Can I use another artist's work in my collage without copyright infringement?
May 11, 2009
Bunny in Wax
Saundra Lane Galloway
I've been enjoying your blog. The information you provide is wonderful! I actually DO have a question about copyright. I have two pieces I did with bunny images that I think came from paintings in a magazine. They are wax collages I did in a workshop I was teaching as examples during class. It has been a while, but if I remember correctly they were from paintings that were in magazines. Since the images are so recognizable, would I be treading on trouble if I were to try to sell them? I usually work exclusively from my own photos as I paint and collage, but these are unusual for me. I won't try to sell them if it is a copyright infringement, just curious...Thank you!
Bunny in Wax 2 Saundra Lane Galloway
Using the original bunny image for personal use or as a demonstration for educational purposes one time and for a limited audience is O.K. - but now you want to sell this "sample" collage as YOUR ARTWORK, hmmmmmm…… this gets into BAD or UGLY area.
TO SUMMARIZE YOUR QUESTION:
How can you tell if the use of another artist's work is copyright infringement - or is it Fair Use?
I'll refer to my Fair Use Guidelines to give you my opinion. #1) Is your artwork transformative? To keep within the boundaries of Fair Use the image or its content must be significantly altered. If you used the bunny image so that it was for bunny texture as background (with other items collage-ed on top) or you wanted only the line or shape so that the original bunny artwork was no longer recognizable, that would be much better. I don’t think the medium (in this case wax collage) is a significant factor in the transformation. It also appears that you simply placed the original bunny image intact on a new background - yes, a different context but not much transformed.
The second test (#2 No confusion) would be if the consumer might be confused. If people who are familiar with the original artist's bunny style might think that your artwork is by the original artist, bad news. Another conflict with the Fair Use Guidelines.
The third test (#3 Commentary and Parody) is very important. To be Fair Use, your bunny image must make a commentary ABOUT the original artwork. It is not Fair Use to copy another artist's image simply for convenience. It appears that you liked the image, copied it, (or ripped it out of a magazine), and placed it in your artwork without any intent to parody the original image. The significant issue here is the lack of COMMENTARY about the original image.
On the last two tests (#4 Non-commercial intent and #5 No sponsorship) you are probably safer. Even though you want to sell your artwork now, you do not intend to compete with the commercial purpose of the original image. And you have not implied any sponsorship or endorsement from the original copyright owner.
Taking all the Fair Use Guidelines into account, it sounds like you did not significantly alter the found image, the bunny image is obviously THE ORIGINAL ARTIST'S work, and there is no commentary about the original bunny image. Consequently, I would not sell the collage, but you could continue to use it as an educational example.
Next time you need an image, it would be better to draw the image yourself or find an image that is copyright-free. Copyright is for the lifetime of the artist plus 75 years so a bunny drawn by Leonardo da Vinci would be copyright-free. There are also books, CDs, and websites with copyright-free images specifically for this purpose.
Perhaps you can use the bunny in wax collage as a prime example of copyright problems using found materials for your students. Each of the guidelines COULD be argued differently, but as a leader in the art community, I'd suggest that you take the high ground and demonstrate by your actions how future artists should treat the work of their fellow artists.
Thanks for your question,
Harriete Estel Berman
This post was updated on December 22, 2021