Hand painted canvas

'Is it legal', 'can I do this' type questions and discussions.
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em1979
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Hand painted canvas

Post by em1979 » Thu Aug 12, 2010 9:36 am

if I wanted to sell a had painted canvas that used an album cover image would I be allowed? (the image has been modified)

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AndyJ
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Post by AndyJ » Thu Aug 12, 2010 10:24 pm

Clearly if the painting is your property, then you are certainly allowed to sell it. What I assume you asking is,' is there a copyright problem, only if I sell this painting?' In all probabality the painting would be classed as a derivative work if it was recognisably based on the artwork of an album cover, and that would technically require the permission of the owner of the copyright in the album artwork. Since the painting already exists, you could try to obtain retrospective permission If your hand-painted work had enough origianality, your painting might then enjoy copyright as well. The key to deciding these things is the degree to which the original artwork has been copied. Generally the courts take a view based on the qualitative degree rather than the quantitative degree to which something has been copied. So it would not be a matter of percentage by area in the case of a painting (or the number of words in a literary work, or the number of notes in a musical work) so much as the degree to which the overall look and essence of the original work has been copied. Merely transferring an artwork to a different medium would be an infringement of the original copyright, unless permission is obtained.
I am assuming that you painted the canvas yourself. If you did not, and you merely own it, then selling it would constitute secondary infringement by dealing in an infringing copy, because you know it is a copy. If you had not known this to be the case, that would have been a defence to an allegation of secondary infringement.
While the painting is still in private use, realistically you run very little risk of any action being taken against you, but by making it available for sale, especially if that is done via the internet, you increase the chances of the copyright owner of the original work finding out. Whether or not that would lead to any action on the part of the copyright owner is anyone's guess.

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