Using others' work in one's own?

Image: Rienke Enghardt, Transformation Birdee
For each column in the rechtReeKs series, the Arts Union chooses an appropriate image created by one of its member artists that has no relation to the issues in the article.

It was a joyous bustle in the office. An achieved success in one corner, a birthday boy in another, a flyer that turned out extra nice and a former colleague who stopped by for lunch at the central kitchen table. And as usual, there was good discussion between business. Eén of the topics: may you use the work of others for your own artwork?

The occasion was the U.S. Supreme Court ruling on copyright infringement by Andy Warhol. It had been agreed with photographer Lynn Goldsmith that Warhol could use her portrait photo of Prince for four hundred dollars once to make a silkscreen of it for the front page of Vanity Fair magazine - with her name included. When the magazine posted another version of the portrait because of Prince's death, Goldsmith learned that Warhol had not kept his end of the bargain. It turned out he had made fifteen more silkscreens in other colors.

Using the work of others is part of the creative process for many artists

It was not the first time Andy Warhol crossed the line of (in this case, American) copyright law. And with him many others. This is not surprising, of course, because for many artists the use of the work of others is part of the creative process or even a very concrete part of their work. Borrowing art, or appropriation art, in which the work of others is purposefully used in one's own work, is even considered an art movement.

But is all this allowed just like that? Was Duchamp allowed to draw a mustache on the Mona Lisa, was Roy Lichtenstein allowed to repaint popular comics, and was Rob Scholte allowed to use images from fine art, advertising and everyday life in his paintings precisely because these are works of fine art?

In most cases, the use of others' work in one's own work constitutes copyright infringement

For the sake of overview, I limit myself here to Dutch law. Thereby I fall back on ONEn of the basic principles: any use of copyrighted work requires permission, unless there is a statutory exception such as parody or quotation. So the answer to this question is simply: no. In most cases, the use of others' work in one's own work constitutes copyright infringement.

Yet this way of working often causes few problems in practice. Not every artist finds it problematic if their work is used by someone else, for the sake of artistic freedom but also because it is not always perceived as infringing by this common practice. Unfortunately, you don't know that in advance. A completed work or project can therefore cause quite a bit of bellyache afterwards. And at worst, a summons to stop the use and pay damages.

Respectful handling of others' work can prevent many problems

If the concerns are too great, proceed carefully. A claim for copyright infringement is easily avoided by asking for prior permission. An alternative is to use royalty-free images from the Internet or work that is out of copyright because its creator died more than seventy years ago. Be careful with work whose creator is unknown. This does not mean that it is not subject to copyright.

If you think this is going too far, know that being respectful of others' work can also prevent many problems. For that, check out the Pictoright Directive Appropriation Art. From the interests of both creators (enforcement of copyright on the one hand and freedom of expression on the other), this tests whether the use "of work within work" is, in Pictoright's opinion, reasonably acceptable.