What should I know about selling artist trading cards?
What issues do I need to be aware of when selling artist trading cards? Can I use scraps from old postcards, new greetings cards, or old magazine advertisements, or is this illegal?
Firstly, of course, we are not lawyers, so you can't depend absolutely on what we tell you. However, we are in a position to give you practical advice that a lawyer may not be able to.
The law on copyright, and what is, and what isn't, in the public domain, is a little complicated, and varies from country to country, but most countries have now adopted the Berne Convention of 1886 (now extended by the World Intellectual Property Organisation (WIPO) Copyright Treaty of 1996), which attempts to harmonise all of the different national laws, so that broadly speaking a copyrighted work enjoys the same protection throughout the civilised world.
When I first wrote this article, the basic situation appeared to be that all works, except photography and cinematography, were in copyright for fifty years after the death of the 'author' (and presumably 'creator' in the general sense). Photographs were in copyright for twenty-five years after the picture was taken.
Since then it would appear that there may have been changes to copyright law in the United States, the European Union and other countries, and in particular to the period for which the various classes of work are protected, and it is important to check the latest situation.
Having said this, it appears that (in the US at least, and with a few exceptions) all works published before 1923 are now in the public domain.
This means that, despite what museums and art galleries may tell you, all of those old paintings are in the public domain. You (and they) cannot claim a copyright on mere reproductions, but if you make a substantial change, or add your own creative input, you may be able to claim your own copyright.
As far as what the situation is as regards selling artist trading cards, we are sure that you know that you can't sell what are described as 'artist trading cards', only give them away or swap them. However, you can sell artist cards editions and originals (ACEOs), and this of course amounts to the same thing.
We believe that the issue here is the use of published copyrighted images (from cards, magazines etc), rather than whether the resultant artwork is offered for sale or not. We would guess that the owner of the copyright would be less likely to pursue the matter, however, if the artwork were not sold, or sold only for charity. On a practical note, if the image were used in such a way as to render it unrecognisable, you would probably be safe, and you may even be able to claim your own copyright in this case.
As far as commercially available images are concerned (rubber stamps, designer papers etc), most companies have an angel policy that you should consult before offering your artwork for sale (it probably doesn't apply to work not offered for sale). Most companies will allow you to sell your work including their images, but may place conditions and restrictions on your doing so.
Typical conditions include the display of a copyright notice in respect of the images that you use, that stamped images may be used only if hand-stamped, and that no 'assembly-line' methods are used. These conditions vary, so you should check each individual company's policy beforehand.
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