Fascinating World of Copyright Law and Fine Art

9 Feb

Someone at Etsy raised the question about whether the notepad folders, made from expired faerie calendars, that I sell at Faerie Fabulous Finds at Etsy violate copyright law.

I was a Contract Negotiator for the US Government for more than 25 years and I’ve seen my share of some amazingly complex patent and copyright law scenarios, so I understand their concern.

The actual language of the law, as stated in Title 17, Copyright Law of the United States, as it pertains to this situation, with my arguments and explanations follow should you find yourself in this situation.  But first, for those of you who have short attention spans, here are some nutshell and coconut sized summations:

In a Nutshell:

The actual piece of paper and the ink printed upon it is the only part of the calendar that I can own and sell.  I own each calendar page used to make each folder.  I do not own the rights to the image on the calendar page itself; therefore, I cannot make and sell a copy of the image.  The folders are made from original calendar pages with embedded images.  Therefore, I have not violated any copyright laws.

In a Coconut Shell:

I own the calendar pages used to make each folder, but I do not own the copyrights to the embedded images.  Copyright law gives me some limited rights, though.  The law allows me to sell or “otherwise” dispose of my physical, material copy of the calendar just as I would be allowed to sell or otherwise dispose of a copy of a book (which has copyright protected words embedded), a CD (which has copyright protected audio embedded), or a DVD (which has copyright protected video embedded) that I purchased.

What those limited rights do not include is the right to COPY my calendar pages and sell the COPIES, just as copying a book, a CD or a DVD and selling the copy is clearly illegal.  The right to make COPIES is reserved exclusively to the copyright holder.

When I sell my material calendar page, even if in an altered form because it is “otherwise” still the original calendar page, the new owner now owns the material calendar page in folder form (but it is still the physical calendar page) and the limited rights apply to them and their material copy, and the limited rights will also apply to anyone to whom they may transfer the material item, even if it is further altered (such as part of a collage) and so forth ad infinitum until the material copy no longer exists.

In Excruciating Detail:

If you wish to read Title 17 yourself, it is available in its entirety at: http://www.copyright.gov/title17/.

Section 101 Definitions

“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

The calendar pages do contain “fine art” and “fine art” falls under “pictorial, graphic, and sculptural works,” and more specifically “pictorial works.”  The calendar, including individual calendar pages, is a “useful article” as defined here because we can identify the fine art separately from the functional part of the calendar (i.e., date section) and it exists independently from the calendar’s utility (i.e., not required for the calendar to work).

Section 101 Definitions (cont.)

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

The calendar was published and copies of “pictorial works” on each calendar page were distributed to the public by cash sales.

Section 106 Exclusive rights in copyrighted works

Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

The copyright owner lawfully exercised their right to distribute, through publication, copies of their copyrighted work, specifically pictorial works, to the public through the sale of useful articles, i.e., calendars.

Section 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

I am the owner of calendars (in which copyrighted pictorial works are embodied), lawfully made by the copyright holder under Section 106(3) above, who (through various intermediaries) sold them to me.  As the owner of a material calendar copy, I am entitled (without the need of anyone’s permission) to do anything I want with my material copy except “distribute copies…of the copyrighted work to the public by sale” (Section 106(3) above); i.e., I cannot make copies of my copy to sell to the public.

Section 202 Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.  Transfer of ownership of any material object, including the copy or phonorecord  in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

When I buy a calendar, I only own a material object in which a pictorial work is embodied.  I don’t get copyrights to the pictorial work, but the material object (with the pictorial work incorporated) is mine to sell or otherwise dispose of.

Section 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord (cont.)

(c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

I cannot display more than one image of the calendar at my residence and I cannot create a film, video or DVD of my calendar pages for public viewing.  This at first appears to be legal redundancy of “thou shalt not make copies of your copy,” but really is aimed at the film industry and is to prevent someone from buying a DVD at Wal-Mart and charging people to watch movies in a homemade/bootleg movie theatre.

Section 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord (cont.)

(d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.

I purchased my calendars and own them outright through cash sales; I did not rent, lease or acquire them through a loan.  Again, this is really to prevent people from renting DVDs from Blockbuster and making copies.

Section 113 Scope of exclusive rights in pictorial, graphic, and sculptural works

(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

My notepad folders are useful articles just as the original calendar was a useful article, and since the pictorial work was lawfully reproduced in the original calendar and I own the original calendar, it is also lawfully reproduced in my notepad folders (i.e., it is not a copy of a copy).  This section gives me the right to display photographs of my notepad folders on Etsy for advertisement purposes.

Here are some other examples that further illustrate this area of copyright law:

  • If you buy a CD of your favorite band, would you be precluded from selling it to someone else?
  • No.  You bought the CD and own the physical/material item, so you can sell it, smash it into pieces and use it in a collage which you then sell as art, burn it in a funeral pyre, anything you can think of but only to the physical copy itself that you have in your possession.  When you bought the CD, you didn’t get any rights to the contents of the CD, so you can’t make or sell copies of the CD…unless you buy the copyrights from the band or sign a contract to pay the band royalties for every copy you make and sell.

  • If you buy a rubber stamp, can you sell greeting cards with the stamped image on them?
  • Probably not.  You own the physical stamp itself, and you can sell, burn, chop into pieces and turn it into something else if you like.  However, most rubber stamp images are copyrighted (surprised?) and you can’t sell anything stamped with the image it makes…unless you have the written permission of the copyright holder, who may or may not charge you a fee/royalty to get such permission.  The Terms of Use (TOU) for most rubber stamps specify that they are only for personal use.

Isn’t the law fun?

2 Responses to “Fascinating World of Copyright Law and Fine Art”

  1. Marvin February 9, 2010 at 10:35 PM #

    Now I’m tired. 😉

    • Faerie♥Kat February 10, 2010 at 11:27 AM #

      I could have just hit you over the head with a blunt instrument to ensure you a sound night’s rest, but this method doesn’t leave any tell tale bumps. A headache, sure, but no other physical evidence. The law is sneaky that way. You’re welcome.

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