241 Things

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Studium Generale 1000things lectures, The Hague

241 Things

Céline Manz wrote her thesis on the friction between art and law when it comes to copying and appropriating - a rather relevant expression for art to emerge and develop. Being at risk for being sued when using certain images or trademarks (think about the case of Louis Vuitton against Nadia Plesner who "used" imagery of Louis Vuitton) Manz offers two options: either to stop using appropriated images or to continue using them - supported by “The Appropriator's User Guide”. If you prefer the second option, please continue reading.

General

What is the use of your appropriated material?

I appropriated material for

  • Private use only => No authorization required
  • Study or teaching purposes => No authorization, but credits required
  • News reporting, to illustrate a review, a critic, to underline historical, biographical or scientific facts => If the material is unmodified, authorization is mostly not required, but the credits
  • Other kind of use => I go on with this list

Do you have basic informations on the work you have appropriated?

  • I know the author of the work
  • I know the year the work has been made
  • I know the nationality of the author

Has the right of the author or copyright owner expired?

List with the different countries copyright lengths [link]

Are you using unprotected material?

  • My source is Public Domain, so I can use it as I like
  • My source has a Creative Commons remix-license. The author has to be credited, but I can use CC-BY and CC-BY-SA for commercial purposes and CC-BY-NC or CC-BY-NC-SA for non-commercial purposes2

Did you check the copyright legislation of the work you used?

Search facility for national laws and treaties on intellectual property to find out the country's copyright law of the appropriated work [link]

Nature of appropriated content

Does my work contain potentially protected material by copyright?

Copyright is an automatic right which emerges with the creation of an original artistic work. The protection includes every original representation of authorship, despite its artistic merit, quality or value. An original creation of human mind is not limited to works of art, but can also be a technical guide, a manual, an engineering drawing etc.

Yes = permission required
My work contains for instance:

  • Artistic works: paintings, photographs, sculptures, installations etc
  • Literary works: Books, newspapers, magazines, catalogues etc
  • Advertisements: Commercial prints, billboards, labels, logos etc
  • Dramatic works: Dance, play, mime etc
  • Audio and audiovisual performances etc
  • Technical drawings: Maps, charts, globes, diagrams etc
  • Motion pictures: Film, documentary, TV advertisement etc
  • Works of applied art: Wallpapers, carpets, jewelry, fabrics, toys etc
  • Digital content: Computer programs, animations, digital files etc

Yes = no permission required
My work is based on or uses:

  • a general idea, method, style, procedure or concept
  • historical, biographical or scientific facts or daily news
  • law texts and/or the outcome of official government works
  • quotes from protected works.No permission, provide the source of the quotation and mention the author

Yes = permission maybe required, if they're trademarked
My work uses:

  • Names, titles, single words, headlines or other kind of short phrases

Note: A logo, single words or whole sentences can be trademarked!

Use of appropriated content

What do you need the appropriated material for?

Yes= permission required
I reproduce it for not private use. For instance under one of these forms:

  • photograph
  • print
  • photocopy
  • digital scan
  • digital copy

I provide public access or distribution, for instance:

  • in an exhibition
  • in a publication
  • in an advertisement
  • on a website
  • as digital content in emails
  • as a postcard
  • as a flyer
  • as a performance
  • in a public screening

I use the work as a base for translation, adaption, modification or alternation

I will make financial benefit from it

Credits1

When do I need to credit the author and/or copyright owner?

I will display a work which is copyright protected in public, for instance:

  • in an exhibition
  • in an advertisement
  • on a website
  • |as digital content in emails
  • as a postcard
  • on a flyer
  • in a publication
  • as a performance
  • in a public screening

Where can I find out who is the owner of the copyright?

  • Copyright notice on the bottom, on the back, or along the image
  • If the image or text has been published under a brand, it is most likely that the brand is the holder of the copyright
  • If the author is not the owner of the copyright, permission of both can be required. In some cases, for instance, when using material from the website of a museum, both artist and museum need to give their permission.

