As a mixed media artist who works mostly in collage, I am often using images in my artwork and as such, I have to be concerned with copyright if I intend to sell any of my work. In general, I tend to use images of paintings by the Masters, centuries old, and any copyright that might have been on these works (and often there wasn’t one in the first place) has long since expired. The question then becomes, since I don’t live near any of the museums holding these works, how do I obtain pictures of them for my use and are such pictures then copyrighted? Now, I’m no lawyer so anything I state here is based on extensive research that I have done – you may want to do your own research or to check with a lawyer before using any images for your own work. I have, however, found that a good number of artists are woefully uninformed about copyright laws and can get themselves into a whole lot of trouble OR can find themselves being taken advantage of by others. A friend of mine used to create children’s clothing for sale and at one point, used some Disney fabric in her creations. Despite the fact that the fabric company was licensed in creating the Disney fabric, my friend was not licensed to then create anything from it and put it up for sale and she had quite a stressful time of it until her lawyer and Disney’s lawyers could come to a settlement. You don’t want to find yourself in a similar predicament!
You see, when I first started in mixed media work, I didn’t have a high enough quality printer to be able to print out the images that I wanted to use so I purchased sheets of them from others. The array of "copyrights" that came with these image sheets was fascinating. I had someone send me some pages of images containing Leonardo da Vinci paintings. The copyright that was included stated that I could not use any of the images for artwork that I would be selling. In other words, this person was placing their own copyright on the Mona Lisa (among other works). FYI, you can’t do that. You cannot create a new copyright of public domain work simply because you have taken or scanned a picture of it into your computer. The Mona Lisa is still in the public domain, despite this woman’s claims. What she does hold is a copyright on that particular set of images being presented on that page in that arrangement. In other words, I couldn’t copy the whole sheet and then sell it to other people. She put this collection together and as a collection, she can claim a copyright. But, each individual piece is still in the public domain and she cannot change that.
Indeed, if you go to Flickr and find photographs of the Mona Lisa (we’ll just keep using her as an example) that people have taken while at the Louvre, these photographs also cannot be copyrighted as they are derivatives of the original work. A derivative copyright goes hand in hand with the one for the original piece of work itself so if the work is in the public domain, then any photographs of the work cannot be copyrighted either. The exceptions to this are when the derivative has been substantially changed from the original so as to make it a new piece of art in itself and that’s a subjective decision that has to be made in a court. So, if you find a photograph of the Mona Lisa that is just a completely realistic depiction of the painting, there is no copyright and you can use the photo. If you find a photograph of the Mona Lisa that has been manipulated and photoshopped in some way, you may or may not be able to use it in your work. It would be up to a judge to decide how similar or dissimilar it is to the original.
I also saw a site where a woman was presenting copies of vintage postcards she had found in a flea market. She had researched them and found that they were copyright free, public domain images. However, she felt that since she owned the postcards themselves and since she scanned them into the computer, she now had the right to claim a copyright telling others that they could not use these postcards for anything but personal use. Here’s the issue with that. If they truly are public domain, then just because she owns the postcards doesn’t mean she owns the images on the postcards – they remain public domain. If they aren’t really public domain, then she’s breaking the law by sharing them. So, either they’re available to everyone to use or they’re available to no one including her (unless of course, permission was granted to someone from the actual copyright owner).
Much of this is based on the judgement handed down in the 1999 case of Bridgeman Art Library v. Corel Corporation. Corel had released a CD of photographs of paintings by the Masters and the Bridgeman Art Library took them to court claiming a copyright violation. Bridgeman had a library of photographs of paintings by European masters and they claimed that they therefore held a copyright on the photographs. The court held that exact photographic copies of public domain works could not be protected because they lacked originality. No matter how great the skills of the photographer were in capturing a perfect photograph of the Mona Lisa, it was truly Da Vinci’s skills, talents, and originality that were ultimately being showcased, according to the courts. In fact, anyone who attempts to claim a copyright on such photographs is in violation of the law and risks a $2500 fine.
If you’re going to use images that are not of your own creations in your collage work, it’s important to investigate the copyright laws for your area and to assure yourself that the images you are using are indeed copyright free. Laws and copyright details do vary from place to place and if you create your art in one country but sell to another, you can be affected by a whole new set of laws so it’s important to keep that in mind as well. There are some blogs and websites that offer public domain works for your use. Some of my favourites are: http://graphicsfairy.blogspot.com/ and http://cemerony-share.blogspot.com/. You can also find some great photographs at Flickr with a variety of copyright options available. Just be sure that when you use offerings from any such sites that you carefully read over and adhere to their terms.