Selling vinyls/CDs/album artwork that has been modified

[Shannenk149]

Hi!

I currently run an account on Instagram in which I edit existing album covers by adding glitter to them. The current works are classed as “fan art” and I do not make any money whatsoever as it is just a hobby.

A few of my followers have stated that they would love to buy actual physical copies of the albums in glitter and I was wondering if there would be any legal issues surrounding this?

I’m assuming that for me to just print out the album cover and add glitter to it to sell would be illegal, but if I was to buy actual physical copies of the vinyls from the musicians/bands, modify them with glitter, frame them etc, and sell them - would this be legal? Could it be stated that they are a second hand item and that the artist has profited from my purchase of the vinyl and that the price covers the use of additional materials (glitter/equipment/frames etc)? I’d also like to know if I’m able to sell digital copies (a “remove watermark”) service.

Here is what my work looks like if it helps:

https://Instagram.com/urfaveinglitter

As you can see - the album artwork itself remains much the same but is enhanced by adding glitter. I have tried reading through similar forum threads on here but not sure if the information given applies to my situation

Any help would be greatly appreciated!

Thank you
Shannen

[AndyJ]

Hi Shannen,

You are right in believing that making copies of album covers would infringe the copyright in the original artwork and so it is not advised. But your second idea of buying up second-hand albums and sleeves and modifying them would be OK, as it falls within something known as the doctrine of exhaustion of rights, with one minor caveat. An artist or photographer whose work is used on an album sleeve is entitled to a moral right not to have their work treated in a derogatory manner which harms their reputation or standing as an artist. This right is rarely enforced in the UK, and I suggest that to infringe it you would need to do something fairly unpleasant to the artwork before this might be subject to a claim. Some glitter seems unlikely to qualify.

On your other point, I'm not clear what you mean by selling "digital copies (a “remove watermark”) service". If you mean digital copies of the original album sleeves either as found or after modification by you, then this would also constitute infringement. What's more, removing a watermark which identifies the author of a work can, in certain circumstances, be an offence contrary to section 296ZA. Even if when removing a watermark is not seen as serious enough to warrant a prosecution, evidence of attempts to remove identifying information can lead to additional damages being awarded against an infringer for flagrancy (section 97). If I have misunderstood the point of this part of your question, please come back to me.

[Shannenk149]

Hi Andy!

Thanks so much for your reply, it’s really helpful and gives me some hope that I can make this idea work. It looks like I should hopefully soon be able to progress to making prototypes - very exciting!

I should clarify for my “remove watermark” service this would be selling digital copies of the modified album artworks. When I post them on Instagram I always include a watermark of my Instagram handle (@urfaveinglitter), to prevent people reposting my glitter edits and claiming them as their own. A “remove watermark” service would work by me uploading downloadable versions of the glitter edits to a website, the user could then pay a small fee to remove the @urfaveinglitter handle, download the edits and then print these out at home or post them on their social channels etc. Hope that clarifies things!

Thank you,
Shannen

[AndyJ]

Hi again Shannen

I suspect that I was not sufficiently clear in my earlier reply that while you would not infringe copyright by taking a physical album cover and altering it by applying physical glitter on to it, this does not give you any rights to make copies of your altered image, because the owner of the copyright in the underlying album artwork still retains their right to authorise reproduction. All that you would own would be the rights to the additional creativity which you put in. In other words you may certainly re-sell the individual altered album cover itself, but you can't make digital or any other types of copies of the album cover without first getting permission from the copyright owner (usually the record company). Perhaps I should have realised from your examples that you were proposing something along these lines.

It would be permissible to publish a small thumbnail image of your physical artwork in order to advertise it for sale, (see section 63) but any thumbnail should not be of a quality that would allow anyone to enlarge the image to any usable extent. And you should not encourage anyone to share your work, because that also means sharing (ie copying) the underlying album artwork.. This could lead to a separate act of infringement known as authorising an act of infringement (section 16(2)).

I'm sure you will think this is all very unfair and at odds with what many people regularly do on sites like Instagram, Etsy and Deviant Art. However this is the legal position and I wouldn't want to inadvertently give you the impression that what you propose to do is without risk.