Album Artwork

[KJR42]

Hi Folks,
I have a slightly different music copyright question I am hoping somebody can advise me on. I am in the UK and have a business idea that means putting various album cover artwork onto various objects as a bespoke gift business.
I believe the artwork is copyrighted as well as the songs etc? am i right?
My question is do i have to get approval from every album artwork copyright holder to use their design? and if so do I have to pay royalties?
or is there an easier way?
many thanks in advance

[AndyJ]

Hi,
I'm afraid that the answer is yes you will need to get individual permission for each album cover because there is no copyright collecting society which issues a blanket licence for this purpose. In almost all cases the record company concerned will be the owner of the copyright in the artwork. That said since there are now relatively few major record companies you may find they will provide you with a single licence for all of the labels they currently own. And yes expect to pay for a licence, but I have no idea what the cost is likely to be. I would expect that during negotiations you will be asked to choose between a flat fee licence, or one which is royalty based and assessed on sales of your products.
I hope this helps.

[KJR42]

Many thanks for your input, I thought this was the case and wondered why it had never been done. I will start with floyd's copyrighters as 'Wish you were here' is the one I want to start with.....

[KJR42]

Instead of seeking copyright agreement which could take ages as is proving, what if i bought the original item and then used that item in my product. An example could be that I buy an album and then use it (both sleeve & vinyl) within a product of my own design, let's say a chair. I sandwich the cover for the seat and use the vinyl as the back between perspex.
Have i now broken any copyright laws as technically i have bought the product, how i use it is up to me? isn't it?

[typonaut]

Instead of seeking copyright agreement which could take ages as is proving, what if i bought the original item and then used that item in my product. An example could be that I buy an album and then use it (both sleeve & vinyl) within a product of my own design, let's say a chair. I sandwich the cover for the seat and use the vinyl as the back between perspex.
Have i now broken any copyright laws as technically i have bought the product, how i use it is up to me? isn't it?

Pretty much, but not if you are commercialising it. If you went out and bought 1,000 copies of Wish you were here and laminated them into 1,000 chairs the first challenge you might get is that you were "passing off" the chairs as originating, or being licenced by Pink Floyd.

Additionally, the term "PINK FLOYD" is an EU registered trade mark, so if were used on these products (ie on the spine of the record/CD), then that may be infringing.

There's a current thread elsewhere on this forum that deals with approximately the same issue of incorporating the work of others into your own products, which outlines the copyright issues.

***

Edited link

[KJR42]

Many thanks for the great advice and wise words. I absolutely support the right for artists to copyright & protect their work (just want to make it clear) and my desire is out of deference to their work not jumping on a bandwagon to make money off their work, to a certain extent. I would not be mass commercializing their products but I only want to make a single item and only to customer bespoke requests. Not that this would probably change anything in the eyes of the law.
many thanks for the thread, I will go and digest

[typonaut]

I would not be mass commercializing their products but I only want to make a single item and only to customer bespoke requests.

I don't think it really matters how many you make, one is enough to invite litigation.

The problem with this thread is that we don't really know what you are making, and possibly an element of that is where the value is added to the item.

If you are putting a copy of Wish you were here in a display case/frame, then I don't really think there is an issue. If you are doing something that transforms the original into something else, then there might well be.

[AndyJ]

Not for the first time, I find myself disagreeing with Typonaut on this. If you are re-using the original article then there is simply no copying involved, therefore the question of copyright infringement does not arise. There may be an issue over the moral rights of the author if you were deemed to have subjected his work to derogatory treatment, but I don't think that's likely in the circumstances you describe.
Trade mark law is not automatically infringed just by using a product which bears a trade mark. When we use eveyday objects bearing trade marks (cars, clothing, designer sunglasses) that does not amount to infringement, even if we use them in the course of trade. Again you are not replicating the trade mark, merely using the product which bears it. Trade marks are protected to prevent the public from being deceived as to the origin of the goods or services concerned, generally through confusion over the similarity of the goods on offer. So I would suggest that incorporating an album cover into another object would not automatically make someone think that the object was produced by the band concerned, because there is no rational reason for believing that Pink Floyd have gone into the furniture business, hence there is little or no chance of confusion.
Similarly with passing off, there is very little reason why anyone would see your use as in anyway cashing in on the goodwill of the band whose main business is producing music.
The fact that this use may be transformative is irrelevant for the purpose of UK law.

