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Repurposed Art

Legal Uses of Others' Copyrighted Artwork

I'm not sure this question is about copyright or trademark, but maybe it is. I'm wondering, what are the limits to reusing, recycling, upcycling, etc., an item and selling the new piece of artwork?

I see lots of "repurposed" items for sale on craft Web sites.

For example, notebooks made out of Cheerios boxes.

How about gluing a page from a calendar onto the front of a notebook and then selling that?

Is that different than rolling up pages of a magazine into paper beads and selling the beads?

Or how about making magnets with images from comic books?

Just curious. Thanks for your help.

Carla

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I always tell my readers that I am not a copyright attorney and if they intend to sell anything that uses anyone else’s creative work, they need to consult one.

Neither am I a trademark attorney. But I do have some thoughts on your interesting questions.

First let’s distinguish copyrights from trademarks. Both are protections of intellectual property under federal law deriving from the U.S. Constitution.

Article 1, Section 8, Clause 8 of the Constitution empowers Congress to “promote the progress of science and useful arts, by securing, for limited times to authors and inventors, the exclusive right to their respective writings and discoveries.” This is termed copyright protection.

Article 1, Section 8, Clause 3 states that “Congress has the exclusive authority to manage commerce between the states.” Trademark protection derives from this congressional power over interstate commerce.

Copyrights

Since 1978 under U.S. law, copyright automatically attaches whenever an author (broadly defined) “fixes” a work in tangible form. It is not necessary to register a copyright, though registration enhances the author’s protection.

Copyright protection remains in effect until 70 years after the author’s death. Almost all works created before 1923 are in the public domain and are free for commercial use.

An author may license his or her work to others to be used for commercial purposes.

For example, Scrap Girls offers commercially licensed versions of some of its products.

Graphic artists who pay the slightly higher price for the commercially licensed products can then use them to create products they intend to sell or publish.

Trademarks

Federal trademark protection covers the intellectual property of companies or products involved in interstate commerce. Federal registration for trademark protection is a prerequisite to bringing a trademark infringement lawsuit in federal court.

All fifty states also have trademark protection laws, primarily to protect businesses operating within the state and not involved in interstate commerce.

Trademark protection law is designed to prevent others from hurting an established business by using or mimicking any part of their name or product name, logo, slogan or advertising.

To learn more about copyrights and trademarks, buy or borrow attorney and author Lee Wilson’s books: The Copyright Guide: A Friendly Handbook for Protecting and Profiting from Copyrights; and The Trademark Guide: A Friendly Handbook for Protecting and Profiting from Trademarks.

These books teach the ins and outs of copyrights and trademarks in a logical fashion, using lots of examples to make a complex subject easy for the layman to understand.

The Fair Use Doctrine

This is where things get tricky and why you will need a copyright lawyer if you decide to sell works that contain other's trademarks or copyrights.

It is well beyond my ability and the scope of this article to get into a thorough discussion of fair use and how it applies to your question.

This is the subject of law books and law review articles.

There have been many lawsuits involving fair use. If you are interested start with the Wikipedia overview of this subject.

So, Who is Likely to Get Sued?

Copyright holders will almost always pursue those who violate their copyright if they are able. Think of copyright infringement as a form of theft. The person infringing is actually stealing the intellectual property of another and selling or otherwise profiting from as if it were his or her own.

Trademarks are a little iffier. Take the following case in point.

Andy Warhol’s Campbell Soup Can Paintings

Remember Andy Warhol’s famous pop art paintings of Campbell Soup Cans? He started painting them in 1962.

At that stage, they were very realistic duplications of the Campbell’s labels.

Certainly, he “borrowed” the Campbell’s trademark for his own financial gain. [In 2006, Warhol's small painting of a can of Campbell's pepper pot soup went for $11.8 million at a Christie’s auction.]

I think the key trademark points are that, while Warhol used the Campbell’s trademark, he was neither competing with Campbell’s soup, nor was he harming or diluting the trademark - the painting could reasonably considered a parody and thus protected under fair use.

Wisely, in my opinion, the Campbell Soup Company did not sue Warhol for trademark infringement. They recognized the brand enhancement his paintings provided. In 1965 they even provided Warhol with actual soup can labels to be used as invitations for an exhibit. In 1985, Campbell’s commissioned Warhol to paint a series of their dry soup mixes.

Your Examples

Remember, I’m not an attorney, so these are my best guesses on the specific examples you posed.

Manufacturers who spend millions on establishing a brand name or presence might not be bothered if their trademarks are presented in a different way to the public, After all they are getting free publicity.

However, if the product is so pervasive and profitable, they will probably seek licensing fees.

I think notebooks made out of Cheerios boxes could constitute trademark infringement, but maybe not.

There can be conflicting legal decisions on what appear to be very similar cases.

Who knows, one of those artists could be the next Andy Warhol! General Mills might choose to bring suit if it believed the trademark was being tarnished. For example, if the artist added pornography or obscenities to the Cheerios label.

Gluing a page from a calendar onto the front of a notebook and then selling it probably constitutes copyright infringement unless the artwork is in the public domain.

Rolling up pages of a magazine into paper beads and selling the beads – no problem. You’re recycling something that would otherwise end up in the trash. You’re not using an artist’s work per se. The artist’s work is obscured beyond recognition. You’re just using the colorful paper.

Making magnets with images from comic books and selling them – probably a copyright violation.

Are you confused? Me too! That’s why I keep saying, if you want to sell any artwork based on someone else’s intellectual property, get thee to a lawyer!

P.S. Even though I’m not a lawyer, I answer questions such as yours, to encourage artists to think through these issues before they get themselves into trouble. “Let’s be careful out there!”

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Thank you so much for your detailed reply and insight. Your thoughts on the topic are in line with what I was thinking. I think it's safest to use my own original work on anything I intend to sell.

Again, I appreciate your taking the time to answer my questions!

Carla

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