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socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 38802
Experience:  Retired (mostly)
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I am a collage artist. I have created a collage that

Customer Question

I am a collage artist. I have created a collage that incorporates the label from a can of Blue Runner beans. I have reproduced the collage as a notecard, which I sell. One store that sells the cards is worried about trouble with copyright infringement. Is there a problem? I can send you a jpeg of the card if required.
JA: What written documentation do you have?
Customer: Written documentation of what? The store's hesitation to sell the card? This was verbal, not written.
JA: Have you talked to a local attorney? Has anything been filed in court?
Customer: NO. I just want to continue producing and selling my cards. No other store has questioned the copyright issue.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Is there a way to send the image in question so the lawyer will know what I'm talking about?
Submitted: 5 months ago.
Category: Intellectual Property Law
Expert:  socrateaser replied 5 months ago.

Hello,

The general rule is always that the use of another's creative work without a license is copyright infringement, unless the copyright on the work is expired, and the work is now in the public domain.

The defense to infringement is "fair use." 17 U.S.C. Sec. 107. Use of another's work is "fair," in a commercial setting, where it is "transformative," which means that the creative purpose of the new use provides an entirely new meaning to a preexisting work. The case that most closely mirrors your facts is: Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), which is summarized as follows: "Artist’s use of copyrighted photograph from a fashion magazine in his collage painting was fair use; the use of the photograph was transformative, since it was used as part of artist’s commentary on the social and aesthetic consequences of mass media, artist copied a reasonable portion of the photograph to fulfill his purpose of conveying the ‘‘fact’’ of the photograph to viewers, and his use had no deleterious effect upon the potential market for or value of the photograph. 17 U.S.C.A. § 107."

That probably sounds pretty good to you. The problem is that Mr. Koons probably spent $250,000 litigating that decision. Consequently, fair use, while it may seem to be a great option on the surface -- it can frequently lead to a protracted litigation with the copyright owner -- and in the end, even if you win -- you lose.

Anyway, that's how the law shakes out in this circumstance. I can't review the actual collage in this forum. We'd have to take the discussion offline, and I'd be charing you by the hour for my time -- probably not what you're looking for.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 5 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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