Copyright question- using other people's artwork in your crafts

[Sam_Lowry]

I recently discovered the website Etsy and fell in love with it - discovering both things I wanted to buy, and things that I thought I could make myself.

My question is what is the legality of using artwork by other’s in your crafts?

For example, here are some buttons that someone made using art from a vintage book. (This was just the first example I found, but there are many instances of people using old picture books or magazines to make buttons, magnets, journals, and any number of other items).

[ul]
[li]Is this excusable because the book was old and probably not under copyright anymore?[/li][li]Would it be legal if I used a much newer and recognizable book and artwork such as Dora the Explorer and made buttons? [/li][li]Is this actually not legal at all to use other people’s artwork in your crafts without paying a royalty and if some copyright lawyers found the many violations on Etsy that there would be hell to pay?[/li][/ul]

I would appreciate if anyone could tell me more about the legality of this.

[iamthewalrus_3]

IANA Copyright Lawyer, but my understanding is that copyright doesn’t restrict your use of the material in this way as long as you’re not reproducing the original material.

If I buy a picture book, cut it up and paste it back together, and sell the collage, that’s perfectly legal. What I can’t do is sell prints of the collage, since that would be creating copies of a derivative work. Assuming that the craftmakers are actually using original published copies of all the artwork they incorporate into their own work, it’s legal everywhere that I know of.

Another possibility is trademark infringement. If the art they use involves trademarked characters or trademarked logos, I don’t know if that would expose them to a lawsuit or not.

[RealityChuck]

As long as you’re not making a copy, it’s not a copyright violation. You have the right to cut up the book once you bought it. This applies to any book or piece of artwork, even one published yesterday (assuming there are no trademark issues, but that doesn’t seem to be the case here).

It is only an issue if you make copies. If you want to use the same picture again, you need to buy another copy of the book.

[Nicest_of_the_Damned]

@Sam Lowry

I recently discovered the website Etsy and fell in love with it - discovering both things I wanted to buy, and things that I thought I could make myself.

My question is what is the legality of using artwork by other’s in your crafts?

Are you talking about making them for your own personal use or selling them or displaying them publicly? Selling or showing them would likely be a more complicated issue, although even just making them would be technically illegal in many cases.

@Sam Lowry

Is this excusable because the book was old and probably not under copyright anymore?

I don’t think “probably” is good enough. It is either covered by copyright or it isn’t. You would have to do some research on the image to find out. Remember that an image may be copyrighted even if it does not display a copyright notice. Unless you can be sure it is not, you must assume that it is.

@Sam Lowry

Would it be legal if I used a much newer and recognizable book and artwork such as Dora the Explorer and made buttons?

I think this might actually create more of an issue. I know that Mattel is infamous for going after people using the Barbie image.

@Sam Lowry

Is this actually not legal at all to use other people’s artwork in your crafts without paying a royalty and if some copyright lawyers found the many violations on Etsy that there would be hell to pay?

Fair use is a pretty tricky issue. Googling “fair use” and “derivative work” will turn up a lot of info. It can be dizzying trying to figure out the details. For instance, if a craft technique requires you to copy the image to a transfer paper, you are technically making a copy, which is expressly forbidden under most copyright notices. Most sources I have come across suggest that you err on the side of caution. I think it could come down to the side of the better lawyers.
There are a lot of sources of copyright free images that are made for just this kind of thing. The Dover book series is one of the better known ones: http://www.doverbooks.co.uk/

[RealityChuck]

@Nicest of the Damned

Are you talking about making them for your own personal use or selling them or displaying them publicly? Selling or showing them would likely be a more complicated issue, although even just making them would be technically illegal in many cases.

Not what she is describing: cutting out images from a book and using them in artwork. Copyright is not involved because no copy is being made. You can do whatever you want with a copyrighted work except copy is.

I don’t think “probably” is good enough. It is either covered by copyright or it isn’t. You would have to do some research on the image to find out. Remember that an image may be copyrighted even if it does not display a copyright notice. Unless you can be sure it is not, you must assume that it is.

Doesn’t matter if the work is copyrighted or not. No copy is being made, so copyright is not an issue.

