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Decoupage using Napkins

Posted: Sat Aug 01, 2020 12:21 am
by Westcliff
Hi,
Apologies if this has already been covered but I couldn’t explicitly find an answer...

I would like to use some floral and pretty patterned napkins to decoupage onto some sea shells and then sell the finished item online.

I have bought the napkins and see on the back of the packet that someone holds copyright of the pattern.

Now, I’ve seen a number of people doing similar decoupage items for sale (e.g. decoupage of napkins onto wooden spoons and drinks coasters in patterns from other designers that would be copyrighted e.g. patterns by Emma Bridgewater etc and selling on eBay, Etsy etc) but don’t know whether doing something like this is legal or an infringement of copyright?

1. Can you decoupage items using bought patterned napkins and then sell those items?
2. And if you do, can you refer to the pattern or designer’s name being used when describing the item for sale?
3. Before doing so, would you need to seek permission from the copyright holder or artist? (in my instance the person that made the pattern would have died many years ago so it would not be possible to ask them, unless they have an estate I guess??).
4. Or is no permission needed for this type of crafting with the intent to sell?

The method of decoupaging doesn’t degrade the substance the pattern is upon (I.e. the paper serviette) but simply adheres it with glue and then is varnished over the top.

Many thanks In advance for any replies shedding light on what is and isn’t allowed.

Also I’m based in the UK and am only looking to sell in the UK for now, if that should affect the answer?
xx

Re: Decoupage using Napkins

Posted: Sat Aug 01, 2020 7:39 am
by AndyJ
Hi Westcliff,

There shouldn't be any infringement of copyright because you are not copying anything and the doctrine of exhaustion of rights should apply to you re-distributing something that you have bought. I think the only potential risk lies in damage to the artist's moral right not to have her work treated in a derogatory fashion, but since the designs are currently on napkins I don't really think that applying them to some sea shells somehow treats them in a way which is less respectful. If anything, it elevates them into ornaments which people will keep, rather than napkins which once used will be thrown away.

You mentioned the fact that the substrate which the designs are printed on would remain intact during the process of decoupage. I assume therefore that you are aware of a copyright case from a few years back called Art&Allposters where the Court of Justice of the European Union found that replacing the original backing material during the transfer process meant that the work was, in effect, being copied rather than just being re-utilised and hence the exhaustion of rights principle did not apply. This was always a rather strained interpretation of the law, but in any case tit doesn't apply in your case.

If you want to sell these items with a reference to the artist, then you should include a disclaimer that these are not items produced by her or with her permission. If you don't, there is the possibility that you could infringe her company's trade marks and as trade mark law has a slightly different approach to the exhaustion of rights doctrine, you might be found liable. Here's what the European Trade Mark directive says on the subject:
Exhaustion of the rights conferred by a trade mark [...] shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.

Re: Decoupage using Napkins

Posted: Sun Aug 02, 2020 3:33 pm
by Westcliff
Thanks AndyJ for posting such a helpful reply.

Do you think that as long as I state that my items are hand crafted by me and, have in no way, been made in association with the designer/artist or any company, society or institution that is affiliated with the artist be sufficient to enable me to mention the artist when selling my items?

I’ve looked up the individual in question at the link you posted and his name isn’t trademarked like Emma Bridgewater’s is, however there are a number of entities that have and do use his name as part of their name or branding, including a museum (as they lived over a century ago).

Re: Decoupage using Napkins

Posted: Sun Aug 02, 2020 8:46 pm
by AndyJ
Hi again Westcliff,

If the artist(s) whose designs/artwork you want to use died over 70 years ago, there will definitely be no infringement of copyright, and it is unlikely that there is any current registered trade mark associated with their names, so you can use their names as descriptors, eg 'seashell incorporating an Aubrey Beardsley print design'.

Re: Decoupage using Napkins

Posted: Fri Aug 07, 2020 12:05 pm
by helenrdarrow
Once you learn to decoupage with napkins, you're going to be hooked! ... Place Mod Podge on the surface of the item and then place the napkin (or portion of napkin design) down on top. Use a piece of plastic wrap on top to smooth the image. This will help you smooth the napkin down without tearing.

Re: Decoupage using Napkins

Posted: Fri Aug 07, 2020 8:57 pm
by Westcliff
Thanks again AndyJ for your thoughts and assistance and helenrdarrow thanks for the tip :)