Consider this as a strictly academic, philosophical discussion, as I have no intentions of taking any action to reproduce my own or others' creative images. Don't bother to read if you get extremely emotionally invested in rhetorical questions and debate. I'm mom to a couple of future lawyers, and this post will prove it
This is how we talk at the dinner table. We can disagree and do it civilly -- I'm sure that can happen here too.
The scenario: I've posted photographs of several quilts and pieced/appliqued projects I've made over the years on more than one photo sharing site online. Recently, I received an email from a company that makes and markets screen printed items (tshirts, totes, wallhangings, etc) saying that they love my art pieces and would like to enter into an arrangement whereby they use my designs for their products. I would receive somewhere between 5-10% of sales after an initial ceiling was met, blah blah blah. (I have no interest in doing this, so ignored the small print terms. Personally I see these ventures as the new spin on vanity presses of yesteryear).
Now here is the germ of my question for your mulling pleasure. Let's focus on one of my images for clarity. The design involved an applique of a squirrel silhouette on a randomly pieced background. While the idea and the construction of the piece were entirely out of my own random brain, the squirrel silhouette was based very closely on a card sold by Ikea a few years ago. I had enlarged it and simplified it, but in terms of proportions and actual shape, it was definitely cribbed from that source. Furthermore, many of the fabrics in my design were recognizably by well known fabric designers/manufacturers. At a quick glance, you could see some cotton & steel, some Lizzy House pearl necklace, some Tula Pink fabrics, and some Kate Spain. Looking more closely, you'd see Kaffe Fasset prints and random prints from Moda's mixed up line, and batiks.
Now -- what if I went forward with this business venture? Would the mass-produced items be guilty of copyright infringement? If so, who would be liable-- me, as the creator of the design, or the company that printed and sold them? Or both?
If you don't think it's copyright infringement, do you think it's still improper use of intellectual property? What if the company just used my images without my permission(which I assume they could do-- though the image quality is probably not up to snuff given that I took most of the photographs with my phone)? Would I still have any culpability if you answered yes? If you answer no, what makes it ok to mass produce? -- does the mixture of elements creating something new (even though source fabrics and squirrel shape are clearly recognizable from other sources), the percentage of the pattern being reproduced (say you only have half a repeat of a very distinctive Tula Pink print), the clearly different medium of the reproduction (canvas or garment)?
Is the answer different when talking about a very recognizable and distinctive print vs. a random, more generic print or batik? Does fabric designed by a person with a recognizable name (Tula Pink's Birds and Bees line) have different rules than a fabric line marketed by Moda, but without a big name designer, like Mixed up? What about a fabric that is definitely associated with a specific designer or manufacturer, but which is essentially a blender-- pearl necklace?
What if I or the company used a bunch of filters on the image so that the source materials were less recognizable-- would it then be ok?
What if the company approached each of the fabric designers and asked for permission? Would it then be ok? Ethically speaking, do the fabric designers have rights to some of the profits, or have they made their money in the sale of that fabric to me? If you were a fabric designer and saw a mass-produced tote where some of your design was recognizable in the art work, would you be flattered? Angry at the infringement? Does the answer depend on various factors, and if so, what would those factors be? What if you were the un-named Ikea card artist -- would you recognize your work, and want credit?
I have opinions on many of the questions posed above, but my position could be swayed. And to be honest, sometimes I think that legal and ethical are not exactly the same, so I'm interested in both your read on legalities (not only in the US) but also the ethics of decent treatment of creative people, be they the fabric designers or the quilting hobbiest who posts pics online.