I do a bit of painting, mostly traditional type stuff. But the other day I saw a photo of Black Sabbath’s 45, Iron Man and I thought that it might make a cool pop art piece. Sort of like the Warhol soup cans.
The more I thought about though the more I thought it might run afoul of some copyright law. Have things changed? I remember reading about a piece Andy did. He essentially took a photo from the front page of the paper, enlarged it, made a silk screen of it and just reprinted it. I think Fairey learned of such dangers when borrowing an image for his Obama Hope image.
I realize I would need to take my own photo for reference. But if I did that, would I be safe in painting the record for art?
IANAL but it seems to me you can do whatever you want. You’ll only have a problem if you try to sell it, give it away, or publicly display it. Hung on the wall of your den, no problem.
What you say is true, but only in the sense that for someone to get upset about your copyright violation they’d have to find out about it someone. If you make a copy and hang it in your den and no one but you ever sees it, then there’s no way for the copyright holder to find out about your infraction.
Copyright violation doesn’t have a “not for profit” exception, or an “in private” exception.
I had a brilliant, concise response to this written, and then I lost my internet and the post went to that great hamsterland in the sky.
It boils down to this. Campbell’s soup didn’t sue Warhol because their lawyers felt Warhol could prove there was no overlap between his product (art) and Campbell’s (soup), therefore no confusion, and no damage to Campbell. It also helped that Campbell’s enjoyed what Warhol did.
However, it should be noted that Warhol had already been sued by photographers for appropriating their images in his paintings, and one of them, Patricia Caulfield, settled out of court for royalties and two other Warhol paintings. Warhol was a commercial artist before he turned to painting, probably knew more about copyright and trademarks than any lawyer and guessed he might lose.
So you could probably paint the record with impunity. However, if the record label was using any part of it (like their logo) for “art” things, including putting it on a t-shirt or poster, you’d quickly get a nasty letter from their lawyers accusing you of trying to move in on their business.
Why was the design on the soup can trademarked, but not copyrighted? Was the copyright just expired? Some artist had to design those cans. I can see “this doesn’t violate our trademark because you’re not in the soup business” but copyright doesn’t have those restrictions. Or did Campbell’s explicitly grant Warhol the privilege to use their can design in derivative works?
IANAL, but I think that in the case of a court challenge, all Warhol would need to is is claim that his work is a satirical, which immediately exempts it from copyright restrictions. This wouldn’t be a hard case to make, since it’s a common interpretation made by art critics. Of course, in making this case Warhol might need to draw attention to how bland and ugly both the cans and the contents are in a much-publicised trial. I am sure that Campbell’s lawyer’s and marketing people would have given this due consideration.
As you note, trademark isn’t infringed if the two representations don’t overlap, which they don’t. And parody works are copyright exempt so long as the creator can demonstrate parody as the intent. So Warhol was never in any legal trouble as far as I can tell.
Now, after Campbell’s decided not to defend its copyright in this instance, Warhol made some glowing comments about how beautifully made Campbell’s soup cans were, but there’s no reason to think he would have said the same thing if he was interested in defending his work, or for that matter claim that he was being ironic when he made those comments.
I would think the OP could avoid copyright infringement the same way: claim that the work is a satirical parody. This won’t cover you if you just make a simple, direct copy, but AFAIK it will if the work is altered in some way that implies parody, such as Warhol’s multiple copies, altered colours, torn labels etc.
None of that will prevent you from being sued, it just means that you can probably win if you have the time and money.
Again, IANAL, but my understanding is yes, and they will probably win. That image is a trademark of the film studio/author, and has been used extensively to represent the film on posters, on novels, in books, in print advertisements etc. It’s an iconic representation of the work.
By displaying it essentially unaltered, the gallery would be infringing on that trademark. In simple terms, it is guilty of hijacking the studio’s advertising for their movie to sell tickets to an unrelated show. That’s not allowable. It takes some really strong and obvious alterations to even be allowable as parody. If Warhol replaced Nicholson’s face with that of an animal or Barack Obama, they would likely get away with it. But just subtly altering it by changing colours, pixellation or distorting one corner of the poster won’t cut it.
Note that the difference here is that it’s a violation of trademark, not copyright.
Because Campbell’s soup labels aren’t commonly produced as large images, it doesn’t infringe Campbell’s trademark to produce such an image. In layman’s terms, nobody would confuse the painting with the real use of a Campbell’s soup label, so it doesn’t dilute the work Campbell’s put into building a mental association for for that label or prevent Campbell’s from profiting from the label.
But in using the image you link to, Warhol has essentially reproduced any number of existing movie posters, novel covers and advertisements without permission. That does confuse consumers and dilutes the ability of the studio to use that image for advertising and hence profit from the work it put into developing the association of that image with the film…
If Warhol had used another, less iconic scene from the movie that has never been used on a poster, say the scene where they are taking their bags into the hotel, they would get away with it because that scene is only copyright, not trademarked.
It probably get’s legally trickier because Warhol is dead, and so not personally profiting. Provided that the gallery made it clear that they were showing it as a historical curiosity/museum piece rather than an artwork and didn’t use it in their advertising of the exhibition it might be clear.
But in terms of Warhol trying this while he was alive, I would think there’s a serius court case at the very least.
