Copyright and patterned paper

[Whitney Simms]

@lauraa that’s a good question! I love collage picture books. That’s a great idea. I’ve seen a few of those. I have a million papers like that too in my craft room. I wonder how it works!

[burvantill]

I’m thinking it’s free game if it’s scrapbooking paper. I’d use it.

[kaitlinmakes]

I think the guys discussed this one a little on the podcast about fan art - if you can remove the "copyrighted" material and still have a piece that holds up on its own ~80% - you're in the clear(ish).
Also that paper is intentionally sold to be used this way - so it should be a ok.
But it's a really interesting question, because technically it is someone else's art.

[LollyW]

I remember this being brought up on scrapbooking sites I used to use years ago and there are some brands of scrap book paper that don't allow the use of their paper in pieces that are to be reproduced commercially without credit to them, it got very messy and didn't cover the thing about 'if you remove copyrighted material...' . this thread here goes into it a bit
There are 'angel' brands that are fine about using their designs out there.
I'd say unless you know for sure don't make the paper an integral part of the piece and change it a little.

[davidhohn]

Standard disclaimer that I'm not an IP attorney. For an official answer to this question please consult one.

To Address @LauraA original question:
Yes, technically under copyright law there is a problem with you using photos of ANYTHING in your work if you didn't take those photos yourself (unless you know that the image or pattern is in the public domain). Be it textured paper, pattern papers, or any kind of artwork that gets collaged into your new image.

Just because you've seen something used in illustrations before does not mean that it's legal. You (probably) don't know if the illustrator actually worked out a licensing deal with the original artist (of the origami paper) if the origami paper is in public domain or if the illustrator is just gambling that the origami pattern artist won't ever notice.

BUT as with all things copyright you need to evaluate whether the infringement in "actionable" or not. I am not against collage art, as I imagine you are using it. In fact I'm a big fan! But one person's "unique and creative collage" is another's "Hey man, you ripped me off!"

Quite well known artists like Richard Prince and Andy Warhol used lots of collaged elements in their work -- and got/get sued all the time!

Sometimes those fundamental infringements are allowed under the "Fair Use Defense" So if you are going to use copyrighted pattered papers in your new work you definitely NEED to understand what you are doing. My own understanding is that infringements like you are describing rely on a legal concept called "Transformative Use".

Transformative Use has become one of the multiple factors evaluated in determining whether an infringement qualifies under the "Fair Use Defense"

Additionally it will depend on how much of any one pattern you use, how you use it, and how many other patterns are included. I personally use the test "If I remove this pattern does the concept of my image fall apart?" Restated, does the viewer's understanding of what I'm trying to communicate in this image rely on the creativity of someone else?

But as you can see none of what I've written here is definitive, and honestly you should talk to a lawyer.

@Chip-Valecek I have looked into Pixabay previously for another forum topic. I'm not saying this is a scam or anything, but sites like this always raise red flags for me. If someone is offering for free what pretty much everyone else is charging for -- be cautious. If you use it for a personal project, actionable infringements are unlikely. If you use it for a project from which you make money and if that project could get really big (i.e. a bestseller) I'd check with an attorney first.

@burvantill I would caution you against that philosophy for scrapbooking paper. I think I understand where it comes from. (And feel free to correct me if I'm wrong in your thinking.) After all scrapbooking paper is SUPPOSED to be collaged right? It's supposed to be cut up and combined with other patterned papers and photos and turned into a cool new piece of artwork!
And you would be right -- with one important distinction. It is supposed to be turned into a cool new piece of PHYSICAL artwork. That is, ONE piece of physical artwork. NOT reproduced over and over again in a book, magazine or any mass produced object. If you want to make a second object that's just like that first object, the scrapbook company expects you to buy another piece of paper. That's how they make money.

@kaitlinmakes I feel confident that one of the things SVS (and the podcast guys) want for their subscribers and students is a clarification of murky topics like this. Unfortunately what you've described is confusing. If you have a moment, could you point to the area of the podcast that left you with the remove 80% (?) impression so that they can further clarify what is meant. I am sure that there are more than a few podcast listeners who would benefit as well!

[LauraA]

@davidhohn Wow, thanks for such a thorough answer, David! "Transformative Use" is a good term to know. Plus, I see now that the distinction between physical original artwork and artwork made for reproduction is a very important one.

You know which book really made me think patterned collage was probably okay? Ezra Jack Keats's The Snowy Day. I have loved that book since I was a child and I noticed even then that he was using patterned and textured papers. In fact, pretty much all of his books make use of patterned paper.

Beatrice Alemagna also uses collage in a very interesting way.

Honestly, I don't even think an illustration would be very good if it had to depended too much on someone else's patterning. Anything too prominent would dominate the illustration, but I do understand your point. And come to think of it, I do know a patent attorney (not quite the same thing as copyright, but still intellectual property), so I'll ask!

[davidhohn]

@LauraA I would agree with you on Snowy Day and your last statement on not depending on someone else's patterning for your illustration.

This highlights why it is so important to evaluate each on a case by case basis and why I take a fundamentally conservative approach when discussing the topic. One person reads "you can legally use patterned papers in your art" and approaches it as you clearly are -- while another person reads the same thing and proceeds to get sued, while wondering why.

[kaitlinmakes]

@davidhohn
Hey David! Sometimes I post late at night, so I'm not always that coherent. Also, I'm usually not very coherent period.
But the point in the podcast is about 22 minutes in, and basically covers what you said in your post - if you can remove the copyrighted material does your drawing still stand on its own. It looks like I pulled the 80% out of my butt - but is the work 80% you. They mentioned this in conjunction with Parkers sketch books that he sells, where some of the pieces are fan art, but the majority of his sketches are 100% from his imagination.
That being said, I probably shouldn't have replied to such an important topic since I don't have any background on laws - I would have felt terrible if @LauraA had been brought to court over this off of maybes and ifs and probablies.

[LauraA]

@davidhohn Ok, so I happened to have the chance yesterday to talk casually (not professionally, so this isn't legal advice) to an IP lawyer and showed him a couple of things I had done, including the fall piece I am working on (which has a small repeating pattern on some of the clothing). Again, there were no clear answers but he more or less reiterated the things you were saying:

1. How important is the pattern to the piece?

2. Did you modify it, put shadows over it, etc.?

3. How would you feel if you created this pattern and saw it in the artwork? Would you think, "Hey, that's my work, not theirs!"?

4. Obviously, if the paper has a copyright notice on it, don't use it!

Perhaps the take away from this conversation is that there are guidelines, but not many hard and fast rules. So, if you use patterns, make sure your artwork speaks for itself!

[davidhohn]

@lauraa That is great! Getting info directly from an IP attorney is always worth it!