The artwork La Gerbe by Matisse was created in 1953. It consists of about 30 fern-like shapes on a white background. I am making a logo for a non-commercial academic website and it was suggested to me to use one of those shapes, albeit recoloured to match the website's theme. (There are intellectual reasons, and a kind of mathematical and visual pun why this particular image was suggested...)

I am aware that the EU copyright in this work expires in about five years, as Matisse died in 1954, and US copyright would extend five years beyond that.

I'm hesitant because while some fair use principles seem to apply (no effect on the Matisse estate's earning power; only ~3% of the artwork, and not representative of the whole; non-profit usage in an academic setting; original is a painting but new work is a logo for a wiki website), I don't quite feel 100% comfortable. On GraphicDesign.SE, where I first asked this, one user commented this was a clear case where it would be a copyright violation.

Any advice or resources that would help make a more solid case either way? (I respect the above-mentioned GD.SE user's experience and advice, but it is the say-so of one person on the internet) I've had a quick look around, but I cannot find any discussion about similar situations.

  • Oh, and the webserver where this will be hosted is located in the USA, which is why I include both PD dates, in case one or the other, or both, are relevant. – David Roberts Mar 20 '19 at 4:48
  • For the down-voter: I would have thought that this was an interesting example of a more general principle that I haven't been able to find discussed. I find many resources aimed at reproduction of whole paintings, or adaptations thereof (like re-painting a painting oneself), but nothing about extracting small elements from artworks to reuse in other art/designs. – David Roberts Mar 20 '19 at 7:03
  • The original painting may be out of copyright, so you would be able to copy that - if you had access to it. The photo of the painting on the website, however, is copyright the photographer, and if you work from that photograph you will be creating a derivative image from that, not from the original painting. It shoulnd't be too difficult for a graphic designer to create a logo that 'looks like that' but without infringing copyright. – Owain Mar 20 '19 at 18:19
  • @Owain thanks. I've gone for an even more transformative version, to avoid the appearance of simply digitally tracing a shape from the original. – David Roberts Mar 20 '19 at 21:05
  • @Owain UNDER Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photographer will have no copyright as the photo is not an original work. However in the US, the work will be in copyright for 95 years after publication, so at least until 2047. – David Siegel Mar 22 '19 at 6:27

The problem is that decisions on what constitute fair use are highly fact-driven judgement calls. Such decisions cannot be automated, at least not in the present state of AI, nor can a checklist approach give a reliable answer. It is hard to see how any "resource" could be helpful, beyond a list of example cases to compare the facts of a new case against.

From the description, there is a plausible case for fair use under US law, but the only way to be sure would be a court decision, sure to be a lot of trouble at best.

Of course, one could always ask the estate for permission. Given the factors cited it might be granted.

By the way, in the US, the painting will be in copyright for 95 years after publication, so at least until 2047. the life+70 term does not apply to works created before 1977. See this chart

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