I think this might actually create more of an issue. I know that Mattel is infamous for going after people using the Barbie image.

But they can’t go after people who resell their Barbie dolls. If an actual doll is being used, there’s no copyright issue at all – though they may decide it’s a trademark issue.

Fair use is a pretty tricky issue. Googling “fair use” and “derivative work” will turn up a lot of info. It can be dizzying trying to figure out the details.

Not really: unless a copy is being made, it’s not a copyright issue. Copyright is the right to make copies. IF you’re not making copies, you’re not violating copyright.

For instance, if a craft technique requires you to copy the image to a transfer paper, you are technically making a copy, which is expressly forbidden under most copyright notices.

Now, finally, you are making a copy, and copyright is an issue. Note that this is the first time in your post you mentioned the word “copy.” Copyright does not restrict how you use the copyrighted material other than preventing you from copying it. The question was about cutting pages out of a book; that is not and never has been a copyright violation.

Most sources I have come across suggest that you err on the side of caution. I think it could come down to the side of the better lawyers.

Always a wise decision – but since no copy is being made, copyright does not apply.

[Nicest_of_the_Damned]

@RealityChuck

As long as you’re not making a copy, it’s not a copyright violation. You have the right to cut up the book once you bought it. This applies to any book or piece of artwork…

For the purposes of the OP, I would say you are right, but some art is protected by The Visual Artists Rights Act of 1990 (VARA).

http://www.copyright.gov/reports/exsum.html

In 1990, Congress for the first time legislated limited moral rights of attribution and integrity to authors of narrowly defined works of visual arts. These rights…guarantee to authors of so-called fine arts and exhibition photographs the right to claim or disclaim authorship in a work; limited rights to prevent distortion, mutilation, or modification of a work…

But this is a nitpick. Work that falls into the protected categories would probably be too expensive for anyone to want to make into buttons:

www.rcaam.org/publications/VisualArtistsRightsAct.doc (link opens Word document)

Specifically, the Act defines a work of visual art as

–a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple casts, carved, or fabricated, sculptures of two hundred or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author, or

–a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
By definition of this Act, works of visual art exclude works for hire, technical drawings, diagrams, applied art, motion pictures, etc. It also does not cover any work not subject to general copyright protection.

[Nicest_of_the_Damned]

@RealityChuck

Not what she is describing: cutting out images from a book and using them in artwork. Copyright is not involved because no copy is being made. You can do whatever you want with a copyrighted work except copy is.

That may well be what she means, but it is not clear to me from the OP that she is not talking about making copies or using techniques that require making copies:

@Sam Lowry

My question is what is the legality of using artwork by other’s in your crafts?..

For example, here are some buttons that someone made using art from a vintage book…

She mentions using art from the books, not pages from the books specifically. To me, that means she could be talking about the images, not the paper.

Did I mention that I am nitpicky?

But I agree with you, it makes a big difference in the answer to her question.

[Sam_Lowry]

Thank you for all the helpful replies. And Nicest of the Damned, I was just talking about cutting pictures from the books, not making copies of them, but I realize that I wasn’t perfectly clear in the OP.

[Nicest_of_the_Damned]

@Sam Lowry

I was just talking about cutting pictures from the books, not making copies of them

After looking into this a little further, I am still convinced that the answer to your question really depends on the exact nature of the project, the specific source materials and whether or not you intend to sell or show the items you are making. Notice the subtle differences in the following two examples:
http://chillingeffects.org/derivative/faq.cgi

Question: Can I cut photographs out of a book, frame them, and sell them separately as “prints”?

Answer: Probably not. In essence, what you would be doing is creating a new work based on preexisting copyrighted material—the book of photographs. In one famous case, a person cut pages out of a collection of prints of the work of Patrick Nagel, mounted those pages on tiles and sold them separately. See Mirage Editions, Inc. v. Albuquerque ART Co., 856 F.2d 1341, 1343 (9th Cir. 1988). **The page-cutter argued that he had bought the book and therefore had a right to dispose of that copy of the book any way he wished, under the “first sale” doctrine. The Ninth Circuit held that the tiles were derivative works and infringed on Nagel’s copyright. In other words, the book buyer has the right to re-sell the particular book he has bought, but not to sell reframed pieces of the book. **

Question: Can I take photographs I’ve bought separately, frame them or mount
them on tiles, and sell those individual photos?

