You Made a Collage, But That Doesn't Give You Rights In the Underlying Work

The longer I practice law, the more I recognize certain “seasons” in my work; sometimes I’ll have a period where all my clients are filmmakers. Perhaps six months will go by where all my work revolves around trademarks in some way. Maybe I’ll have ten people in a row ask me about indemnity clauses. Lately I’ve been in a season where clients are visual or graphic artists producing collages. And they all want to know the same thing: can they use the work of others in their collages?

As always, however, my response is "it depends." What is the purpose of that use? Are you altering the original work in some vital way? How much of the original work are you using? Do you intend to use that work to generate a profit? The answers to those questions will determine whether fair use applies, allowing you to use another artists' work in your own without seeking permission. But even if you could use another's work without permission (assuming that work isn't already in the public domain), I would almost never counsel you to do that unless you A) made a good faith effort to get permission, and B) using their work was critical. To satisfy me that permission wasn’t necessary, you’d need to meet both of those criteria... and friend, that's a high bar to clear. 

I think I keep getting asked this question because many artists believe that using another's work somehow transforms or comments on the preexisting work in some way. But even if that's true, it doesn't remove or alter the original owner's rights in the work. Under U.S. Copyright Law, collages are considered "collective works" which is defined as:

[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

"An original work of authorship?" you might ask. “Now I have you!” Yes, using someone else's work in your collage can create a whole new creative work that qualifies for copyright protection. But before you jump to conclusions, Copyright Law also has this to say:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

In other words, the copyright you might gain in your collage only covers your contribution to the work… i.e. the selection of preexisting pieces, the coordination or arrangement of those pieces, and of course any original works of authorship that make it into the collage, that's what will gain you a copyright interest. But any underlying preexisting works you use that are not original to you will still retain their original copyright ownership and protection rights. Which puts you back at square one.

The way you want to use a preexisting work may be covered by fair use (please do not make this judgment yourself. Consult an attorney), but absent some extenuating circumstance, I think most lawyers will tell you what I would tell you: it's easier to ask permission than to beg forgiveness.