Re: Magazine covers in Collage / Feist, museums, and thin-copyright

Linda Barrette (lindab[_at_]jal.cc.il.us) writes:
>
> An art student wants to create a collage that will incorporate
> covers from magazines. If the title is obvious--for example
> "Newsweek", "Time" in the collage, is this a violation of copyright?
> Must the student seek permission to use these covers in his collage?

The members of the legal profession may see reason to disagree, but I see two possibilities here, depending on what process is involved in the collagerie.

1. The collage is just that: a cutting and pasting of physical and legally obtained magazine parts and magazine molecules. It seems like this would be covered under the doctrine of "first sale" (section 109 of the Act, I think). You own the molecules; you can do with them as you wish, so long as you don't copy the original expressions scribbled thereupon.
2. The collage involves "copies" of magazines, or alternatively, the assemblage of magazine snippets is itself digitized or photographed as a part of the collagery process.

Here it is more complex because the bits and pieces are each subject to the copyright restrictions on the original magazine. Copying those fragments is possibly a "fair use" as covered by Section 107 of the Act, depending on a variety of factors, and one can hire a lawyer to argue either side of this issue, I'm sure. The likelihoods that a) the student's work is not a commercial endeavor and b) the magazine industry's market for magazine fragments is probably not going to be driven to extinction by the student's act would tend to argue on the student's behalf, so long as the fragments are, indeed, small.

Afterthought: this is sort of the inverse of the Feist / database / museum photos situation, having been discussed so vigorously on this list in the last month. In the above we have copyrighted snippets assembled into a collage, which, for sake of symmetry we might imagine the student would like to place in the public domain. In the other situations, we have non-copyrighted (PD) snippets that someone wishes to assemble into a copyrighted collage. It seems like if one wishes to extend the Copyright Act so as to allow the (acknowledged) compilation copyright of the collage to inherit backwards into the snippets (the thin-copyright premise), then by fairness and symmetry, one should also advocate a "thin anti-copyright premise" in which the public domain property of a collage is inherited backwards into the snippets of which it is comprised.

However the arguments on thin copyrights for databases of facts, databases of laws, and photos of PD art, proceed, it seems like they rightfully share a common destiny (despite having different lobbies and industries supporting them). Modifications of the act ought legitimately to be required, by fairness, to include for each extension of the exclusive rights of the copyright holder, a constitutionally mandated extension of the public domain. At lease one reading of the intent of the law to "advance the Progress of Science and Useful Arts" would argue that the legislature is so bound.

David Dailey (ddailey[_at_]williams.edu) Received on Sat Mar 02 1996 - 13:26:12 GMT