I have been asked several times about copyright and collage, so I thought it best to try and set out my own understanding as an artist, not as a legal expert.
After looking at several websites and copying what they suggest and summing up the findings, these are what I think are the key points.
- General issues that relate to whether or not I can use materials in a blog that is used to support my teaching.
Non-commercial use of visual art works for the purposes of research and private study are permitted, so long as the original author is credited. Researchers wanting to use images from libraries must provide the libraries with a written (now including electronic) declaration confirming they will be using the work for non-commercial research or private study purposes.
Teachers and lecturers will be permitted to use digital copies of copyright material for the purposes of teaching, so long as such use is non-commercial fair dealing; (this is why you wont find any commercial links on this blog) and students are permitted to make notes digitally including copying of digital material supplied to them. Consistent with ethical academic practice, such digital teaching and learning must include credit/acknowledgement of original authors.
You can use digital technology to create new works that sample and/or remix elements of other artists’ works. You can use other's work for the purposes of caricature, parody, pastiche, or quotation, so long as these works are judged by courts to be fair dealing.
- Copyright and Collage
When using collage in relation to the appropriation of elements of other artist's copyright works, it is important to stress that only limited and moderate amounts are allowed to be used without permission. In other words, not whole or substantial parts of others’ works can be used. However fragments can be ‘cut and pasted’ to create a new collaged or assembled work and this may include text, recorded sound, film, video and broadcast material. It is important is to stress that such appropriations are permissible only if the use of the new work is fair.
So what is fair? Typical collages that use many different materials put together to create new visuals and meanings, are seen as transformative works. A work is “transformative” when the copyrighted material is “transformed in the creation of new information, new aesthetics, new insights and understanding.” In contrast, a work is not transformative if it merely uses the copyrighted material in the same way or with the same effect as the original work.
- So how does this work?
The photographer Lynn Goldsmith on realising Warhol had used her photograph for a screen-print of the musician Prince registered the photograph at issue with the Copyright Office as an unpublished work. The following April, the Warhol Foundation sued Goldsmith and her agency for a declaratory judgment of non-infringement or fair use. Goldsmith countersued for copyright infringement. The district court granted summary judgment for the Foundation on its fair use claim, finding in particular that the Prince Series was “transformative” because, while Goldsmith’s photograph portrayed Prince as “not a comfortable person” and a “vulnerable human being,” the Prince Screen-print Series portrayed him as an “iconic, larger-than-life figure.”
The Court began by clarifying its 2013 decision in Cariou v. Prince, which rejected the proposition that a secondary work must comment on the original in order to qualify as fair use. There, the Court had observed that the appropriation artist Richard Prince had incorporated Cariou’s “serene and deliberately composed portraits and landscape photographs” into his own “crude and jarring works . . . [that] incorporate[d] color, feature[d] distorted human and other forms and settings, and measure[d] between ten and nearly a hundred times the size of the photographs.” The Court concluded that these works “used [Cariou’s photographs] as raw material, transformed in the creation of new information, new aesthetics, new insights and understanding,” and were transformative.
This is how the foundation described the transformative nature of Warhol's work. “In all but one of the works, Prince’s torso is removed and his face and a small portion of his neckline are brought to the forefront. The details of Prince’s bone structure that appear crisply in the photograph, which Goldsmith sought to emphasise, are softened in several of the Prince Series works and outlined or shaded in the others. Prince appears as a flat, two-dimensional figure in Warhol’s works, rather than the detailed, three-dimensional being in Goldsmith’s photograph. Moreover, many of Warhol’s Prince Series works contain loud, unnatural colours, in stark contrast with the black-and-white original photograph. And Warhol’s few colourless works appear as rough sketches in which Prince’s expression is almost entirely lost from the original.”
In the logic of the “transformative use” test, any creation of a derivative work which under the law should require a license, instantly becomes a “transformative use” and now “fair use,” which does not require a license, if, as the judge stated, “These alterations result in an aesthetic and character different from the original". "The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince Series work is immediately recognizsable as a ‘Warhol’ rather than as a photograph of Prince – in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognisable as ‘Warhols,’ not as realistic photographs of those persons.”
Goldsmith however won on appeal. Warhol's work was seen as of a commercial nature and not transformative enough to be of fair use. I.e. this is very subjective and it depends how good your lawyers are.
The 2nd Circuit Court of Appeals reversed the 2019 ruling, agreeing with Goldsmith's argument that the Warhol artworks were not a transformative use of her image.
This time the judge stated, “The Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.” They were therefore legally derivative, because both artworks serve the same function as a portrait of the singer. It was an error, the judge further stated, to maintain that the Warhol images were fair use because they transformed a “vulnerable, uncomfortable person” in Goldsmith’s original photograph into “an iconic, larger-than-life figure.” He went on to criticise the original judge, “The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” To be a transformative use, he added, the new work must offer “something more than the imposition of another artist’s style on the primary work.”
