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Roger
Roger, Lawyer
Category: Intellectual Property Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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Customer Question

If I buy a piece of art from salvation army or goodwill and use that art for background elements in a clothing company does the artist still retain right to that art even if it was donated?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Roger replied 1 year ago.

Kirk Adams :

Hi - my name is XXXXX XXXXX I'm an Intellectual Property litigation attorney. Thanks for your question.

Customer :

hello

Customer :

are you there?

Kirk Adams :

This would be known as a derivative work, which under 17 U.S.C. § 101 is defined as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship."

Kirk Adams :

This all means that the creator of the painting holds the copyright to the painting and, unless they've expressly given permission for its use, making a anything based on the painting would infringe the artist's copyright. In terms of US copyright law, only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. You may be able to obtain permission to use a painting for a derivative work, but you must get permission.

Customer :

Ok. I dont understand alot of that. ha. if I take the abandoned painting and repurpose them into modern textiles-clothing, upholstery ect.. can the artist come after me?

Kirk Adams :

YES.

Kirk Adams :

The painting being donated doesn't mean that the artist doesn't have a copyright still.

Customer :

how much would I have to change the art to make it ok?

Customer :

is copyright automatic or do they have to file?

Kirk Adams :

Also, the fact that you purchased the art doesn't mean that you own all copyright to the painting. Instead, in order to have complete ownership of the item - - including the intellectual/copyright rights, you would have to purchase them separately from the aritst.

Kirk Adams :

You would have to change the reproduction enough to leave no connection between the two.

Kirk Adams :

If one resembles the other, then the artist could claim copyright infringement.

Customer :

is copyright automatic or do they have to file?

Kirk Adams :

Also, a copyright is automatic and is created the instant that the work is created. There is no requirement to file a copyright.

Customer :

ok

Kirk Adams :

If there is no filed copyright, common law copyrights are available.

Kirk Adams :

The easiest thing would be to ask the artist for a license to use the image.

Kirk Adams :

Usually, this is not cost prohibitive and is something that will allow you to avoid being sued.

Customer :

the problem is that alot of them that I get fron salvation art have no signature or anything to identify the artist

Customer :

the problem is that alot of them that I get fron salvation army or goodwill or garage sale art have no signature or anything to identify the artist

Kirk Adams :

Ok. I certainly can see that is a difficult issue.

Kirk Adams :

However, you don't have the right to reproduce the image as the owner because you don't own the copyright rights to it.

Kirk Adams :

But, it would be equally difficult for someone to claim that it is his/her painting if it is not signed or otherwise identified.

Kirk Adams :

Thus, the likelihood of being sued is very slim because there's no way to identify who painted the picture. But, legally, whoever the artist is would hold the copyright to the painting - - but the artist would have to prove he/she is the one that painted the image, which would be hard to do.

Customer :

stepped out?

Customer :

didnt like stepped out

Kirk Adams :

I'm not sure why you rated this as being poor service. I answerd your question, and provided you with the law. As I said, you can't use the image without the artist's permission - botXXXXX XXXXXne. If there is no artist listed, then you may be stuck because if the artist revealed himself/herself to you at a later date, you would have legal exposure.

Kirk Adams :

Is there something that I missed?

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