A Question About Copyright

[Quiet_Cool]

For anyone who might have some insight. What all is protected under "artistic interpretation"? I've seen Warhol's Campbell's Soup Label prints and his Marilyn Monroe prints, etc. and things like them. The question I have is, when can you use a famous image in your art and when not.

An example of what and why I'm asking: If I take an old picture of say... I dunno, Bella Lugosi or Boris Karloff, and use it in order to paint a picture in oil paints in the same fashion, not changing anything intentionally, but still using the photograph and recreating it in a different medium. Do I need to contant the copyright holder and obtain permission?

And what if I were to do the same using a registered trademark, like the aforementioned Campbell's Soup Cans? Would there be a difference?

I figured Lauren Hynde would have the skinny on this, if no one else. A link to any posting of the laws/guidelines/etc. would also be appreciated.

Yes, I'm asking because I'm too lazy to look it up and interpret myself.

Q_C

 

[Guest]

Nope, as far as I am aware (and that might not mean shit, LOL!), there are no copyright laws covering an original painting (it would be an original piece of work), which is a reproduction, or interpretation of a photograph.

I think this comes under the heading of "Homage".

But, I might be wrong.

Lou

 

[Lauren Hynde]

I believe I can at least make it more confusing.

Here is an excerpt I found on the web about this very subject some time ago:

***​

In March of 1999, an artist posed this question:

"I make collages. If I use a copy of a work in the public domain, am I infringing on copyright?"

Among the first responses to this query was one from an old friend of the Town Meetings, Tyler Ochoa, Professor of Law at the Whittier Law School. Citing the recently-decided case, Bridgeman v. Corel, he affirmed that "a photograph of a public domain art work cannot be copyrighted (based on lack of originality), so this would not be an infringement." He continued, however, to caution the artist that this didn't mean that someone might not attempt to sue her, purporting to own copyright in the image. He then went on to explain that the process of determining what is a public domain image of a work of art is not as easy as it might appear.

Ochoa's message spawned another that brought forward examples of recent appropriation and another question, "is this fair use?" The first involved the photography of Lauren Greenfield that was used by the painter Damien Loeb. Loeb juxtaposed images from one of Greenfield's photos with another in his painted version of the two that changed the context and message of Greenfield's original work. The images from the photos were transformed, but still individually recognizable.(3) Another example of appropriation was mentioned, the famous Rogers v. Koons (960F.2d 301 (2d Cir. 1992) case in which Jeff Koons used the image from a copyrighted photograph (puppies) and had it transformed by Italian woodworkers into a three-dimensional work. Claiming that the transformation was a parody of the original, Koons attempted to use fair use as his defense. The Second Circuit rejected Koons' claim.

As you can readily see, the original question has already been stretched a bit. The question regarding a public domain image has turned into one about any image of an artwork. The reason is that the Bridgeman decision speaks to the reproductive aspect of photography in capturing the underlying artwork or image, not just the fact that the underlying object might not be eligible for protection if it has already entered the public domain. As a faithful rendition of the original underlying artwork, herein lies the problem: lacking sufficient originality and uniqueness it does not merit separate protection under copyright. Merely changing the medium, from a photograph to a 3-D object, was not enough to convince the court in this case.

Next Duchamp's famous ready-mades and Warhol's Pop Art glorification of cultural icons (Coca-Cola, Marilyn Monroe, Campbell Soup, Elvis) were brought into the discussion. Had these artists obtained permission for their appropriations, asked someone? Did anyone object at the time?

The fabric of this discussion is already showing promise. New threads woven in continued to add dimension and color to the original question. The question soon developed into one about originality v. skill and the US concept of public welfare regarding access v. natural rights that are inherent in many other country's copyright laws. The argument then moved into the difference between creative expression and useful articles (we're now back to Duchamp's ready-mades) and the first-sale doctrine that would have allowed Duchamp to use a lawfully-acquired article as an object for public display.

For the next few days, the discussion centered on the question of faithful reproduction vs. photographic (i.e., creative) reproduction. Participating at this stage were our own Robert Baron and our colleague Amalyah Keshet from the Israel Museum. Amalyah argued strongly against the Bridgeman decision, using her experience with artworks and reproductions to suggest that there is much more involved than mere sweat of the brow in photographing artwork. What followed was more discussion on the issues of access to objects in museums and collections, especially objects that are no longer protected under copyright.

Eventually the discussion returned to Professor Ochoa's statement regarding the difficulties of determining public domain status, since the conditions under which copyright was granted between 1909 and 1978 were more regularized and rigid than they are under the now revised law. Also the requirement of publication as a condition for copyright is not as clear with an artwork as it would be for a traditional print work, like a book. On the other hand, we were reminded by a discussant from France that there are other means to protect cultural icons and the French are using them. The light show created for the Eiffel Tower is copyrighted in France. Therefore this venerable monument is in the public domain only during the daytime. At night it is protected under copyright and one can also be sure that the copyright will be renewed as needed, as soon as a new lightshow is installed, thereby ensuring perpetually protection.

The next topic in this thread argued that the high cost of making images justifies the high cost of fees associated with the use of museum-owned photographic reproductions of their public-domain objects. We then returned to a discussion of museums, public access, and how policies prohibiting access begin to look like strategies for canceling public domain rights and fair use opportunities.

This thread lasted for over a month and in the end, there was no clear answer to the artist's original question, despite the lengthy discussion that it spawned.

***​

So, your options seem to be:

a) Get the authorization. Most times, all you have to do is ask and people will let you.

b) Choose a very old photograph (prior to 1978 should do it in most cases, but 1909 if you want to be absolutely safe)

c) Risk it.