Copyright law again - same but different?

[Patt Legg]

I have read most posts about National Geographic, etc., but here is my question. I know there have been artists who will copy old master paintings and sell as just that -- a similar copy of Rembrandt's painting, yadda yadda. Making sure they acknowledge the original.

Can I copy an old cover of say a 1935 McCalls magazine cover? They usually have ads of a product too, like Lux soap, certain coffees, etc. Couldn't I copy the magazine yet change the actual name to "Mc Caws" or something like that? I know there are reproduction metal signs out there of old products and collectors love them. What about a painting? Help please.

Thanks in advance.

[Michele Rushworth]

The issue with copies of old master paintings is that these images are so old as to be in the "public domain" (no one owns the copyright any more) and therefore it's okay to copy them.

I don't know which old magazine covers (if any) would be considered to be legally "public domain".

[Chris Saper]

Patt,

Let me start by saying I'm not a lawyer, let alone a lawyer skilled in copyright infringement. Although you might find some really obvious copying and violation examples, there are many more that are less obvious.

Let me recommend an excellent START to learning about copyrights, Tad Crawford's "Legal Guide for Visual Artists". (Get this or other books through the : http://www.portraitartist.com/bookstore/business.htm.)

My belief is that if you do something that is for your own home, and has no possible implication to you for monetary value (yep, maybe even in your portfolio), it's pretty unlikely that you will be sued. Investigate for yourself the implications of clearly copyrighted material. You could find yourself liable for 6 figures in damages. Why in the world would you do this????

There's a whole world out there of original subjects to paint. I just say again, why would you want to find out how close you are to the line of a copyright infringement? We have all heard of anecdotes where the Disney Corporation has filed suit against nursery schools who have Disney murals in their playrooms.

And yes, I am aware that there is an enormous industry of copiers who go on and on selling copies. So?

If you feel compelled to paint copies of someone else's work (and BTW, be aware that, in the example of using an image from National Geographic, you would need releases not only from the magazine but from the photographer as well - there are copyrights, and underlying copyrights), and if the copying would result in your monetary gain, you should talk to a lawyer who either understands copyright law, or who has a good malpractice policy in place.

Happy reading! This is such an interesting subject!

[Patt Legg]

Chris,

Thanks so much and I do know all that you are saying as I have read many times about this law. I do not copy at all in my work but use my own photos instead. Well, once I did a Rembrandt copy for my brother-in-law from his print because he wanted to say he had "almost" an original and I did not charge for it. I do understand all about that.

Most of us could not ever afford a Rembrandt, Vermeer or other wonderful masterpiece. Some people like to hang something other than a print, yet still pay my going price for art even though it is not pricey as an original of mine, but is still significant.

In the above case, I am not wanting National Geographic. I am doing a small show in my community and for instance there is a great deal of interest in nostalgic things, antique, etc. I thought to be doing something different and of interest, I would re-do an old 1932 cover of the old McCall's magizine which I have in my possession.

You know, you see these magazine ads reproduced all the time in old metal signs such as baking soda, Karo syrup, etc. My idea is a large canvas 30 x 40 blow up of this cover. I really thought that as long as I change the McCall's name then it would be permitted.

I love to try by my abilities at being very distinct and exact in duplications. I have also taken a photo myself of a window front in NC and within this window was the 50's nostalgia such as a juke box, the old speaker from a drive-in movie and a large cut out of a standing Marilyn Monroe with the skirt blowing up.

Someone copied that Marilyn icon and keeps selling it. I wanted to do a large canvas on a portion of my photo of that window with Marilyn in it. There are Marliyn enthusists out there.

I know most of you do more portraits than any other and make a living that way. But in my case I reach out in other areas in oils also to earn income. My still lifes sell fine and I will be commissioned at times to do "house portraits" of old home places. Like I said, some things are long gone from our earth and there are people who wish to preserve those in oil.

Please know, Chris, that I am not trying to convince others that I am right on this, simply trying to reply to your question as to "why" would I want to do that. There are the "fool the eye" artists out there who enjoy the challenge of copying and on occasion, so do I.

Well, thanks for your input Chris and I certainly shall think about this. I don't need trouble, for sure.

[Michele Rushworth]

Copyright law stipulates that if a casual observer would feel that the copy was "substantially similar" to the original, then it is a copyright violation. It doesn't have to be an exact copy. There is no legal definition of "substantially similar" and case law examples widely vary in the judgements that have come down. Even if you change the name to McCaws, you could still be liable.

The publishers of the Marilyn cut-outs almost certainly bought specifically delineated rights to use that image from the copyright holder (who is probably Corbis media, a huge image archive here in Seattle).

I'm with Chris. It isn't worth the risk, in my mind.

[Jeff Fuchs]

There is a common misconception that you can copy someone's material, as long as you make minor changes. Nothing can be further from the truth.

I forget the exact wording of the concept, but it's something like "the common man principle", wherein if the average guy can see that it's a copy, then there's a violation. A local bank here had a logo consisting of a number one in a circle. A new bank came along and had number one in a square. They were sued, and had to change the logo.

Copyright infringements are rampant, so don't assume that if you see it done a certain way, it's legal. An exception to the copyright law is the use of an image in parody. Copyright holders have fought it, and lost.

There may be other exceptions for fine artists. Andy Warhol didn't get permission to use the Brillo logo. But don't do it until you know for sure.

In any case, don't drag the owners of this forum into the dispute. If in doubt, don't post.

UPDATE:
I posted this, only to see that Michelle was posting a similar response at the same time.

[Enzie Shahmiri]

Hi Patt,

I have to agree with Michele and others about the risks involved. Surely you have read my National Geographic post. I went so far as to contact the photographer and to this date still have not heard back, whether or not I can use my modified image. I don't want to sell it, but I would have loved to show it as part of my portfolio, if I could obtain permission to do so.

My daughter told me about an incident involving Victoria's Secret suing Victor's Secret. Victor's Secret was a name chosen for a hardware store, but the name association bothered the lingerie manufacturer and they sued forcing the latter to pick another name.

We live in a capitalist country and I feel that if there is a buck to be made through suing someone, whether justified or not, you can count on someone making objections, if they feel they can somehow gain something by doing so. Here even negative publicity is worth gold! That does not mean that those who blatantly copy should not be prosecuted, but sometimes the claim to ownership, in my opinion goes too far, and is too blurry
to be properly interpreted by those with good intentions.

Good luck on your project. Let us know how you have chosen to solve it.