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COLLAGE & COPYRIGHT INFRINGEMENT

Over the years, I have received many inquiries from collage artists regarding the issue of copyright infingement. Pardon my ignorance, but it is my understanding that a collage is made by breaking or cutting up previously created visual materials, be they artwork, clothing, drapery, advertisements or other materials. Those pieces are then rearranged to create a new artwork.

Many of the inquiries have involved the issue of the collage artist using prior materials in which they did not own the copyright. The question is, "If an artist uses prior artworks, photographs or magazine advertisments as a starting point, cuts them up and then reuses them to create a new work, does the collage artist need permission from the owners of the copyrights in the prior works that were cut up?"

I have been unable to locate any case law on this specific issue, but technically, it sounds like an infringement of the copyrights of every work used without permission. Of course, if the images are not recognizable as being from the prior works, then the owners wouldn't have any proof of infringement.  Also, for practical reasons, if you do single original works that will hang in someone's living room and not be reproduced, no one will probably discover your infringing use.

There are many people who believe that collage as an fine art form should be a fair use exception to copyright infringement due to the protection of art provided by the First Amendment to the U.S. Constitution , but to my knowledge it is infringement. This is because a new work based upon, or incorporating parts of, an earlier work is considered a derivative work, and only the owner of the copyright can create or authorize the creation of a derivative work (see Derivative). I have seen some law review articles on the subject, but little or no case law. The only way to know for sure is to contact an experienced arts attorney, give him/her ALL the facts of your particular situstion and go from there.