[typonaut]

Own-It has just published a fact sheet on this issue: Re-using design. In particular the section on up-cycling seems most relevant - but I'm not sure it's any more illuminating than the discussion above.

[typonaut]

Not for the first time, I find myself disagreeing with Typonaut on this.[/url]

If we all had the same answer I doubt there would be a need for many people asking questions.

If you are re-using the original article then there is simply no copying involved, therefore the question of copyright infringement does not arise.

I think this is not correct, and the reason for that is contained in your own post, but that is a minor issue...

I understand your point, but I think there is some other issue here that is not purely related to passing-off or trade mark. This type of use requires, as an intrinsic part of its appeal, the goodwill and labour of the original designer.

Right now I am not sure I can perfectly articulate what the issue is, but I do believe that it falls into the same sort of classification as collage (and thus is related to another thread). From that perspective, if we accept that this type of use is related to collage, then I think we'd be as well to consider your comments on that subject in another thread:

Yes your collage would probably be classed as a derivitive work, and so technically you need the permission of the individual copyright owners whose work you incorporate. That would include the newspaper text, not just the images, as a typographical layout is also subject to copyright.

Have you changed your mind in the past three years, or do you think there is a difference?

Trade mark law is not automatically infringed just by using a product which bears a trade mark. When we use eveyday objects bearing trade marks (cars, clothing, designer sunglasses) that does not amount to infringement, even if we use them in the course of trade...

I really don't think that is anything like a substantial argument. If I buy a Rolls Royce grill and a Ford badge and stick them on a go-kart I think we can both agree that I'm going to get a call from the respective trade mark owners' lawyers.

Clearly drilling holes with a Black and Decker drill or riding a Honda motorcycle is not an infringement, because the goods in question originate with the rights holder, or their licensee.

So I would suggest that incorporating an album cover into another object would not automatically make someone think that the object was produced by the band concerned,

Agree thus far, as noted above.

...because there is no rational reason for believing that Pink Floyd have gone into the furniture business, hence there is little or no chance of confusion.

Hmm, perhaps you should have taken a look at the trade mark registration, these are the classes that "PINK FLOYD" is registered in: 09, 16, 25, 19, 24, 27, 14, 15, 28, 41

Most of these seem unrelated to the core business of "PINK FLOYD", but may reflect the lyrics in "Have a cigar":

Class 14: Jewellery; horological and chronometric instruments.

Class 19: Building materials (non-metallic); non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal; tiles, namely, wall tiles and floor tiles.

Class 24: Textiles and textile goods, not included in other classes; bed and table covers.

Class 27: Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings (non-textile).

Class 28: Games and playthings; gymnastic and sporting articles not included in other classes.

Surprising, innit?

[KJR42]

All valid points, and as I am a novice in these matters, I cannot say with any certainty as to the validity of the argument, however, the USA (OK i am in the UK) has a fair use law which pretty much states as long as you are not cloning the use or passing it off as your own and not selling it to a mass market you are entitled to use the product/words/copyright. This being the UK (where I am) I would like to know if I am paying for a product, then selling on that product, (could be a DVD on ebay that is now an ashtray) then no copyright is infringed. I am not replicating, mass copying or any other repellant distribution of the artists original work, I am simply taking a purchased item and selling it on in a way that suits me.
So to surmise, if I sold a DVD I bought but melted it into an ashtray and sold it on ebay, how am I infringing copyright law? I have paid for the item, I have used the item as i see fit (that is as an ashtray) and then sold it on ebay, logically (in my mind, which can become confused!!!) I own that item, not the concept, therefore i should be able to sell the item, not the concept?
YES or NO?

