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Re-purposing copyrighted material

Posted: Fri Mar 22, 2019 7:59 pm
by Kismet
As a crafter, I like to re-purpose 'found' things to make layers and add interest when creating cards, junk journals and so on. Is it permissible to use part pages of books, music sheets, atlases, wallpaper, etc within their copyright period or must I make sure I use out of copyright books? Is re-purposing in this way ok for private use but not if selling the final product? Is it copyright that I should be thinking about, or something else?

I've looked through quite a few pages without spotting anything on this, so apologies if it is something which comes up frequently which I have missed. Thanks in advance for your help.

Re: Re-purposing copyrighted material

Posted: Sat Mar 23, 2019 1:19 am
by AndyJ
Hi Kismet,

This has come up a couple of times, but not recently.

In theory if you don't actually copy something in order to re-purpose it then you wouldn't be infringing copyright. This is because of something called exhaustion of rights. Briefly this doctrine says that once an item which is subject to copyright has been lawfully sold or given away, the copyright owner has no further rights in that specific item, provided that the sale etc was not subject to some form of licence by which the copyright owner retained some of their rights. An example of this occurs with End User Licence Agreements which frequently used to accompany software on CD/DVD*. Another example is that of movies on dvd or BluRay etc where the distributor may stipulate that the product is for home entertainment only and it may not be used for commercial rental.

However the sort of works you mention are rarely sold with any restrictions like EULAs and so the exhaustion of rights doctrine should be applicable to what you want to do. That's the theory. However, four years ago the Court of Justice of the European Union came out with a rather unexpected judgment which called this situation into question in one specific instance of re-purposing. The case was Art&AllPosters v Stichting Pictoright [CJEU C-419/13]. Briefly this concerned a company which produced normal paper posters of, amongst other things, paintings. They did this legally under licence from Stichting Pictoright which is a body which represents artists in the Netherlands. The company then began selling the same poster images which they transferred via a chemical process onto canvas so that the new product looked as if it was painted on the canvas. Pictoright objected saying that this infringed the artists' rights to authorise reproductions of their works in different media, The CJEU agreed with the claimants Pictoright, saying that because the medium carrying the image (the paper in the poster) was replaced by another medium (the canvas) a new work was thereby created and so the exhaustion of rights doctrine did not apply. This decision has been criticised on the grounds that the CJEU were making new law which was not really supported by the existing Directives and thereby created uncertainty. And of course it only applies to this rather specific process of image transfer.

Nontheless the AllPosters decision is seen as watering down the doctrine of exhaustion of rights and certainly it makes the law less clear-cut on the issue. Given that you do not, I assume, intend to alter the actual medium on which your found objects are printed, I don't think the AllPosters decision should affect you.

There is just one other thing to bear in mind. Under UK law (and that of the other EU member states) an author of a copyright work has a moral right for his work not to be treated in a derogatory way which prejudices his honour and reputation. This right (often referred to as the droit de l'intégrité) is treated with far more respect in most other European countries, especially France, Germany and Italy, where even the slightest alteration or defacement of a work can been seen as a slight on the honour of the author or artist concerned. In the UK it would take quite a lot of derogatory treatment for a court to side with the author or artist, and so this is probably not something you need to be too concerned about.

* Software which is downloaded, along with other digital transfers like music downloads or ebooks etc, are not usually subject to the exhaustion of rights doctrine because they have no material form.

Re: Re-purposing copyrighted material

Posted: Sat Mar 23, 2019 3:56 am
by Kismet
Thank you so much for your helpful reply. This makes things so much clearer.

Re: Re-purposing copyrighted material

Posted: Sat Mar 23, 2019 3:15 pm
by FayeFife
Would a branded pair of shoes be classed as copyright? I was watching a BBC programme the other day and there was an artist who was using Converse (and another brand) trainers to paint "inspired by . . . " designs on them.

I know that the "Inspired by Disney/Marvel/DC Comics" images will be subject to copyright (I can see no licensing information on the trader's website) but what of the fact that the Converse name is being used as part of the product description?

Re: Re-purposing copyrighted material

Posted: Sat Mar 23, 2019 6:52 pm
by AndyJ
Hi FayeFife,

Generally speaking manufactured goods like trainers are not subject to copyright (although the design drawings for them may be) because there is no artistic craftsmanship in the industrial process. If you bought a pair of hand-crafted shoes from a traditional shoemaker then it is possible these would be considered works of artistic craftsmanship.

In order that products which are made by industrial processes can be protected, a thing called Design Right was created. This right comes in several different flavours, such as Registered or Unregistered, and UK or European Community wide versions, each of which affords a slightly different level of protection. (You can find more details about Design Right here on the IPO website). I would expect a brand like Converse to have registered their designs to the greatest extent possible in order to get the best protection. However design right only aims to stop someone else from making goods which are copies or near copies of the look and shape of the registered design. It doesn't prevent anyone from customising a legitimate product. So on that basis I don't think there are any grounds on which the makers (Converse et al) of these trainers could object to what this artist is doing.

However when it comes to the actual wording being applied, there may be grounds for Disney/Marvel to object to the use of their name in a way which implies that they might have authorised the modification. This may or may not amount to trade mark infringement, but I think a more likely cause of action would lie in passing off. Passing off claims require the presence of three 'ingredients':
  • Goodwill in a product, service or brand,
  • A misrepresentation which is likely to confuse the consumer,
  • which leads to damage to the product, service or brand.
Clearly here, Converse have goodwill in their brand, as do Disney/Marvel in theirs. It could be argued that putting the 'Inspired by Disney/Marvel/DC Comics' motif on the shoes might certainly confuse some people that this was merchandise authorised by Disney/Marvel, but whether this would damage Disney/Marvel's goodwill (ie brand identity) is open to question. It wouldn't damage the Converse brand since the actual shoes on which the wording appeared were their genuine product so there is no misrepresentation over that aspect.

I hope this answers your question.

Re: Re-purposing copyrighted material

Posted: Sun Mar 24, 2019 11:52 am
by FayeFife
Thank you for taking the time to reply, it certainly makes interesting reading!