Copyright Query On Using a Greeting Card

Advice for those new to the concepts of copyright
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GeorgeB
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Copyright Query On Using a Greeting Card

Post by GeorgeB »

Hi, I wonder if someone would be kind enough to give me some advice on the following. As a hobby I make mixed media wall plaques and boxes. Although primarily a hobby, I do sell my stuff at yard sales on my street twice a year. I only ever use images that are in the public domain, downloaded without restrictions or images that I have been given permission to use by the owner - all attributions/links are incluced. I have found a series of images that I would like to use and I contacted the artist to ask if she sold downloaded copies of her work. She doesn't but she directed me to her site where she sells her work on greeting cards, stickers and posters and other media. Her cards would be ideal for my project so my question is, when I buy the cards would there be any infringements of copyright if I use them on my project as described above. I never simply grab an image from the internet and I always make every effort to check on copyright.

Any advice will be much appreciated.

Regards

George Bryson
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AndyJ
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Re: Copyright Query On Using a Greeting Card

Post by AndyJ »

Hi George,

You are right to be cautious. When it comes to artistic works in particular, the law varies considerably based on where you are living. I'm assuming that you live in either the USA* (you mention 'yard sale' - a largely American term) or the UK or Ireland. We have to consider what are termed economic rights, but also the moral rights of the artist.

Economic rights

Generally speaking, re-purposing the physical entity (a book, CD or DVD for example) which embodies a copyright work which you have legally acquired does not infringe the copyright. You are not copying it as such, nor are you distributing it in a way which economically impacts the copyright owner - she still gets the sale money by selling her work to you. However apart from the reproduction and distribution rights, there is a third right within the overall set of economic rights. In UK and Irish law this is referred to as the right authorise an adaptation of the original work (see section 21 of the UK Copyright Designs and Patents Act 1988, the Irish Copyright Act has similar wording). However, helpfully in this case this right doesn't apply to artistic works and so on that basis there is no infringment under UK law, provided that each wall plaque etc you create uses the legally acquired piece of artwork. The US Copyright Act 1976 uses different wording. It speaks about derivative works (see section 106(2) Copyright Act 1976). From section 100 of the same Act we find the definition for a derivative work set out as follows:
A "derivative work" is 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".
In other words the scope is much wider and can include artistic works. This means that, in the USA, re-using a physical work you have legally acquired may need the permission of the copyright owner, if your wall plaques etc can be said to be 'based' on that earlier work.

Moral rights

Separate from the economic rights bound up within copyright, there are also moral rights which the copyright owner, to a greater or lesser extent, can rely on. These include the right for the artist's work not to be treated in a way which is detrimental to the honour and reputation of the artist. This is known as the integrity right. If you were to do this in France, for example. the artist would have every right to object to you cutting up or re-arranging her work in a way she disapproved of. In the USA and UK, not so much. In fact in the USA, moral rights only exist for certain tightly limited types of visual art (see section 106A of the US Copyright Act 1976). These specific types of visual art are defined in section 100 as follows:
A "work of visual art" is—

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
In other words it is most unlikely that in the USA this artist would have any moral rights in her works. In the UK such moral rights are not limited to specific types of work, but a court would need to be satisfied that there had been real (rather than fanciful) damage to the artist's reputation before it would allow a claim.

I appreciate that this doesn't fully answer your question, especially if you are in the USA, but if you are in doubt about where you stand, you could ask the artist for her views on what you propose to do. That at least might indicate whether what you want to do has real risks attached.



* The position in Australia, and New Zealand is largely the same as the UK, whereas in Canada the law follows the UK provisions on adaptations, but varies from the UK in its approach to moral rights (largely because of Canada's French heritage).
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
GeorgeB
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Re: Copyright Query On Using a Greeting Card

Post by GeorgeB »

Hi Andy

Thank you so much for your response which was extremely helpful indeed and it did answer my question. Incidentally I am in the UK but the people in my street who organise the twice yearly 'yard sale' opted for the American term for reasons best known to them. I don't intend to alter the artist's work in any way. It will be used exactly as it is but decoupaged on to a piece of wood which will also include the title (her's), the artist's name and a link to her site. I may follow your suggestion and contact her again and explain more clearly what I intend to do with her greetings cards (she is also based in the UK). However, I may have to think hard before contacting her again because I fear if she was unhappy with what I intend to do with her artwork, then I think I would feel morally obliged not to use. So this will need some pondering.

Once again, thank you for your detailed and illuminating response.

Kind regards

George
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AndyJ
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Re: Copyright Query On Using a Greeting Card

Post by AndyJ »

Hi Heorge

Thanks for clarifying the residence matter. I don't think you need to worry about contacting the artist again. As you imply this might give her the notion that she has some power to prevent you doing as you plan, and I don't that is the case in UK law. The fact that you are providing her with a credit is sufficient.
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
GeorgeB
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Re: Copyright Query On Using a Greeting Card

Post by GeorgeB »

Hi Andy

Thanks again. I've trying to word my email to her in such a way that wouldn't make her feel that I was steeling her work. But having read your response to me, I feel more comfortable proceeding with bought copies of her artwork and using them as I planned without contacting her again. The things I make are 'one-offs' so no mass production here.

You have been more than helpful.

Thank you.

Best

George
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