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Let's say there is a photo of a group of people in the newspaper. This photo is copyrighted by the newspaper publisher. By cutting out a single face from this photo I am modifiying the original work. I think it's not allowed to modify a copyrighted work. So it should be illegal. But because it is so ridiculous I am not sure about it. To keep it simple I am asking for an answer that applies to the U.S.

Heddy
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zomega
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    What are you doing with that face? Are you using it to put on t-shirts so you can sell those t-shirts to others? Those details are important. If you're just cutting it out, no, there is nothing illegal about that. – Stephan Branczyk Nov 09 '22 at 19:43
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    I want to put it on the wall in my room. Nothing special. But why is it not illegal? I modified a copyrighted work. If you make a Google search for "modify copyrighted image" the answer is always the same: You have to ask the owner for permission. – zomega Nov 09 '22 at 19:51
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    No, what you're doing is covered under fair use. https://ogc.harvard.edu/pages/copyright-and-fair-use#:~:text=Fair%20use%20is%20the%20right,law%20is%20designed%20to%20foster. – Stephan Branczyk Nov 09 '22 at 20:03

3 Answers3

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Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated.

You can burn a book and shred a newspaper. Neither of those actions is making a copy.

Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue.

George White
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    Good point. Would that mean I can buy an oil painting, add some stuff and then sell it? – zomega Nov 09 '22 at 20:05
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    @somega that sounds like a good separate question. The fact that you're selling it might be relevant. – Someone Nov 09 '22 at 20:37
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    @somega You can buy an oil painting and add some stuff to it and then sell it. This is fine. You can't necessarily buy a prints of a painting and use that to make more prints or to license it to a stock photograph company, however, unless you buy the copyright to the image and not just one particular print of it. – ohwilleke Nov 10 '22 at 01:03
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    In general yes, you can resell the modified painting because the copyright is exhausted by what is called the "first-sale doctrine", that is, after the owner sells it to you it is basically yours. However, the original artist may have a separate copyright to the subject of the painting. Tattoo artists have successfully sued people who take pictures of their clients or added their clients into video games that have clear depiction of the tattoos. – slebetman Nov 10 '22 at 05:16
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    Maybe it helps if people think about the first part of the word copyright… as long as I'm not copying, copyright does not apply? (Maybe some high-value paintings are cultural heritage and modifying them would be illegal for reasons entirely unrelated to copyright? Such old paintings would probably be out of copyright anyway.) – gerrit Nov 10 '22 at 07:40
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    This is a US-focused answer. There is a real problem in Europe with architects that fight changes to "their" buildings. The owner of the physical copy (the actual building) isn't automatically allowed to modify it. This is why you must demand all rights when asking an architect to design a building for you. A mere license is insufficient. – MSalters Nov 10 '22 at 12:50
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    @slebetman Again, the key word is "copy". A game featuring a tattoo contains copies of that work. A modified painting is still a single physical object. – Dmitry Grigoryev Nov 10 '22 at 13:18
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    @gerrit There are laws protecting things like listed buildings in the UK which would prevent you from damaging or changing them in certain ways even if you are the owner; I don't know if there are any such laws which would apply to paintings or other "creative works" in the sense of copyright, but I haven't heard of any. – kaya3 Nov 10 '22 at 14:35
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    @ohwilleke But copyright can cover more than the right to make a copy, it can also includes the right to make derivative works. Mirage Editions, Inc. v. Albuquerque A.R.T. Company found that the defendant could not buy a book, remove illustrated pages, add stuff to them and sell them, even though the defendant only used physical media and never made any copy of copyrighted material. They infringed copyright not by copying but by making a derivative work. – Nuclear Hoagie Nov 10 '22 at 18:21
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    @MSalters it sounds like you're referring to moral rights which do exist in (very) limited form in the US via the Visual Artists Rights Act. Moral rights are generally unassignable, the artist/architect/etc cannot give them to you, no matter the contract, even if they wanted to. – mbrig Nov 10 '22 at 18:59
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    @NuclearHoagie I'd be the last person to argue that the case law in any area is 100% consistent, and of course, there are fact laden details. But the first sale doctrine analysis cases are legion while Mirage Editions, 856 F.2d 1341 (9th Cir. 1988) is an outlier case. There's a circuit split on the issue with the opposite position taken in Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997) & Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008). Lee also notes that “Scholarly disapproval of Mirage Editions has been widespread.” – ohwilleke Nov 10 '22 at 20:24
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    @ohwilleke: The fact remains that the statute expressly restricts preparing derivative works, additionally and separately from the restrictions on reproduction. Any answer that says copyright is only about reproduction is ignorant of the statute. – Ben Voigt Nov 10 '22 at 22:04
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    @BenVoigt The derivative works act still only applies to new and separate works, not to already made works that have been sold, which are, due to the first-sale doctrine, no longer subject to copyright. https://en.wikipedia.org/wiki/First-sale_doctrine A derivative work is an "imperfect copy" of a copyrighted work. – ohwilleke Nov 10 '22 at 22:16
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    @ohwilleke: That just moves the goalpost to "what is a work?" And it doesn't excuse an answer for ignoring derivative works completely. Also, "no longer subject to copyright" is a mis-paraphrase of the First Sale Doctrine. – Ben Voigt Nov 10 '22 at 22:19
  • @BenVoigt - the answer now mentions derivative works. I note that the topic is irrelevant to the answer. – George White Nov 10 '22 at 23:39
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The problem is that the internet is wrong when it comes to the wording of US copyright law. There is no prohibition against modifying an original work. The law, 17 USC 106, says that

...the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work...

