happymomma
Pearl Clutcher
Posts: 4,078 
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Post by happymomma on Jul 24, 2016 18:50:25 GMT
I know someone that makes really cool collage canvases. Mixed media type of things. Someone asked her to do one for their kitchen, using a photo of a Kitchenaid (I think) mixer from the 70's. Friend's friends saw it and some have contacted artist asking to have her make pieces with a variety of vintage items. In hindsight, she's not sure if it's legal for her to sell these pieces, since they would have brand name things in them, mostly in the form of photos, but one gal wanted an actual tiny action figure stuck on the canvas as a gift for her husband.
She has made a few for her close friends, but hasn't sold them, just given them away. Since the response has been really good and word is spreading and she enjoys doing this, she's thinking about possibly selling some at craft fairs and whatnot.
Is it legal to sell these with the photos of items? What about physical items or text of the brand name.
Opinions are mixed. I told her to call and ask a lawyer and she will, but as usual, I thought someone here might know for sure, legally.
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Post by justkat on Jul 24, 2016 19:22:43 GMT
I don't know the correct legal answer. I'm neither an attorney nor do I play one online.  But I've seen items, as you've described, for sale at various art fairs along the East Coast (several states). I would assume (I know I know) that they're legal as I've seen so many people in various places selling similar items. You gave her good advice to contact an attorney. He can give her a definitive answer. I'm curious to know now myself. |
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Deleted
Posts: 0
May 14, 2024 1:04:54 GMT
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Post by Deleted on Jul 24, 2016 19:45:08 GMT
The items in the photo are fine. The bigger question is actually, is she the photographer? She needs permission from the photographer to use any work she did not product.
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Post by rebelyelle on Jul 24, 2016 19:51:02 GMT
If the photos are significantly altered, it could be fine under fair use - but I will be honest, there are some copyright questions here, both with the photos and the items in the photos. It's best to ask a copyright attorney.
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happymomma
Pearl Clutcher
Posts: 4,078
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Post by happymomma on Jul 24, 2016 19:54:57 GMT
The items in the photo are fine. The bigger question is actually, is she the photographer? She needs permission from the photographer to use any work she did not product. For the mixer, yes. How it happened was that she and her friend saw one at a yard sale. She didn't really want to buy it because no room for it but it brought back memories of her deceased grandma. They asked the owner if they could just take a picture of it and had a down-memory-lane convo with the owner. Owner said sure, take a picture. Then her her friend got the idea of having her make a collage for her. One friend wants one made with an old magazine ad of a camper she camped in as a child. It's unclear to me if she had the actual ad or found it on Pinterest or whatever. |
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Post by mymindseyedpea on Jul 24, 2016 20:36:33 GMT
I don't know whether it's legal or not but my personal guess would be that it's fine. The line that I think would be drawn is taking photos of anything broadcasted/motion pictured.
But I don't think taking photos of still life brand named items is crossing over the copyright boundary.
I could be wrong though.
Where I'm coming from is: you can't use collage art to make a cake.
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Post by papercrafteradvocate on Jul 24, 2016 20:39:01 GMT
Fair use does not apply in this situation (it would not be considered fair use)
If your friend us the photographs and uses her own photos in the art work, she's likely to be fine, unless she is photographing other works of art.
Taking a picture of a mixer and using it in her own art is okay unless those items have explicit copyrights that prohibit such.
Using elements of others copyrighted materials--pictures, photos, pages from a book can be used in whole or part --with permission. This is often called appropriation or derivative works. If you are sued by an artist for using their works into say a collage, , judge will look for intent and make a decision based on the type of work, if it's readily recognizable, and other considerations.
It is a misnomer that you can change something by 20% and it's yours or that fair use applies.
