Creating paintings using copyrighted images

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  • If an artist recreates wine bottle labels on canvas (sort of what Warhol did with the Campbell's Soup label), is it a violation of copyright? The intent is to sell the work.
  • Hi, HFBolte.

    Before I list my thoughts, I have to provide a few broad disclaimers: I don’t know the details of this situation and I am not a lawyer. Also, there may be trademark issues at play. I don’t know much about trademark, so I’m going to confine this reply to copyright and fair use.

    You may already know that fair use is an exception to the rights of copyright holders. It requires the following four factors to be examined. [For a more complete discussion of fair use, please see the Indiana University-Purdue University Copyright Management Center website: Of particular interest is the Fair Use checklist]

    1. Purpose of the use – This is a matter of discussion, and I don’t have the details of this situation. You write that the intention is to sell the work. Using a work for profit weighs against fair use.

    If, however, the artist creates a highly original new work, this could be “transformative use” which is favored by fair use. What, you may ask, is required for something to considered “transformative”? This is subjective territory and it’s hard to say, but creativity is needed.

    2. Nature of the work used – A wine label is a creative work that someone took pains to design. This factor weighs against fair use.

    3. Amount of work used – If the artist uses the whole wine label, this weighs against fair use. The smaller the amount of the label used, the better the chances of fair use.

    4. Effect of the use on the market for the original work – In this case, I don’t believe a painting of wine labels would diminish the market for the actual wine. [But maybe the artist would depict the wine in a negative light. That might bring about new legal considerations.]

    In summary, I don’t feel I know enough to say whether this use is fair. But I can suggest these alternatives:

    1. Seek permission – The artists can seek permission from the wine label copyright holders to use the labels in a new work.

    2. If the artist creates an original new work, this could be a “transformative use” which is favored by fair use. See discussion under point 1 (Nature of use).

    Maybe someone else will write in with more information.

  • Echoing what MFakouri has so aptly pointed out, your use of wine label art in your own work may be permissable under Fair Use depending on the specifics of your case. The fact that your intended use is to sell, rather than to educate or perform research, weighs against you. But the fact that you are creating a new artistic work, presumably for the enrichment of society and culture, may be in your favor. Other considerations, such as the extent of original art work being used in proportion to the new work, could also factor in.

    The right of artists to reuse, remix and sample is hotly debated these days, and knowing when it's okay to use material without permission is apparently an individual matter with lots of gray areas. A particularly insightful discussion of remixing by artists can be found in "Will Fair Use Survive: Free Expression in the Age of Copyright Control" recently published by the Brennan Center for Justice (Available free online at URL: Chapter 2, entitled Quoting Sartre, Using Prokofiev, Painting Molotov" details the diverse experiences and viewpoints of artists. The chapter includes numerous real life cases, one of which resulted in a cease and desist order. The artist held her ground, with support from fellow artists via Rhizome, and was successful in avoiding litigation.

    One last point about Warhol's use of Campbell soup cans. A recent article in the Farmington Daily Times (byline: Leanne Goebel, Date: Mar 27, 2006) points out that trademark, not copyright, would be the predominant legal issue facing Warhol. "Campbell's never considered suing Warhol for trademark infringement. However, in today's climate and market, Campbell's could sue and would probably win a lawsuit."

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