Answer: Yes. Courts have decided that a print that is sold “loose,” i.e., individually rather than as part of a book, can be framed or put on tiles and sold separately. The changes you would be making are not dramatic enough to make the “new” photograph a derivative work, and the first sale doctrine applies. Note, though, that the court that approved this use of “loose” images is different from the court that disapproved of cutting photos out of a book. Until the Supreme Court rules on the issue, we won’t have a firm nationwide rule.

Another issue is that even if you are able to create the object without breaking any copyright laws, photographing or publicly displaying the item for sale may be a violation of the copyright.

@RealityChuck

Doesn’t matter if the work is copyrighted or not. No copy is being made, so copyright is not an issue.

http://www.copyright.gov/help/faq/faq-definitions.html#infringement

What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

http://www.utsystem.edu/OGC/intellectualproperty/image.htm

Fair Use Is Not Just For Copies: It Applies to:
-Making copies of copyrighted works
-Making derivative works (for example, digitizing slides)
-Distributing works, including electronic distribution
-Displaying and performing works publicly

I should mention here that I am not a lawyer, but if you are planning to try to sell any of these items, I stand by my recommendation that you use only images that are cleared for re-use and sale. From what I have read here there is enough ambiguity in the rules that you could not get a meaningful answer to your question (especially from a non-lawyer) without a specific project to consider. If you attract the attention of a big company with deep pockets and a legal department they could make things very unpleasant and expensive for you. But I know this forum is not for my opinions so…

Straight from the US Gov site:

Fair Use (FAQ) | U.S. Copyright Office

Q) Could I be sued for using somebody else’s work? How about quotes or samples?
A) If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. **However, in cases of doubt, the Copyright Office recommends that permission be obtained. **

A few more links you may find helpful:

This is a thread discussing the same copyright issues. It was posted to the forum on the Etsy site mentioned in your OP:

Forum Topic - Copyrights?

A very long thread from another forum recommended in the Etsy forum:

Splitcoaststampers : Card Making, Rubber Stamping & Paper Crafting

This is a copyright FAQ page from a site that sells crafted greeting cards and crafts materials:
click here for link

[SnakesCatLady]

The daughter of a friend of mine took a course in glass bead making, and is quite good at it. Someone (I don’t know the woman’s name) saw some of her work at a student art show, and invited her to be the “student artist” at an art show this woman was hosting.

I went with my friend and her daughter to help set up, and just for general moral support. This was an 18-year-old’s first show, and she was very nervous - and is very shy to begin with. We had a couple of 6 foot tables draped with cloth and some homemade velvet stand-up boards to pin jewelry to.

A woman at the next booth, who had quite the professional set-up with glass cases and spotlights, came over and snootily eyed some of D’s work. She then goes over, grabs some sort of magazine and starts screaming at us that D has stolen her ideas! Because one part of one piece of D’s work vaguely resembled something she had a picture of in a magazine, she went bonkers! D’s mom and I both stood up, calmly told her that all of D’s work was original, and that 9-1- had already been dialed on the cellphone if she caused any more trouble. The organizer of the event even came over and apologized, but D was so upset she didn’t even go to the reception for the artists that night.

So be careful! If you are making something for your own use, that’s one thing. but getting into selling stuff can get weirdos onto you. I recently started making clay jewelry, and will not even look at similar stuff on the 'net because I don’t want to be influenced.

[Nicest_of_the_Damned]

@Nicest of the Damned

This is a copyright FAQ page from a site that sells crafted greeting cards and crafts materials:
click here for link

Oops, I see now that last link is for a company in England so the same rules may not apply in the US.
One more thing I forgot to mention, it seems that a lot of fabric is sold for personal use only and you are expressly forbidden to make items for resale. Here is a page listing some fabric and trademark related lawsuits:

http://www.tabberone.com/Trademarks/trademarks.html

Apparently, these are all suits that the company fought, and won in many cases, but if your goal is to avoid legal problems in the first place, it is worth reading.