Q: When reusing books or materials into other things (the Makerspace movement for example) where they turn books into art, if the cover/title/artwork is used as part of the art, what are the copyright implications?

A:  This is more of a complicated question than you might believe. Section 109 of the Copyright Act allows the owner of a particular lawfully made copy (meaning it is not pirated) to sell or dispose of the possession of that copy. 17 U.S.C. § 109(a). This is what is known as the “First Sale Doctrine.” What this means is someone who owns a legal copy of a work (such as a book) may give that copy away, or sell it, or even cut it apart and hang the beautiful photos on the wall without infringing the distribution rights of the copyright owner. Without this provision in the law, the copyright owner would be able to control in perpetuity what happens with every single copy of the work sold. Can you imagine having to contact a publishing company to get permission to give a copy of a book to your niece for her birthday, or to loan the latest best seller to your neighbor? That’s the importance of this section of the law, and it could control some forms of “books into art.”

You didn’t state in your question what, exactly, is going to happen to the books turned into art. So I’m going to give two scenarios and explain the differences between them. One revolves around the First Sale Doctrine and the other relies upon fair use.

If the Makerspace person takes a book and does sculpture with it, for example, or paints the edges of the pages with scenery, the use is based on the First Sale Doctrine. The artist is using a legitimately purchased copy of a copyrighted work and is disposing of or selling the copy. The artist isn’t making any new copies of the work. But courts are not unanimous on this issue. The Ninth Circuit found that using images from a purchased book and mounting then on ceramic tiles created a derivative work, something that is reserved for the copyright holder and is not transferred by the first sale. Mirage Eds. Inc.  v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988). Nine years later, the Seventh Circuit reviewed a similar case against the same defendant. This court of appeals found that affixing purchased note cards onto ceramic tiles was not a derivative work, and the resulting work was not transformative in any way because the mounting did not change anything about the artist’s work. Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997). This decision acknowledged that most courts had disagreed with the decision in Mirage Eds., leaving Lee as the controlling opinion. So when your Makerspace artists incorporate works of another in their works, when the works are not altered in any way but used in their entirety, the works are not derivative works that could be controlled by the copyright owner but are rather protected by the First Sale Doctrine.

Enter Fair Use

But what about fair use, you ask! It’s a valid question. In Rosebud Entm’t, LLC v. Prof’l Laminating, LLC, 958 F. Supp. 2d 600 (D. Md. 2013), the court analyzed such a case. In this instance the items used were magazine covers used in samples of plaques made by the defendant. On the four factors the court found 1) the purpose and character of the use was only minimally transformative and the use was commercial (negative); 2) the nature of the copyrighted work was a mixture of factual and creative (positive); 3) the amount used in relation to the whole was the cover only out of approximately 275 pages (positive); 4) effect of the use on the potential market was minimal and did not deprive the copyright owner of a potential derivative use (positive). The court found that the use was fair. The district court ruling was not appealed.

So your Makerspace artists are generally safe from copyright actions from their works repurposing books especially as there are no commercial considerations involved.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools.  Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice.  If legal advice is required, the reader should consult a licensed attorney in his or her own state.  Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.