the opposition from Stop43 and others, and because the Hub has to be opted into by a body representing the authors or artists concerned with the type of copyright work (mainly music, drama, literature). And individuals authors will be able to opt out of they wish.
As for orphan works, clearly it will be difficult for individual authors to opt out of that scheme because they will not know that their work is being treated as an orphan. The scheme is aimed at very old works held in museums and archives and would certainly not apply to commercial works such as film posters of album cover because it is relatively easy to discover who produced them. On that basis, they would never be considered as orphan works in the first place.
So I hope that helps to clarify things a little.
What you are proposing would be straightforward copyright infringement both under the law today, and when at such time the new regulations come into force..
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marnik
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PostPosted: Wed Nov 13, 2013 10:29 am    Post subject: Reply with quote

Hi Andy. I'm glad I clarified it too!

Thank again for your assistance here. So just to make sure that I have understood you correctly:

If the individual requests a montage and says (over email) they they own the albums (and therefore the artwork) that they would like included, I would not be able to source those album cover images myself and use them (as I would still get into trouble). Even if those images are sourced from blogs and websites that have potentially not requested approval themselves AND I a have stated that I am acting on good faith that they own legal owners of the albums.

It sounds like it isn't possible which is a shame. Is there somewhere I can request permission to do this? After all, there are many websites out there selling movie posters online. It would be interesting to know if a small fee per product could be included into the financials.

Although a minefield of information, it's actually quite interesting to know what can and cannot be done here.

Thank you so much for keeping me out of jail.
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AndyJ
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PostPosted: Wed Nov 13, 2013 1:06 pm    Post subject: Reply with quote

Hi Marnik,
Taking your last point first, you would be unlikely to go to jail! Most infringement is a civil matter which normally means that a claimant will be entitled to damages proportionate to the loss they have sustained due to the unauthorised copying. Only the most serious cases, such as mass producing copies of DVDs of feature films, would normally attract criminal sanctions, although some major film studios and record companies are pressing for greater use of criminal powers against owners of torrent sites and the like, given the scale of abuse which they allege is occurring.

But back to your specific issue. It is necessary to distinguish between the things an owner of a copyright work can do and the economic rights of the copyright owner. A good example is a painting. The artist will own the copyright in his work and this allows him to control how the work may be exploited: only he may authorise copies to be made, or for the work to be sold to the public (more details here if you require them). However once he has sold his painting the new owner also has certain rights. These are the things one normally associates with owning an article. She can hang the painting on a wall of her home, she may give it or sell it to someone else or she may take it into the garden and burn it. The owner however does not acquire the rights of the copyright owner, unless that person (the artist in this case) agrees to transfer the copyright, a process known as assignment. When the artist dies, his copyright passes to his heirs; when the owner of the painting dies, the physical painting passes to her heirs.

There are some other rights, known as moral rights which I briefly referred to before, but I don't think you need to worry about them at this stage.

Exactly the same separation of rights exists with other copyright works such as a book or an album cover. However taking the example of an album cover, generally speaking the person who physically created the album cover may well have transferred their copyright to a record company as part of the contract to supply the artwork. Hence on an album sleeve you will find the copyright notice usually specifies the record company, although there may be a separate copyright notice for the author of any liner notes if they have been written by a well-known pundit or critic. And of entirely separately, copyright in the songs will belong to the song writers, but this has no bearing on the album cover itself, it is merely a convenient place to record this information.

Unfortunately for you, you would need to individually seek permission to reproduce each album cover or poster etc as there is no one agency which can issue a licence for this purpose, as there are for most music tracks or magazines, for instance. On the plus side it is usually fairly easy to find out who is the copyright owner and they all tend to have fully-staffed licensing departments you can deal with.

I hope this helps.
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marnik
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PostPosted: Sun Nov 17, 2013 7:18 pm    Post subject: Reply with quote

Hi Andy.

Thank you once again. I think you have explained this very well and it all makes sense. I have emailed all the major record labels to see where I stand on this as I don't know whether a single fee will need to be paid or a fee per usage. I will let you know what I find in either case.

At the moment, I have not heard anything back from any of them so I'm not holding my breath!

Thank you once again for all your help.
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marnik
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PostPosted: Tue Jul 18, 2017 9:00 am    Post subject: Reply with quote

Hi. It's me again - but four years later!

I also now have the ability to post a photo of the works I was trying to create.

https://ibb.co/gPnREa

I have not heard back from the record companies, but I have been reading up on The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014.

Would this help me at all?

http://www.legislation.gov.uk/ukdsi/2014/9780111116029

I've seen other sites with mosaic album t-shirts, although not as many as mine, so I'm wondering whether they do it illegally, or whether it is now okay?

[/img]
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AndyJ
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PostPosted: Tue Jul 18, 2017 11:36 am    Post subject: Reply with quote

Nice to hear from you again, marnik.

And as a good example of the phrase 'a pictture is worth a thousand words' your most recent posting would qualify big time.

I now understand precisely what you want to do. And regretably I don't think I can offer you too much new hope! The regulations you mention cover both the new exception for quotation, and also one for parody etc. I don't think the parody exception comes close to your proposed use, although to be fair, there have been no court cases yet to define exactly what will fall within this subject area.

Similarly, we don't know, from any decided court cases, how the quotation exception will expand the existing exception for the purposes of review. The review exception principally applies to written works (books, phamplets, essays and so forth), artistic works and to films. In the case of films it would allow a critic or reviewer to publish a short clip or still from a film to illustrate a point made in the review/critique. This 'licence' was generally expanded to include using pictures of products (including albums) which were separate from the actual work being reviewed, namely the music contained on the album. The reason this was possible lies in the wording I have highlighted in the following extract of section 30(1):
Quote:
(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public.
This in turn has led to the much wider use of images of albums covers (say on fansites or Youtube) as a means of referencing the music to be found on the albums, without any actual criticism or review. Strictly speaking the law does not cover this sort of use so we have to conclude that the copyright owners are prepared to let it go unchallenged because it generates additional interest or goodwill around the music they wish to promote.

The new quotation exception appears to apply to all types of copyright work, but without the need for a motive such as crticism or review. In other words the reason for the quoting is left to the user to decide. This then makes it hard to apply the main 'fair dealing' criterion which is that the amount used may not be more than is necessary for the purpose. This is where we await the courts to set the boundaries. And of course, like the review exception, quotation requires that the original work is credited. And although section 30 as a whole does not rule out any commercial use of any copies, it may be a factor the courts take into account when looking at the question of what is 'necessary'.

All of which leaves you on pretty uncertain ground. On the one hand the record companies do not seem to be too concerned about enforcing copyright in the case of small thumbnail images of album covers, and on the other hand the courts have not yet made it clear whether such use would in fact be covered by the new quotation exception. But given that it is impractical for you to credit the originals on a tee shirt, as fair dealing requires, and the fact that I am not 100% sure that what you want do would actually qualify as 'quotation', I am left thinking that in the absence of explicit permission from the record companies, you may be running a small risk by going ahead. That said, the most likely sanction you might face is having your listings on Ebay or elsewhere taken down and a cease and desist letter from a record company's lawyers.
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