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Copyright 101 for Artists

Copyright is a murky area of the law but there have been a series of court cases that have shed light on what is and is not acceptable in this field. Below are the answers to a few questions that artists may be curious about, and information about how to extricate yourself from a sticky copyright situation, or to avoid getting into one altogether.

What should I consider if I want to use others’ work as part of my work?

According to copyright law, the creator of a work holds the copyright as soon as she creates it. This applies to all creative works, published and unpublished.[1] A copyright owner may register her copyright to protect herself in the case of a lawsuit.

If an artist wants to capitalize on another artist’s work, she should consult the Fair Use Doctrine to ensure it is legally permissible.

The Fair Use doctrine allows copyrighted work to be used in particular ways by other artists who want to do some creative borrowing. There are four main factors that an artist needs to consider before she decides to follow through with the borrowing. These factors are reviewed in court cases for copyright infringement.[2]

1. Purpose and character of the use:

  • If the new work parodies the copied work or provides social commentary through the work, it is acceptable. Satirical use of the work, however, is not.
  • If the work is educational, depending on how the other factors pan out, it may be acceptable.

2. Nature of the work copied

  • If the copied portion is factual, or an idea, protection is thinner. Neither facts nor ideas are protected. This is less relevant to visual media, but something to consider if you are incorporating text or audio.

3. Amount and substantiality of the portion copied

  • This is fairly evident; the more you copy, and the more correlated to the “heart” of the original expression you copy, the thicker the copyright protection, ad the more likely you are to get sued.

4. Effect on the market:

  • If your work, and the original work, are competing for the same share of the market, use of part or all of the work may be more likely to be viewed as infringing.
  • Do you plan to display the work in a “public forum?” Would your work be considered “derivative?” If the answers to either of these questions is yes, you will need to be extremely careful with what you take, if you take anything at all.[3]

What are the bright-line rules? Are there exceptions?

The “merger doctrine” may come into play if the artist is representing an element or scene that has limited ways of representation.[4] For example, if an artist wanted to draw a sketch of a labrador’s face tilted upward, the artist would likely have limited ways of doing so.  A suit against him for infringement might not be successful.

There is also a “De Minimis” exception, although this is less relevant for visual works than for printed works or music. However, if your work contains audial or textual elements, it is worth examining to make sure that any use falls under this exception.

According to this exception, an artist may take a small segment of another’s work provided that it is within the accepted amount. For musical works, this is very small, and has been revised to a barely a few seconds. Visual and written works are harder to measure so it may be taken on a case-by-case basis. If a lay-observer would not recognize the similarity between work borrowed and work used then it is likely within the De Minimis exception.

Works in the Public Domain can be used without asking permission.[5]  Also, if a work is splashed with a copyright notice such as one from “Creative Commons” it is generally available for public use.

“Orphan works” are works for whom no existing copyright holder/author can be found. These works should be used carefully, as disputes constantly arise between libraries and depositories where they are kept and good faith users, and the legal basis for their use remains murky.

What happens if the “original artist” requests that I stop using his or her work?

If a copyright owner finds that another artist has unfairly used his or her work, he will first get in touch with the alleged offender and send a “Cease and Desist” note, or, if the infringement has occurred online, a “Take Down Notice.”

An artist who receives this notice should then take down the offending work from public display, or the webpage, or wherever it is stored.

What happens if I refuse?

If you do not follow the instructions of the notification, from number of days to remove, to whatever action they want you to do, you, the alleged infringee, may be served with a lawsuit.

Participating in Intellectual Property lawsuits are long and expensive, so it is best to remedy the situation with the original artist before it gets to this point. Contact him or her, or his or her legal representative, explain the situation, and try to come to an agreement, or try to use one of the four Fair Use factors listed above.

If diplomacy does not work, you can consult a lawyer specialized in Intellectual Property Law.

 

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Suggestions for Further Reading

  • U.S. Code Chapter on Copyright: https://www.law.cornell.edu/uscode/text/17
  • World Intellectual Property Organization: http://www.wipo.int
  • US Copyright Office Web Site: http://www.copyright.gov
  • Creative Commons: http://www.creativecommons.org
  • Electronic Frontier Foundation: http://www.eff.org
  • Harvard Berkman Center for the Internet & Society: http://cyber.law.harvard.edu
  • The Copyright Office’s Study on Orphan Works: http://www.copyright.gov/orphan/
  • The Copyright Office’s Frequently Asked Questions: http://www.copyright.gov/help/faq/
  • WIPO’s Initiative on the Public Domain: http://www.wipo.int/copyright/en/activities/public_domain.html

 

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[1] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) – H&R  had promised Time Magazine unpublished excerpts of Gerald Ford’s upcoming biography for an article, which The Nation obtained, unsolicited, and published before Time’s story was released.

[2] http://fairuse.stanford.edu/overview/fair-use/four-factors/

[3] See Anderson v. Stallone, 11 USPQ2D 1161 (C.D. Cal. 1989) – Anderson, a writer of treatment for Rocky IV, sued for copyright, but was denied relief because Stallone, as original creator, owned rights to any derivative works. Rocky IV was declared a derivative work of Rocky I.

[4] See Psihoyos v. Nat Geographic 409 F. Supp.2d 268 (S.D.N.Y. 2005) – photographer Psihoyos claimed copyright over a photographed scene that was limited in representation. 

[5] Copyright terms vary according to when the original work was created.  The current rule, which applies to works created 1978 onwards, runs the author’s lifetime plus 70 years. http://www.copyright.gov/title17/92chap3.html#302

 

Special thanks to Betsy Mead for contributing this article.