[AndyJ]

Hi KJR42,
Taking your question first, I agree with you that were you to be doing this in the US it is quite likely this would amount to fair use since it would be transformative use, and US law does not include any substantial protection for moral rights.
In the UK our fair dealing exemptions are much narrower and so there would be no specific defence of transformative use. However as I have tried to emphasise both in this thread and the one about greetings cards, there is no copying here just re-use of the original so the main part of the CDPA is not engaged. There might be a problem about the DVD as ashtray idea if the rights owner could persuade a court that this was a derogatory treatment of his work. But frankly that would never get to court, because the DVD itself is not the copyright work, merely the medium on which the work (the songs etc) are carried. And pieces of silvered acetate are not artistic works:

Section 80 Right to object to derogatory treatment of work. The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

so distorting or re-moulding a DVD would not amount to derogatory treatment. Arguably the tracks could no longer be played once the DVD was re-shaped. but I don't consider that derogatory treatment of the songs, otherwise every instance where a DVD or CD got scratched would amount to derogatory treatment.
Just as a postscript, the law in the UK is likely to change shortly to include a fair dealing exemption for pastiche or parody (see here for more details) and I have little doubt that your re-use proposals could be covered by the definition of pastiche (which we have not yet seen). On the basis that this is the way the law is likely to go, I think it indicates that your position with regard to any possible infringement claim will be strengthened in future.

[AndyJ]

Typo,
I don't have time to answer your points in detail, but you are confusing the issues.
When I posted the earlier remarks about collage which you quoted, that was clearly in the context of the works being copied, not being re-used as here with KJR's developed idea. Originally in his first post KJR was talking about copying the artwork from album covers onto various objects, hence my reply that copying would probably infringe.
We then moved on to discuss the idea of re-using the original article without copying, and it was in this context that my later remarks were framed. We were then on similar ground to that covered in the greetings card thread so I don't intend to re-iterate what I have said there.
As for the Own-it link, that is clearly about design right, not copyright. Since the surface decoration of an object is not subject to unregistered design right (and there is no suggection that these album covers have been registered as designs) then the Own-it comments have no relevance here.

[KJR42]

One interesting thing I wish to add as its arrival through the door this morning made me wonder.....
I bought the wife a present for her birthday, this present was to have her photo made into a Warhol type picture, the same as his pop art picture of Marilyn Monroe (6 faces on one canvas), this is slightly off topic as it is not an original (I wish!!) merely a copy of the concept. So whilst it is a "copy" insomuch that my wife's face has replaced Marilyn's face, I would have thought this breaches some aspect of copyright? sorry for taking us off topic but thought it worthy of throwing in the mix, I am working my way through the parody reports, thanks for the link

[typonaut]

There might be a problem about the DVD as ashtray idea if the rights owner could persuade a court that this was a derogatory treatment of his work. But frankly that would never get to court, because the DVD itself is not the copyright work, merely the medium on which the work (the songs etc) are carried. And pieces of silvered acetate are not artistic works:

Section 80 Right to object to derogatory treatment of work. The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

so distorting or re-moulding a DVD would not amount to derogatory treatment.

I think we're going to disagree again...

I see it slightly differently, to do what you say, all the OP would need to do is to go down to his local electronics shop and buy the cheapest CD-Rs he could find. Moulding those into any shape he liked certainly would not amount to derogatory treatment. There doesn't need to be any connection with any protected work.

However, for anyone to take this offer seriously, the OP is required to make a connection with that work, and to treat it derogatorily, by inference.

Distorting blank CD-Rs does not create a product offering. Distorting specific CDs/DVDs may create a product offering, and may amount to derogatory treatment of that work (because the work is identifiable - there is no point otherwise).

An aside
Years and years and years ago the late Kenny Everett put out a vinyl album of the worst songs ever recorded (I don't recall how many tracks there were on the album). One of these tracks was William Shatner's version of Dylan's Mr Tambourine Man.

The vinyl was a putrid green colour with coloured splashes across it. Everett suggested on the sleeve that once you'd listened to the record you could subject it to heat and turn it into an ashtray.

Nothing new in rock and roll.