The art of Kandinsky - good to go or no?

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MrsTwosheds
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The art of Kandinsky - good to go or no?

Post by MrsTwosheds »

Good morning All

I have another question if I may, please?

I am making a carnival-type jacket which I would like to be ‘in the style of’ Wassily Kandinsky (meaning that it’s my intention to pinch large details from some of his jolly paintings and stick a few sequins on). It would mostly be a random appliqué affair, but unmistakably (I hope) Kandinsky.

I had read that his work was in the public domain (hoorah!) but now I’m not so sure. Wikimedia Commons seems to be saying that it is in the public domain in Russia (where he was born and worked until 1921), that it may possibly be in the public domain in the European Union (where he worked in Germany and France, before dying in the latter country in 1944), but that it most definitely isn’t in the USA as the US copyright was restored by the URAA. There are dire warnings about uploading photos/scans unless published prior to 1927. Earlier publication seems to be in the clear then, but the chances of my finding an old book containing colour illustrations seems pretty remote. Does the US action impinge on copyright worldwide? Does this preclude my splashing bits of his paintings on my coat?

Any suggestions gratefully received, as always. Thank you so much, guys.
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AndyJ
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Re: The art of Kandinsky - good to go or no?

Post by AndyJ »

Hi Sally,

[Spoiler: the last sentence tells you all you need to know]

This is a really meaty question on several levels, so I delayed answering until now when I had time to properly consider all the ramifications. Let's start with whether you using 'large details from some of his jolly paintings' would constitute infringement, assuming copyright existed. The law says in order to infringe, someone must have used a substantial part of the original work. There is no definition of what constitutes substantial, but in UK law at least it used to mean anything which represented the essence of the work. EU case law has tended to broaden this concept out, for instance in saying that as few as eleven words* could amount to a substantial amount of a written work. Since you talk about large details which presumably will be fairly recognisable as Kandisky's work, rather than in the style of Kandinsky, what you want to do would probably amount to infringement presuming that none of the statutory fair dealing exceptions applied. This use would not seem to fall within quotation or criticism/review so I don't think any of the exceptions will apply.

That means we need to consider whether copyright in Kandinsky's work still exists.The law we need to look at is that of the countries where Kandinsky produced the various particular works, so mostly either Russia or Germany as far as I can see. In Russia (technically the Soviet Union, but that is not important here) prior to the 1993 Copyright Act, the term of copyright protection was the author's lifetime plus 50 years from the end of the year in which he died. The 1993 Act did not alter the copyright term. As we know Kandinsky died on 13 December 1944, that is to say more that 70 years ago and so as far as Russian law is concerned his works created in Russia (and also for those works he created outside Russia) Russian copyright no longer exists.

At the time he was painting in Germany, German copyright law set the term of protection at the same lifetime plus 50 years as applied in Russia. This would have meant Kandinsky's paintings created in Germany would have remained in copyright until 31 December 1994. This means that Kandinsky's work was not affected by the EU's Term Extension Directive 93/98/EEC which extended the post mortem part of the term to 70 years. This Directive only applied to works which were still in copyright in an EU member state on 1 July 1995. However, even if the Directive had affected Kandinsky's works, protection under the new regime wouuld still have ended on 31 December 2014. Thus as far as Europe including Russia is concerned Kandinsky's work is no longer in copyright.

The Uruaguay Round Agreement Act which you mention says this about foreign works which for one reason or another had not previously been protected under US copyright law:
Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.
a form of words which raises more questions than it answers. However, to keep things as simple as possible, the term for such works became 95 years from the date a work was first published. Paintings, of course, are not published in the true sense that copies of the original are offered to public. However a painting is deemed to have been published if it is displayed in public and the public is able to make copies of the work, for instance by photographing it or making sketches or detailed drawings etc. Thus a painting which was sold direct to a patron and was only ever held in a private collection would not have been published. However I think that as far as the majority of Kandinsky's work is concerned, you can assume that it was published at the time it was first exhibited. That means that all of his works exhibited prior to 1927 are in the public domain in the USA - which you already knew! However, for your purposes you can forget about the situation in the USA as you are creating your work of artistic craftsmanship here in the UK where copyright in Kandinsky's work no longer exists.


* The case in which this statement was indirectly made was a decision of the Court of Justice of the European Union (CJEU) known as Infopaq. However the court's remarks were in the context of a newspaper headline which assumed slightly more importance because, in theory at least, a headline is intended to encapsulate the essence of the following article, hence a headline consiting of 11 words is rather different to just any eleven words found within a general text, where they may form an insubstantial part of the overall work.
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
MrsTwosheds
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Re: The art of Kandinsky - good to go or no?

Post by MrsTwosheds »

Hi Andy

Oh, that is absolutely splendid, thank you! I’m hugely grateful for your extensive research into this knotty problem (I didn’t realise how complex it actually was, so really sorry about that 😬).

I shall crack on then! As always, many thanks for your speedy and erudite response and for your unfailing good humour.

All very best

Sally
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