Used Greetings Cards

[Amanda]

Hi All

Can someone tell me if I can re-use old greetings cards (the pictures and words ... just "Happy Birthday ... Not the verses) ... making them into new ones & sell them ??

Is this illegal / against some kind of copyright law ??

Cheers

[AndyJ]

Hi Amanda,
I am not quite clear about what you mean by 're-use' in this context. If you mean you want to use the original card again - a kind of re-cycling - then that should be OK as you will not be copying anything, just giving an old card a new outing.
However since that might be somewhat difficult to do after the previous user has written "lots of love from Auntie Florrie" all over it, I'm guessing you want to cut off the picture and stick it on a new card with the original greeting re-printed inside, or something similar. If so, then reproducing the greeting might infringe if it was something more than Happy Birthday or Merry Christmas etc, but re-using the original picture would fall within the doctrine of exhaustion of rights, which means that the rights owner cannot stop you re-using, destroying, re-selling or giving away the original card.
Clearly if you were to scan the picture and re-print it on a new card that would be copying and so would amount to infringement of copyright.
I hope this helps.

[Amanda]

Thanks for your prompt reply.

I was thinking of cutting out the nice pictures and / or just the text "Happy birthday" from the front, re-mounting that in a variety of ways on a new card,

A sort of new topper made from a picture on a used card !!!

I wont be photocoping it will be the original picture or part of it

[typonaut]

Thanks for your prompt reply.

I was thinking of cutting out the nice pictures and / or just the text "Happy birthday" from the front, re-mounting that in a variety of ways on a new card,

A sort of new topper made from a picture on a used card !!!

I wont be photocoping it will be the original picture or part of it

I suppose this falls into the category of collage. Assuming that you are just making these as one-offs, and giving them to individuals as greetings cards, it would seem difficult for anyone who might be a rights holder to find out if you have infringed any rights they may hold in the original.

ie, even if it is an infringement, under those circumstances, it is difficult to imagine anyone enforcing any right against you. As to what the law would say...

Collage can fall into the category of artistic works, which is defined in Copyright Designs and Patents Act 1988 s4(1)(a).

a graphic work, photograph, sculpture or collage, irrespective of artistic quality

I would tend to agree with Andy that any use you might make of other people's work, ie the cards you intend to use, would be below the level of "significant", and thus de minimis/ephemeral, and would tend to exhaust their rights upon the sale of the card. But you should probably be cautious if you intend to do this in a commercial manner, or wish to exhibit your work.

The texts I have seem to be largely silent on the issue. The cases I can find are merely quoting the above section of the CDPA, or debating the meaning of collage, so aren't of any help as far as I can see.

[typonaut]

There is an article in the Daily Mail about Damian Hirst threatening to sue a collage artist over several pieces that were displayed and sold.

In this piece, the following quote is not true:

Cartrain, from Leytonstone in east London, added that there were innumerable examples throughout history of artists borrowing from other people's work, and the rule was if you adapt and add to a work it becomes your own.

Andy also had some input on another thread asking about collage and the effect of copyright.

[Amanda]

Thank you for replying.

I am not thinking of becoming "commercial" or "exhibiting"

I just love being a bit "crafty" & like to re-cycle as much as I can.

It was just an idea as I make this type of card, up to now to give to relatives ... but as I have had quite a few comments "they are brilliant you should sell them" (& now I have a growning stock pile) ... I was contemplating selling some at craft sales or on ebay.

They are all individual no 2 the same .... just dont want to do anything illegal.

So I guess in your opinion I would be ok ??

Cheers !!!

[typonaut]

I was contemplating selling some at craft sales or on ebay.

That's essentially what we would term "commercial", making and selling the cards becomes a commercial enterprise. You'll be showing images of the cards/publicising your work, so that anyone interested in the rights of the original card will find it easier to see what you are doing, and take action against you if they feel that you are infringing their rights.

Having thought about it a little, I think the basic issue is whether what you take from the original card is (i) protected in copyright and (ii) a substantial part of that card (not necessarily a substantial part of what you make.

For (i), I think there is at least a chance that it is protected, and I think that for (ii) if you are taking a piece of display typography (something on the front of the card that says "Happy Birthday", for example), then there is a chance that is "substantial" (in this sense, "substantial" doesn't mean "large", or over a certain percentage, it just means that it an element that is intrinsic to the original design).

What Andy said earlier was that the sale of the original card may well "exhaust" the rights in that card. I think this is true to a certain extent, in that the seller could not prevent resale, or reuse of the card, because no further copy has been made. But I'm not sure that concept really applies where you are taking elements of the original and integrating them into something else - no matter that you only create one such work at a time.

So, to be safe, you would need to be on the right side of the threshold of (i) and (ii) above. I think you probably cannot do that, so it is possible that what you do could be found infringing.

[AndyJ]

As I have mentioned in another thread on a similar topic in the music forum, I don't agree with Typonaut's analysis here.
The question of substantiality simply does not arise because as far as the picture on the front of the card is concerned there is no copying involved, and the exhaustion of rights applies. Where there is text inside the card you have already told us you do not intend to reproduce any verses etc, just the simple greeting (happy birthday etc) which will not attract copyright in the first place because they are neither original literary works nor are they sufficiently numerous to get over the de minimis threshold.
The typographical layout protection provided by the Copyright Designs and Patents Act would not apply since the only element from the original card to be re-used (not copied) would be the image (even if that image incorporated some words).
Just for the sake of completeness it is worth stating that no other form of intellectual property law (eg trade marks, design right or passing off) would be engaged by your proposed activity.