Another aspect is whether or not the new work is commercial. “Commercial” does not merely mean that you make money from your work. Generally, works of fine art are not considered commercial even if they sell for hundreds of thousands of dollars. Courts are more likely to consider artwork commercial if it is sold as decoration on merchandise, such as mugs or t-shirts. In that case it looks more like you are using the artwork to sell consumer merchandise, rather than selling the artwork itself. However, the courts are not consistent in this approach. Some courts have held that sales of fine art prints are commercial. Others have found that sales of merchandise by museum gift shops are not commercial.
The nature of the original work is very important, the courts would look at whether the copyrighted material you’ve used in the collage is more factual or newsworthy in nature, rather than highly creative. There is more leeway to use materials like news photographs, for example, than an illustration. News photographs are usually included because of the factual content of the photograph rather than to exploit the artistic authorship protected by the copyright.
A court will look at how much of the original work was used in your collage. For most collages, this factor should weigh in favour of fair use. However, it could be problematic if the main focus of your collage is one copyrighted work, e.g., a central image to which a decorative border has been added, or if the collage uses the entire work rather than just a portion.
While all of these factors should be considered, the courts are clear that whether the new work is transformative is the most important. The more transformative a work is, the less significant the other factors will be. Indeed, works have been held to be fair use even when all three other factors technically weigh against it.
Collages that have one or more of the following characteristics are more likely to qualify as fair use:
Your collage incorporates many different materials from many different sources.
The materials are juxtaposed or arranged in ways that create new visual and conceptual effects, the more different from the effect of the original materials, the better.
Your collage does not feature a copyrighted work as the central focus or dominant image.
Only portions of copyrighted materials are used, rather than the entire image
Your collage is a one-of-a-kind piece of fine art, or published in a limited edition of fine art prints.
This is of course very interesting in relation to Andy Warhol, whose work it was argued created new conceptual effects, i.e. the images were no longer for instance news worthy or about the individual who was being photographed, it was now a statement about the media itself, about society and about what art is and what could be art.
UK courts decide whether a dealing is fair on a case by case basis, which makes it impossible to advise would-be appropriation artists what courts are likely to permit: key factors UK courts take into account include how a ‘fair-minded and honest person’ would deal with the work and the nature and extent of the appropriation. They also take into account any commercial damage the activity may have done to the borrowed work’s market value. It's also important to know that you can't escape liability by simply crediting/acknowledging the source of the original material.
The new UK Regulations do not define the meaning of ‘caricature, parody or pastiche’, we are simply given information that these are reasonable grounds for 'fair' use. UK courts will have to decide on a case by case basis not only whether a use is fair, but also whether that fair use amounts to caricature or parody or pastiche.
If you are making a parody or a caricature, you will need to define your position. The standard dictionary definition of parody is that it imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target; pastiche is a work of art made up of selections from various sources or one that imitates the style of another artist or period; caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.
I'm always deeply conflicted by these issues. Jean-Jacques Rousseau I feel would have understood my mental conflict, he stated: "The first man who, having enclosed a piece of ground, bethought himself of saying 'This is mine', and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody." I believe that ideas are like the earth, they should be freely distributed and a gift. By parcelling up the planet and selling it off for profit we have destroyed the very home we live on and by arguing over who thought of what idea first we forget that ideas are always collective. Warhol didn't invent the photographic silk-screen and Goldsmith's image of Prince is a collaborative venture between herself and Prince, who would have worked for hours on his image, long before Goldsmith came along to photograph him. Should not the makers of the camera be given credit for their part in the whole affair or the producers of the line film that was used to break down Goldsmith's photograph into black and white so that it could be made ready for screen? Everything we do is the result of a collaboration, the idea of the unique individual who produces a patentable idea is a necessary function of capitalism, whereby everything has to have a for sale value, even ideas. But art might not have to always be driven by market forces. Perhaps it can be used to open a different doorway, to illuminate an at present hard to see path that leads away from art markets and art as a form of investment. In this time of social unrest, the continuing human degradation of the earth's resources, mass animal extinctions and climate change, perhaps we should not be laying down laws about possession but instead be thinking about how we offer the world itself some legal protection.
Coda
May 2023: The US Supreme Court has ruled in favour of photographer Lynn Goldsmith who as we have seen accused Andy Warhol of infringing on her copyright. Warhol’s silkscreens of the late singer Prince, based on a photo by Lynn Goldsmith, do not qualify as “fair use,” the majority opinion determined. This is the result after a long appeal process, whereby the Warhol Foundation contested the earlier decision as outlined above in the main text.
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