Not sure if this should go here or CS, but I’m looking for factual answers so I’ll try here.
Back in art school, I remember a brief section in a photography class regarding being careful about infringing on other art within your photos. I remember there being a basic formula for how much of someone else’s work could be included in your own, and it involved the size of the other work within your own, as well as how much it was altered (more being better). I honestly didn’t pay much attention at the time, but I am now working on some projects involving collage and am not sure how it all works. Would love either actual answers or ideas where I can find specific advice!
The project involves creating scenes aimed at an audience of 5-8 year olds. I am puzzling over my desire to do the following:
Use a photo of the surface of the moon (obviously not mine), cut in half and coloured green, as a part of a larger scene (would be the ice cream in a cone, if that helps)
A photo of a small animal (probably a squirrel), again not mine, with its colour changed and as a very small part of a large scene.
Patterns on fabric. This has a few different questions - which, if any of these, would not be infringing on someone else’s work (their work being creating the pattern on the quilt)?
a) A photo of a bed, made with a store-bought, printed quilt, used as-is
b) The same quilt, photographed and then the photo cut into the shape of a shirt and glued onto a drawn character
c) The same quilt, actually cut and sewn into a shirt and photographed on a person
d) multiple pieces of patterned fabric, photographed and then cut and glued into a 2-d patterned quilt
e) dishcloths/aprons/towels photographed and used as-is
f) not fabric exactly, but the same questions for paper products like printed paper napkins, wrapping paper, scrapbooking paper, and stickers
Toys - probably used as-is, as part of a larger scene. I am sure Barbies or My Little Ponies or whatever would be a definite no, but what about a generic baby doll or stuffed animal?
Children’s furniture - used as-is, cut out and used in a room
Do my questions make sense? I have googled my heart out and had no luck, and really don’t have any idea where to find the info, short of paying a lawyer or nagging my agent prior to being ready to talk about some of the details of what I’m working on. If there is some magic copyright FAQ website out there where I could do some preliminary research on my own, that would be awesome.
If you’re not actually making copies – i.e., you cut out the photos from a book or magazine – then it’s not a copyright issue, anyway. So the patterns and toys are OK so long as you’re buying the item and using it (including the Barbies. If you’re making thousands of these and buy two Barbies for each one, Mattel is hardly going to complain, let alone make you stop).
If you do need to reproduce a photo (instead of buying them or cutting them out of a source), then There isn’t any definitive answer and probably won’t be until someone sues you and a judge rules on it (assuming you take it to court). There’s also the question of what you plan to do with the image. If you’re selling it, then it’s a different situation than if you’re doing it for a class you’re teaching (not that selling it necessarily makes any difference, but it makes it more likely the creator might learn about it).
The ideal would be to find an image and contact the copyright holder and ask for permissions.
Thanks for the response. My end result would be replicated and multiple copies offered for sale. Some of the things I would have no idea how to find the original artist (a print on a 30 year old shirt, for example, or an old scrap of wrapping paper). I wish I could remember more details of what I’m talking about, but it was like a formula, like if I used a snippet of printed wrapping paper, say, or a photo from a magazine, it is ok if it constitutes less than x% of the final image and/or less than y% of the original piece is being used, and altering the item (changing its colour, for example, or using say someone else’s photo of an acorn as someone’s freckles or something on your own piece) changes the percentages somewhat…
It sounds a bit like Andy Warhol’s Marilyn Monroe images.
Unfortunately, there are no set percentages or sizes that will definitely keep you safe.
Take a look at this case – Blanch v. Koons – in which Koons’s use of a part of a fashion photograph was ruled fair use because it was “transformative.”
So interesting! Thank you for that link. It touches on a lot of the points I remember from that class… “recontextualizing” being one thing, and the nature of the original vs the new as well.
I’m sure that the “formula” I remember wasn’t a specific legal thing, more a guideline of what’s acceptable.
Once you go down those lines I think the most important legal issue is how much money you and the copyright holder of the other work have to pay attorneys. Issues of fair use are notoriously idiosyncratic and subjective. You can’t really come up with an absolute rule that covers every change one might make to an existing artwork, and any guideline is going to be fought bitterly if one side thinks they have enough to gain or lose because of it.