Copyright Infringement or Fair Use? Assure Your Artwork is Protected

Jan 11th 2017

Copyright Infringement or Fair Use? Assure Your Artwork is Protected

As an artist, you’ve probably heard this line before: “Good Artists Copy, Great Artists Steal.” - Pablo PicassoIn a growing digital space where information, art, music, and graphics are being shared, remixed, mashed up, or repurposed it’s a lot easier to be called out online or IRL for copying work than it was in Picasso’s time. But the insinuation of “stealing work” in Pablo’s quote implies you didn’t get caught for the work you “borrowed” which, surprising enough, can be completely legal. Are you surprised? It’s okay to feel a little uneasy that your work can be used in part or in whole without permission, but it’s important to know how to identify when “borrowing” crosses the line to become out-right theft of your or another’s work. We understand it’s a lot to learn about, and protecting your work isn’t exactly part of most artists' and designers' BFA, but we’re here to break it down for you.

Understanding the Law

In all honesty, without the presence of a judge or lawyer, it’s hard to know for sure though that you are either: • committing copyright infringement, or • someone has violated your own copyrighted worksTo protect your own work, it’s important to understand the basics of Copyright rules and Fair Use. To begin we need to understand the law as it is: The Copyright Act allows for the impounding and destruction or other appropriate disposition of any infringing work. (17 U.S.C. § 503 - Remedies for infringement: Impounding and disposition of infringing articles)

So you may be thinking after reading such a looming quote, that you’ll just stick to creating entirely original pieces. Ideally yes, that is the safest route, but you could be copying someone else’s work unknowingly or to an extend that you don’t feel you’ll get caught—which neither is a completely solid argument in the court of law.If you’re brought to court for violating someone’s copyrighted work, then only that judge can make the call on whether or not you broke the law.

When Does Fair Use Apply?

Under the Fair Use doctrine however, there are ways for you to have copyrighted work inform your own. The Fair Use policy is the “legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances” (copyright.gov). The ideal scenario for using Fair Use, is to use prior work to inform, make commentary, make parody, or to analyze and educate in the form of your own, new work which would continue to elaborate on the nature of its source.



Here’s an example:

Let’s say you’ve been commissioned to make a design for a new line of tote bags. As you begin to brainstorm keep in mind the guidelines below to assure you’re well within the law of Fair Use.1. What will be the purpose of your artwork?Will this be for commercial use or non-profit/educational purposes?
Unless you plan on giving those totes away to your friends and not profiting on them at all, your answer is yes, this is for commercial use because a profit will be made.

While profit may be an important factor, it’s not the only factor a judge will consider if your case is brought to court for possible infringement. Media likes newspapers, Youtube videos, magazines can get away with using copyrighted imagery because they are adding commentary or parody to news.
“Newspapers (hopefully) make a profit but can often make fair use if needed to report the news,” says David Brezina, Patent Attorney at Ladas & Parry.

2. What is the nature of the copyrighted work?Often times, more creative and original works can have a broader blanket of protection than their slightly less unique counterparts.

In our example, the nature of your work will be to a design on a tote bag that will sell with an image you construct. Brezina offers a counter example: Let’s say you want to make reference to copyrighted material in your tote design—do you want to create a type-based design by randomly selecting names in a phone book? What if you’re planning on painting a scene from a Great American Novel to use as a design?
“A phone book may be copyrightable, but taking the names and doing something else with them may well be fair use,” says David Brezina. “But the Great American Novel may have high originality and presentation of whole scenes protectable and only small quotes permitted. If you are talking about graphic images, an original hand painting will be more original than copying a photo of something in nature.”

"If all of your work is based on other artists or company’s intellectual property, then it really isn’t yours, no matter how much you alter it, or mash it up with something else," comments Britton Walters of Nerfect.com.

In short, the more you manipulate, change, break down, or mold the original piece in your own way, the better it looks to a judge that you’ve created an entirely new piece, with a new purpose.

3. How much of the original work did you use and which part?How much of the original work is being used in your work?

Let’s say you’re borrowing a color scheme from your favorite rock album for the tote bag. Colors cannot fall under a violation of copyright usage themselves, nor can simple shapes. However, the sequence and arrangement of these hues can be protected from the source you’re pulling it from, and if you’re pulling more than just the palette from the album cover (the font, imagery, symbols, etc.) that could be a stronger case of copyright infringement and less in your favor as a case of Fair Use.4. Does your work affect the profits of the original?The effect of the use upon the potential market for or value of the copyrighted work.Does the work you created interrupt the money that the original work should be receiving? In our example, you merely borrowed the color scheme from the copyrighted work (rock album) for your tote bag line. If only borrowing the colors in no particular sequence, this connection would be hard to trace and, in addition, the use of your tote bag would not impede on any record sales.

“In the past I have incorporated [other’s] images and ideas into my own work,” adds Britton Walters. “It’s a rare thing for me, and usually it is done out of a place of homage or tribute. I definitely go into these things well aware of what I’m doing and I definitely don’t want to offend or harm folks and work I respect and have been inspired by.”

The truth is that a copyright protects an already-made expression, not an intangible idea. If you’re struggling to stay within Fair Use, Brezina (and most lawyers) would recommend artists to “start with inspiration from someone else’s work” but to keep this borrowing of ideas in the brainstorming stage of your creative process and to put away all distractions as you begin to create. Or better yet, to draw from nature, or a public domain piece, or your own noggin’ to make something totally original to be as safe as possible from violating a copyright.

"There's a fine line between being inspired by someone's work, making fan art or parodying it, and making money from it," adds Shawn Smith, artist behind Shawnimals and Ninja Town.

"Regardless of the perceived size of an artist, music group, or even company—they need to protect their copyrights and trademarks, says Shawn Smith. "At the end of the day, if you're making money from something that's not really yours, you're taking it away from someone who probably needs it."

Need Some More Help?

If you answered the above questions and they prove that there’s an overwhelming difference in your new piece from the original, it could classify as Fair Use.

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