repurpose of purchased images from paper napkins/serviettes

Advice for those new to the concepts of copyright
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Mouse
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repurpose of purchased images from paper napkins/serviettes

Post by Mouse »

Hi there, I know this might have been covered already but I need to clarify!

I purchase paper serviettes and napkins cut them up/cut out images from them and put them all together to create various designs as a collage on to form a light and then sell these at markets - Am I infringing on copyright by doing this or is this ok as with each light I am creating a totally new design of several images put together? If there is an artist name below the image I always try to incorporate that into their image.

Thank you for your help.
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Susan
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AndyJ
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Post by AndyJ »

Hi Susan,

In case you haven't already seen it, take a look at this recent thread on a very similar topic.

If you also look back at the previous threads mentioned in my reply there you will see that in general re-using an original of copyright work without actually copying it does not infringe copyright. There are exceptions, for instance the right to issue copies to the public may be infringed if the original work has not previously been published, but other than these, the principle of exhaustion of rights will apply. However a recent case before the Court of Justice of the European Union known as Allposters served to remove some of the certainty which previously existed in this area of the law. You can read more about the Allposters case here.

UK copyright law prevents adaptations (such as films of books, translations of books, public readings of books etc) of some copyright works without the author's permission, but this stipulation does not apply to artistic works such as the pictures on the napkins you wish to use. The only protection which may apply in your case is the so-called right of integrity of the artist. This right is supposed to protect the artist's work from being subject to derogatory treatment. However, merely incorporating their works into yours in the way you describe, is unlikely to be sufficient to amount to derogatory treatment. Your treatment would have to distort or mutilate the original work in a way which was prejudicial to the honour or reputation of the artist. Ironically where the artistt is anonymous, and his name has never been associated with the work, the integrity right cannot be invoked. This applies for instance where the artitst is an employee, and his employer owns the copyright. What's more, the integrity right is a personal right owned by the artist and cannot been transferred to the owner, so the manufacturer of the napkins cannot claim infringement on behalf of the artist.
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Post by Mouse »

Thank you very much for your helpful reply, Andy.
It has answered my question and for the most part I feel that I should be alright with what I am doing.
Thank you
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Susan
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Mrs Readhill
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Re: repurpose of purchased images from paper napkins/serviettes

Post by Mrs Readhill »

I have just been contacted by an artist who has asked me to remove decoupaged items from my etsy shop because the images are hers. She says I dont have a licence to use them.
The items are decoupaged with napkins with these images on.
I've also been asked to remove napkin decoupage items by another artist because they say that it is copyrighted art.
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Re: repurpose of purchased images from paper napkins/serviettes

Post by AndyJ »

Hi Mrs Readhill,

As you will probably have read the earlier replies in this and a couple of other threads on this subject, you will know that you are legally entitled to repurpose items of this sort without infringing the underlying copyright. However it would appear that the person who has contacted you doesn't fully understand the law, so I will try set out the law in a different way. To be fair to the artist it may well be that they have misunderstood what is happening with your decoupage items and possibly is unaware that you will have legally purchsed the napikins in the first place.

An artist who creates an artistic work is entitled to copyright in her creation. Copyright is actually a bundle of rights the main three of which are the reproduction right (ie the right to authorise or not the copying of the work), the distribution right (that is the right to authorise or not the distribution of the work) and the communication right, that is, the right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. These are known as economic rights since in exercising them the artist may benefit financially. There are also some moral rights which we don't really need to go into here. As the artist in your case is unlikely to accept the word of someone like me on website, here is a link to how the EU Information Society Directive* describes these rights (see Articles 2, 3 and 4). As the link goes direct to the EU's own legislation website, it can be trusted.

Since you will have legally purchased the napkins, and you are not copying them nor are you making them available by wire or wireless means, the only right in play here is the distribution right. Again we need to consult an authoritative source to see exactly what this right encompasses. Here is the text of Article 4 of the InfoSoc Directive:
Distribution right

1. Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.

2. The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.
It is the second paragraph which is relevant here. Unfortunately it is written in a slightly confusing way but this is what is known as the doctrine of the exhaustion of rights. Once the artist has authorised the distribution of the napkins bearing her artwork and they have been legally acquired by someone, the artist's distribution right in those specific items is exhausted, or to put it more simply, has come to an end.

This is the reason why you are able to distribute (ie offer for sale) your decoupage items, even though they incorporate the original artwork. You do not need a licence to do this because the artist no longer retains any right to licence to you. The artist has gained the economic reward by the first sale of the napkins, and she isn't entitled to a second amount of money just because you then repurpose the original item and no doubt add extra value.

I hope this helps you to understand the issue, and more to the point, that the artist can be persuaded to see the true situation.


*Even though we are no longer members of the EU, that Directive was incorporated into UK law by the Copyright and Related Rights Regulations 2003 [SI 2003/2498] and remains part of UK law today. In fact much the same wording can be found in Article 6 of the World Intellectual Property Organization 1996 Copyright Treaty to which the UK is a signatory.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Decoupagecrafter
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Re: repurpose of purchased images from paper napkins/serviettes

Post by Decoupagecrafter »

Thank you all for this topic. I too was contacted yesterday by an Etsy shop who asked me to remove a listing as I had used her image on a decoupage item that I had repurposed. I was horrified as I did not believe I had acted illegally in any way since I had purchased the napkin and there was no copyright sign on it only the artist's tag.

I did remove the item as requested as didn't need the drama to be honest but it felt wrong that I had purchased the napkins and now was being told how I could or could not use them. I purchased several napkins of this design but actually used only one quarter of one napkin on one plant pot just to give you context, not like I am selling thousands of them.

Have I understood this correctly? to use the analogy - If I buy a branded item, say a Hotpoint oven then re-sell it on Gumtree as I have now bought a SMEG, the original manufacturer wouldn't then be contacting me saying I couldn't sell it as this would be copyright infringement as the item is mine to sell to whom I so desire. If I have understood AndyJ's advice, this amounts to the same as using purchased napkins to repurpose handcrafted items?

I am wondering if it is the same Etsy shop on a mission?

Thank you AndyJ for your wise words and case law, most helpful indeed :D
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Re: repurpose of purchased images from paper napkins/serviettes

Post by Mrs Readhill »

Thank you for your amazingly detailed reply.
I hav removed the items from my shops because I don't earn enough from them to make it worth my while arguing with the artists but it is extremely useful information to have.

Decoupagecrafter.....there are sites that trawl the Internet searching for images that are possibly copyrighted. If you read their explanation of copyright law they make it sound very straightforward.
I got 4 requests to remove items from one artist and one from another all at the same time so I am assuming they have come from one of these sites and not directly from the artists. Although the last request asked me to contact her to tell her I had removed the item. I have not done this but I may just send her the information on here with an acknowledgement that I have removed it.
The items I was asked to remove were plant pots.
I have been decoupaging and selling pots for 10 years now and this is the first problem I have had.
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