If you undertake collage or montage work and this involves incorporating other people’s artwork, how do you know if you are infringing their copyright? Collage is not an easy area on which to advise, as each situation needs to be judged on its own facts. However, you can ask yourself a few questions, which could provide a safety net. Ruth Gladwin advises.
[hidden title="Is any part of the work in copyright?"]
You should be safe if you are incorporating images which are no longer in copyright into your collage. The life of copyright in an artwork is 70 years. The 70 years starts running from the date of the creator`s death. If the work is definitely out of copyright then you are free to use it. If the work is in copyright then ask yourself another question.
Is the image you plan to use an exact copy of the original? There is no copyright on an idea, only the form it takes. If, therefore, you have redrawn an element and not simply copied the original, you may not have infringed copyright. This is not a simple issue and you must exercise your own skill, judgement and labour in creating your own interpretation. It must be your own creation and a simple variation will not do.
You may, as another scenario, have taken only a small part from a larger piece, which could be quite likely in a montage or collage work. The law says that the copy has to be a whole or substantial part. Be warned, a small but recognisable element from a larger image may be an infringement. If you took a tiny piece from Picasso`s Guernica it would be instantly recognisable and, in my view, would qualify as a substantial copy of the whole. One problem with collage work is that if you want to use quite distinctive and recognisable parts from other images you may be in difficulty.
What if the work you have copied forms part of the background or is a small part of the collage? It does not matter where the work that you are using is placed in the foreground or background, if it is in copyright and you have used a clearly recognisable element of the original work that use will be an infringement of copyright. Also be careful about using recognisable brands or logos.
[hidden title="Incidental Inclusion"]
There is a defence under the 1988 Copyright Designs and Patents Act where an illustrator could argue that the element was ‘an incidental inclusion’. No one was really clear what this meant – did incidental mean a small element of the whole work, or a fleeting background glimpse across, (say), a television screen? The Copyright Act did not explain and it has been a matter of waiting for a test case to decide.
In 2003 the FA Premier League brought a case against an Italian company producing stickers of footballers. The FA argued that the use of the club logos and the Premier League lion emblem that could be seen on their shirts was an infringement of copyright. The Italian company argued that the use of the logos was ‘incidental’. The court supported the FA. It said that the use of the logo was ‘an integral part of the artistic work comprised of the photograph of the professional footballer in his present day kit’. The court decided that including the badges on the kit was not incidental and the FA won the case.
There are two messages for illustrators to take from this. Firstly, that owners of brands and logos will take unauthorised use of their valuable commercial property very seriously. Secondly that the argument of incidental use failed and although the logo on clothing took up a very small proportion of the photograph and is arguably part of the background, it was considered a key element by the courts.
Should you receive a commission – particularly one which stipulates the inclusion of certain images – you should proceed with caution. If you are unsure if an image is in copyright and/or suspect you could be infringing copyright you could ask your client to indemnify you against any claim for infringement of copyright. This is reversing the usual position. Normally the commissioner would ask you, the illustrator, to promise that the work is original. An indemnity, (or guarantee), that you would reimburse the commissioner if they suffered any loss or damage as a result of a third party claim for infringement of copyright, would back up this promise.
Do bear in mind however, that if you do obtain an indemnity it is only as good as the person who gives it, and ensure, (if you can), that it is given by an individual or company that could meet the liability.
In summary, each situation needs to be judged on its own facts and if you are really worried you should get advice.
All this advice has assumed one thing: that is you do not ask the copyright owner for permission. It is open to you to avoid all these issues and ask for a licence. The owner may ask only for a small fee. If you do ask and are turned down I do not advise that you go ahead and use it. This is because if the owner later argues that you have infringed copyright and claims a licence fee, they may also be entitled to extra damages. This is because you ignored the fact that you were refused permission.
In conclusion if you want to create collage work, you can, and all you need is a little forethought to avoid any copyright problems.
Ruth Gladwin is an independent lawyer who advises fine artists, illustrators, photographers and designers. This resource should not be taken as legal advice.