A "derivative work" is defined as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

You might think that cutting out a face from a newspaper is creating a derivative work. But there is a further limit on the copyright owner's right that

the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord

Thus you do not need the permission of the copyright owner to "dispose of" a part of an owned copy of a protected work.

When you make multiple copies of the thing that you build from purchased parts, that is where you would be infringing copyright, in creating a derivative work that is not covered by the first-sale exclusion. If you want to make 100 copies of a piece of art incorporating a newspaper photo, you can buy 100 copies of the newspaper, and dispose of them as you like.

user6726
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    +1 this answer. Caveat Emptor: The copyright owner may, on their discretion, still file a "civil" [sic] lawsuit – even if they have no chance of winning – send nasty C&D letters, and perhaps force you to hire legal representation at your own expense. "Legal" copyright/patent bullying is very commonplace and the big guy has deep pockets and a vested interest in making noise "protecting their assets" as a deterrent. – Mindwin Remember Monica Nov 10 '22 at 12:11
  • It's not clear to me how derivative works and disposal work here. If I buy 100 newspaper photos, I can sell those to whomever I want. If I cut out a portion of a picture, I can sell that as well. But when does it become a derivative work? What if I cut it out in some artistic outline that makes a commentary on the subject? Can I cut out the picture, put it on a coffee mug and sell it? This answer seems to suggest you can dispose of part of the original work however you like and sell the rest, but wouldn't that fall under "abridgement" or "condensation" categories of derivative works? – Nuclear Hoagie Nov 10 '22 at 14:50
  • @NuclearHoagie The general point is that when you own a physical object, you can do anything you want with that object, except make copies of it. You can glue the cut-out picture onto a coffee mug, and sell that, because it's still the physical object that you owned. – Barmar Nov 10 '22 at 15:36
  • This answer does not cover the case when you modify the photo in the newspaper (for example by painting a smiley on it.). (That is what I actually wanted to know.) – zomega Nov 10 '22 at 15:50
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    @Barmar Mirage Editions, Inc. v. Albuquerque A.R.T. Company found otherwise - removing individual pictures from a physical book and presenting them in a novel form was found to have violated the copyright holder's right to create derivative works, with the doctrine of first sale failing as a defense, as it was "limited to transfer of ownership interests in the particular copy of Mirage's book that A.R.T. had purchased and nothing else". Others have ruled differently in similar cases, but it's not so clear cut that you can do anything you want with a physical copy of copyrighted work. – Nuclear Hoagie Nov 10 '22 at 17:03
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    @somega This answer does cover the question as asked. If you wanted to know something different, you should have asked what you actually wanted to know. – HiddenWindshield Nov 10 '22 at 17:24
  • @HiddenWindshield This is true. The face I cutted out is a modification of the original work. I don't want to dispose it of. The reason why I am allowed to modify the original work is not covered in this answer. I prefer George Whites answer. – zomega Nov 10 '22 at 17:33
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    @somega: You may like being told what you want to hear, but it doesn't make for a good answer. George White's answer only addresses part of the law, as clearly shown by this answer which quotes it. – Ben Voigt Nov 10 '22 at 22:02
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The key actions are reproduction and distribution. Reproduction is the act of "copying" and includes modification, or technically, a "derivative work". Distribution is the transfer of possession. Whether anything is received in exchange is irrelevant. It is both actions in tandem that makes a copyright violation. You can make copies of your stuff, but you cannot distribute it. You can resell your lawfully purchased copy (a DVD, a painting)1, but you cannot sell the copy of it that you made.

It's illegal to reproduce and distribute a copyrighted work. You can do whatever you want to your personal copies of stuff, except reproduce and distribute. This includes modification. If you have a legally obtained copy of the newspaper and you want to cut it to bits, that it perfectly legal. If you want to make art out of it and hang it on your wall, still legal. If you attempt distribution, even if just giving it away, it's technically not legal. So if you clip out your nephew's face from the newspaper and send it to him, that might technically be a copyright violation, but it's a single instance and seems very unlikely anyone will care. If your nephew's face in the picture is particularly interesting, so you put it on mousepads to sell on Amazon, well, now you might get a C&D from the publisher, and they'd be in their rights to force you to stop and pay damages.

  1. Large content producers attempted to make even this illegal, but they failed. The repercussions, if you were not allowed to transfer ownership of your legally obtained copy, would have been transformative in the content and media industries. Rental stores and libraries, for a start, would have been in violation. The impetus to create blank media for sale would have diminished, which would have in turn stunted technological advancement. This is more or less the first sale doctrine. It's actually a very interesting part of the copyrights story, and, in my opinion, an example of the excesses that art and media attempt to gain over their consumers.
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    I upvoted this answer because I don't see what's wrong with it. If anyone would like to point out any legal inaccuracies: I am eager to learn. – Philipp Nov 11 '22 at 13:48
  • Up votes are not for removing someone else's DV. "It's illegal to reproduce and distribute a copyrighted work." ... not sure what else needs said, +1. – Mazura Nov 12 '22 at 03:33