BUSINESS: Upcycling - Creative Thrift or Copyright Wrong?

Debates often rage in handmade circles about the do's and don'ts in upcycling when it comes to the use of source materials. Here, freelance writer, Tatiana Hitchen looks at the relationship between up-cycling and copyright.

Up-cycling does not just result in interesting new works of art, it clearly has laudable environmental credentials. This can be a double-edged sword, however, as the use of existing materials could constitute a breach of copyright. At the same time, copyright law also acknowledges and allows some uses of other people’s work. Could the up-cycler claim that these apply?

Copyright Background

The law of copyright originated from a recognition that creators should have exclusive control over the reproduction of their works. A quintessential example is for an author to limit who may or may not make copies of their writing. More recently, the copying and distribution of electronic versions of music, books and images has given rise to significant legal actions as copyright owners (such as record companies) try to restrict the unauthorised reproduction of their property.

In Britain, the Copyright, Designs and Patents Act 1988 states that copyright is a property right over certain types of work, including literary, musical, dramatic and artistic works, and that the owner of the copyright in a work has exclusive rights over that work. With respect to up-cycling, in which artists use existing materials or works and turn them into a new piece, it is “artistic works” that are at issue. “Artistic work” is defined as:
    (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
    (b) a work of architecture being a building or a model for a building, or
    (c) a work of artistic craftsmanship.

Clearly, many items could fall under this definition, including discarded materials and objects that are salvaged by up-cyclers.

Copying is defined as the “reproduction of the work in any material form” (emphasis added). For artistic works, this can constitute turning a 2D work into a 3D work and vice versa. Additionally, making copies or otherwise distributing the work to the public constitutes a breach of the copyright owner’s rights. Up-cycling, however, poses quite different issues from typical copyright infringement disputes, such as bootleg movies or MP3s, as the up-cycler is not really making a copy of the original work. This does not mean that the up-cycler has free rein. Rather, that up-cycling could constitute the creation of a “derivative work” - which, as the term implies, is a work deriving from some other person’s work. 

Under the Act, derivative works fall under the category of “adaptations”. Section 21 of the Act states that, making adaptations of works is restricted by copyright. However, this section only applies to literary, musical and dramatic works and artistic works are not mentioned at all. By implication, the Act does not explicitly prohibit adapting artistic works.

Does this mean then, that the up-cycler is safe? It depends on how much of the copyright work is taken. Imitating an artistic work may not infringe copyright, but actually copying or using that artistic work is likely to involve the reproduction of the work (or a substantial part), if not also infringe the creator’s exclusive right to show or communicate the work.

Substantial Part - In UK copyright law, people are permitted to use copyright works so long as they use less than a “substantial part” of the copyright work. The use of a copyright work in an upcycling project - such as a collage - is highly likely to constitute a “substantial part”, especially as courts have regarded relatively small portions as “substantial”. Indeed, the portion in question need only be “qualitatively” significant, rather than quantitatively significant. The wholesale use of an artistic work, as protected by the Act, in an up-cycling project is very likely to constitute the taking of a “substantial” part. The up-cyclers who use copyright materials in their pieces are, therefore, likely to be involved in copyright infringement.

Defence?

Fair Dealing: One possible defence is to claim fair dealing, which (under the name “fair use”) is particularly significant in US law, where free speech and freedom of expression are legally recognised principles. In the UK, however, fair dealing is much harder to establish, as it is limited to only a few categories, such as research and private study, or criticism and review. It is unlikely that these categories would apply to up-cyclers.

Salvation?

Expired Copyright: The easiest way to avoid infringement is to up-cycle materials that are out of copyright. For artistic works, copyright “expires at the end of the period of 70 years from the end of the calendar year in which the author dies”. If the author is unknown, it is 70 years after the year in which the work was made, or made publicly available. If the work and author come from a non-European Economic Area country, then that country’s copyright period applies (so long as it does not exceed 70 years).

Seek Permission: Alternatively, up-cyclers should try to contact the copyright owner (that this may be difficult is no defence) and request permission to use the work under license. Even if permission is granted, the creator will retain “moral rights”. This means that the creator may request to be identified as the originator of the work, and that the work is not subject to “derogatory” treatment.

A Final Twist

One interesting aspect of copyright is its recognition of all original expressions. This means that an up-cycler who uses copyright materials and turns them into some new work is indubitably the owner of that “derivative work”. Essentially, then, just as the up-cycler creates art out of existing “artistic works”, they are also generating their own copyright-protected works, wearing “creator” and “infringer” hats at the same time. As eco-consciousness grows, hopefully the up-cycler’s role in creatively recycling materials will continue to be acknowledged as a positive act and is not undermined by rights holders seeking to exercise their powers.

Article first published in Summer 2010 issue of UK Handmade Magazine.