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Deleted
Posts: 0
May 14, 2024 1:04:54 GMT
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Post by Deleted on Jul 24, 2016 21:37:45 GMT
The items in the photo are fine. The bigger question is actually, is she the photographer? She needs permission from the photographer to use any work she did not product. For the mixer, yes. How it happened was that she and her friend saw one at a yard sale. She didn't really want to buy it because no room for it but it brought back memories of her deceased grandma. They asked the owner if they could just take a picture of it and had a down-memory-lane convo with the owner. Owner said sure, take a picture. Then her her friend got the idea of having her make a collage for her. One friend wants one made with an old magazine ad of a camper she camped in as a child. It's unclear to me if she had the actual ad or found it on Pinterest or whatever. It gets stickier when she is using sources such as ads and pinterest. In those cases a fee to a lawyer would be well worth her investment. Save |
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Post by hop2 on Jul 24, 2016 21:44:58 GMT
The items in the photo are fine. The bigger question is actually, is she the photographer? She needs permission from the photographer to use any work she did not product. Yes this is the key. Who's pictures is she using. |
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happymomma
Pearl Clutcher
Posts: 4,078
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Post by happymomma on Jul 24, 2016 21:54:33 GMT
I have a feeling that when she finds out how complicated it is (getting permissions, etc. which would also be costly I'm sure) she will choose not to sell her stuff. I hope she doesn't stop making things for friends, and hopefully they could just reimburse her for materials, or just give to some friends as gifts.
I understand the principle behind her not being able to make money off of someone else's invention or brand like a camper, etc.
am I right in assuming that she could still create these but not profit from them? Because they're so dang cute!
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Post by berty on Jul 25, 2016 0:47:34 GMT
I don't know anything about the laws, but I'm just wondering if she could use the images if she drew them? I know there's laws concerning using ads or photos others took, but if she drew an item it would be her own creation.
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cakediva
Drama Llama
Making the world a sweeter place one cake at a time!
Posts: 7,432
Location: Fergus, Ontario
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Post by cakediva on Jul 25, 2016 1:28:52 GMT
I'll throw my "cake related opinion" into the mix.
Anything that is copyrighted cannot be used by somebody else to make money without permission.
Say I make a Kermit the Frog cake. And sell it to a customer. I have now made money off the Kermit franchise. Kermit's owners can come after me for that. Same with any Disney figure, sports logo, fashion purse, all of that stuff.
Disney has been known to go after people who make money of their images. So I would think the same thing would apply here.
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Post by anonrefugee on Jul 25, 2016 2:20:45 GMT
I like this power point to explain differences in between copy right and trademark: www.uspto.gov/sites/default/files/about/offices/ous/121205.pdfWith so many mixer and "canned ham" camper graphics out there I'd be surprised they have those shapes trademarked. But a photograph might be different. ETA Its cute they use the word "classic" as a title to describe Coke bottle. |
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johnnysmom
Drama Llama
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Jun 25, 2014 21:16:33 GMT
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Post by johnnysmom on Jul 25, 2016 2:38:44 GMT
I'll throw my "cake related opinion" into the mix. Anything that is copyrighted cannot be used by somebody else to make money without permission. Say I make a Kermit the Frog cake. And sell it to a customer. I have now made money off the Kermit franchise. Kermit's owners can come after me for that. Same with any Disney figure, sports logo, fashion purse, all of that stuff. Disney has been known to go after people who make money of their images. So I would think the same thing would apply here. That's my take on it as well, though I think it's trademark and not copyright, but I could be wrong IMO, while I may never be caught, it isn't worth the risk of a million dollar lawsuit over a few $30 banners. Would I do it for a close friend, probably but beyond that, absolutely not. |
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Post by mymindseyedpea on Jul 25, 2016 2:56:26 GMT
I'll throw my "cake related opinion" into the mix. Anything that is copyrighted cannot be used by somebody else to make money without permission. Say I make a Kermit the Frog cake. And sell it to a customer. I have now made money off the Kermit franchise. Kermit's owners can come after me for that. Same with any Disney figure, sports logo, fashion purse, all of that stuff. Disney has been known to go after people who make money of their images. So I would think the same thing would apply here. I see a difference with a character ( Kermit ) and a mixer ( Kitchen Aid ) though. I would think anything licensed would be prohibited. But you could probably make a Kitchen Aid cake? |
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But I've seen items, as you've described, for sale at various art fairs along the East Coast (several states). I would assume (I know I know) that they're legal as I've seen so many people in various places selling similar items.