[typonaut]

The typographical layout protection provided by the Copyright Designs and Patents Act would not apply since the only element from the original card to be re-used (not copied) would be the image (even if that image incorporated some words).

Now I think I have an idea of your rationale, and I believe that this is flawed.

This is the way that I understand the idea of "typographic arrangement": the concept protects facsimile copies of works, and really only has any importance where the underlying text has no copyright protection - usually because such rights have expired. That is, the Oxford University Press version of Macbeth is protected from facsimile copying by other publishers, even though the underlying text has no protection (or at least Shakespeare's input has no protection).

In relation to the current debate I think you have the wrong subject matter. We are not dealing with "typographic arrangement", but "graphic work":

4 Artistic works.

(1)In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
(b)a work of architecture being a building or a model for a building, or
(c)a work of artistic craftsmanship.

I'll illustrate my thinking on this. If I set "Happy Birthday" in Helvetica, coloured black, no effects, on the front of what I call a greetings card, then I think we would both agree that this is unlikely to benefit from any kind of copyright protection.

However, if I produce a sophisticated calligraphic work, that also can be read as "Happy Birthday" I think we can also agree that this would be likely to fall into the bounds of s4 CDPA, and thus benefit from the associated, protected, rights.

Clearly these two examples represent the possible ranges on a very granular axis of "design", or "graphic works". It is my opinion that anything likely to be found on the front of a commercial greetings card would fall closer on this axis to the latter example I have given, rather than the former.

Hence I appear much more cautious than you in assessing this particular issue.

I also believe that this matter is four square with your previous comments on collage (of which this is a species).

[AndyJ]

Ok I think that since we are looking at this in some detail it is worth splitting the issue down to its basic parts.
If Amanda cuts the picture off an existing card and sticks it on another piece of card, that infringes nothing because there is no copying, merely re-use. (I am ignoring the moral right issue as I don't think it remotely applies here).
For the purposes of dealing with the image on the front of the card it doesn't matter if it is just a picture or a combination of picture and text because, again, it is not being copied, but re-used. I mention this because in a previous post you (Typonaut) said:

if you are taking a piece of display typography (something on the front of the card that says "Happy Birthday", for example), then there is a chance that is "substantial"

Next Amanda creates her own wording to go inside the card. It is worth re-iterating what she said about this:

just "Happy Birthday ... Not the verses

There is no mention of special fonts or calligraphy and so I am assuming she is going to effectively create her own new typographical layout, but even if she used the same font and colours as the original card, although this would now be copying, it would not be infringement because the words Happy Birthday etc are commonplace and not the original work of the first card maker, and in any case the amount of words used would be de minimis.
While it is possible to describe Amanda's finished work as a collage (I wouldn't personally - see Mann J's analysis in Creation Records at para 10 et seq), that description would apply to Amanda's work, not the original, and so is irrelevant here for the purposes of deciding whether what Amanda wishes to do would be infringement.

[PCRuppel]

To continue from this old 2013 used greetings cards discussion here at https://www.copyrightaid.co.uk/forum/vi ... php?t=1401, I wonder if I might inquire further on the use of used greeting cards and possible copyright infringement and if same would apply in United States.

Over the years, I have saved tubs of greeting cards me and my family have received and exchanged and had some thoughts on how I could re-purpose them but wanted to find out if I would be infringing any copyright laws. I wanted to cut the original card on the front and decoupage it on wood, etc. -- would also be nice if I could also cut the words on the inside and decoupage them on the back as well.

It would be for resale purposes as a craft on my Etsy shop but there would be no copying - only reusing the original card and text and giving them new life. There would be no duplicates -- one privately received greeting card/text turned into one handcrafted decoupage item for sale.

Thank you

Pat Ruppel

[AndyJ]

HI Pat,

If you want to do this in the USA, then the doctrine of Fair Use will almost certainly allow you to go ahead without any problem.

Essentially, fair use permits the transformation of a copyright work without the need for permission from the copyright owner, and your decoupage approach would certainly count as transformative. The way the US courts approach the fair use issue is to consider four factors:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

At first glance it might appear that these factors might not weigh in your favour, but you would be selling a sculpture rather than a greeting card and so on the first and second factors there is a significant difference in the purpose and nature of the two items. Furthermore the sale of the original card would have been in large volumes, whereas your decoupage items would be single individuals posing no economic threat to the greetings card manufacturer. This is even more the case when one considers the relatively short shelf lfe of a greetings card, such that it is unlikely that the actual card you decided to re-purpose would be on sale now. In other words the two items would not be competing in the same marketplace.

However the same thing does not apply in the UK. The UK's Fair Dealing exceptions are somewhat narrower and don't include anything like the transformative use concept. I think that your decoupage sculptures would be analogous to adaptations of the original artwork and as such they would need permission from the original copyright owner (see section 21 of the Copyright Designs and Patents Act 1988, although this section specifically excludes artistic works).

I hope this helps you.