Disclaimer

If a written permission can't be obtained, there is the possibility to add a disclaimer to the image. Important: This will not allow you to use the content – you could still be sued for infringement. But in case a third person makes unauthorized use of your work the disclaimer can limit your legal liability.

“This work/image/photograph cannot be modified for commercial or advertising use, nor can it be copied or reproduced in any form without the artist’s permission. Non-commercial use only.”3

The content of this checklist refers to content of the World Intellectual Property Organization WIPO (website) and the supplements given from Annelies Lesuis, lawyer at Crowd Creation Company and Copyright 2.0.

1Creative Commons

2Moral right of Authorship right: “The author's name appears in relation to the work whenever the circumstances allow you to” etc. OR alternatively ask the author for his permission to not credit him.

3Verbauwhede, Lien: Legal Pitfalls in Taking or Using Photographs of Copyright Material, p. 10

Celine Manz her thesis "What do you know about art, you're not a lawyer" [Read]

Zwart licht, 1984

Zwart licht, 1984

Art Unlimited made a postcard out of “Nightlight” that sold well. Philips had objected greatly and made many attempts to take the postcard off the market. The following correspondence between lawyers covers the, lawful or not, use of cliché.

Mr. M.J.M. van Kaam, Letter to Mr. PR.M. van de Kroft

Philips International B.V. Corporate Patterns and Trademarks Eindhoven
14.10.1987us
Subject: Philips shield emblem

Dear Mr. van der Kroft,
(...) Regarding the Philips shield emblem, Philips possesses two trademarks registered within the Benelux. (...) The said trademarks both include, among others, class 16 to where the postcards in question belong. On the basis arising from the rights of the above mentioned trademark, which derive from 1938, and on account of the Philips brand’s great worldwide reputation and renown, we are of the opinion that Philips can, within right and reason, oppose your client’s use of the Philips shield emblem.
In this case, we have established that your client, without the permission of Philips, is selling postcards depicting the Philips shield emblem and is thus profiting from the appeal of this brand. Therefore, your client is making use of the Philips shield emblem for promotion of his own merchandise in addition to the sale of this merchandise (...). Furthermore, we must reject your view that, besides for scientific and informative use, artistic use is an additional legitimate use…
On the grounds of the above, we believe that your client must cease the offending use of the Philips shield emblem. Moreover, we trust that you will understand our position. A firm such as Philips should at all times prevent its brands from possible damage to their primary function as distinguishing feature.

Mr. PR.M, van der Kroft, Letter to Mr. M.J.M. van Kaam, 23.10.1987

(...) Of course, my client understands that Philips, in principle, takes action against each use they deem infringement of trademark. The question that divides us is whether this is, concerning this case, justified (...)
I am aware that Philips produces and distributes a multiple of goods within the Benelux. However, I am unaware of Philips manufacturing and distributing printed matter, in particular, postcards. For this reason, I must rely on non-usus in the merchandise concerned. In my opinion, my client is not using the brand to promote her business nor the sales of her own merchandise. (...)
In regards to neutral and non-offensive use of the Philips emblem, I would like to compare the postcard with the use of the image or word Philips within a literary publication, against which action would neither be taken, so long as this occurs in a non-offensive manner.
How interesting this question may be theoretically – and I remain curious of your opinion concerning aforementioned, I consider it wiser to choose a practical solution. From my client, I have understood the edition to be very limited. I will request from her a proposal, which I hope to promptly present to you.

Mr.P.R.M. van de Kroft, letter to Art Unlimited, 23.10.1987

(...) I hope to somewhat stretch the discussion, until your edition has been sold out. Could you give me an indication of how long this might last? After this, we’ll dutifully promise Mr. van Kaam that we won’t print any new editions, on the premise that the artist will be allowed to exhibit the work freely and include it in exhibition catalogues.