Art imitates life, or so they say, but when does art imitating life as captured in a photo become copyright infringement? I was a college newspaper editor when Kurt Cobain died. (This dates me, I know!) To commemorate Cobain, we published a pencil-sketch our staff artist modeled after a photo from one of Cobain’s albums. Had I been lawyer-Amy back then rather than journalism-student Amy, I might have warned, “Not so fast.” Did our staff artist’s sketch infringe the album photographer’s copyright? On one hand, the sketch wasn’t identical to the photo but a stylistic rendition of it that took artistic skill and creativity. On the other, the sketch was based on the photo, and the two works looked pretty similar to me.
Fast-forward to 2009. During the recent presidential election, you likely saw the campaign poster of President Obama with the word “Hope” below his image. Street artist Shepard Fairey created that poster and others like it based on an Associated Press photo. When the AP threatened to sue Fairey, he beat them to it, suing for a declaration that he did not infringe the AP’s copyright. The AP countersued for infringement, alleging that the posters “copy all the distinctive and unequivocally recognizable elements of the Obama Photo in their entire detail, retaining the heart and essence of The AP’s photo.” Fairey disagrees, of course, alleging in his lawsuit that he “transformed the literal depiction contained in the [photograph] into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph.”
In other words, Fairey argues that his use of the photo was “fair use.” Fair use is a defense to copyright infringement and means that, even though you’ve admittedly used someone else’s work, or a portion of it, in your work, your use of the work was fair and does not require a license.
Fair use is the compromise between two competing interests: 1) an artist’s right to own her creative work and 2) an artist’s ability to express herself by reference to others’ artistic works. If no one owned their creative works, they would have little incentive to create. On the other hand, nothing is created in a vacuum, so artists must have the ability to refer to others’ works in creating their own. A classic example of fair use is a music critic quoting the lyrics of a song for purposes of commenting on the song. Without the right to quote the song, the music critic could not offer his criticism.
Whether the use of another’s copyrighted work in yours is fair isn’t always an easy question to answer because it depends on several factors: 1) the purpose and character of the use, such as whether your new work is “transformative” or alters the original work with new expression, meaning, or message, whether it is comment or criticism, or parody or satire, 2) the nature of the work (the use of a factual work is more likely to be found fair than the use of someone else’s fiction or creative work), 3) the amount of the original work you used, qualitatively and quantitatively, and how much of your work uses the original, and 4) whether your work usurps the market of the original.
Courts have weighed in on similar situations. Just last year, in the case Gaylord v. United States, 85 Fed. Cl. 59 (Fed. Cl. 2008), a court held that the U.S. government fairly used in a postage stamp a photo of part of the Korean War Veterans Memorial. The court’s rationale: The stamp transformed the image by creating a different expressive character through a surrealistic environment with snow and subdued lighting and had little impact on the market value of the Memorial.
And in the case Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), where an artist created a collage using a pair of legs and feet from a fashion magazine photo, a court again found fair use. The court again focused on the transformative nature of the new work, finding that the artist used the original work to comment on “the social and aesthetic consequences of mass media” rather than to exploit its creative virtues.
But the same artist lost his fair-use argument years before in the case Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), when he created a sculpture copying a note-card photo of a couple and their puppies. The court found that the artist copied the essence of the photo and did so in bad faith, primarily to profit from it.
So how would a court rule on that collage you created using scraps of newspaper photos? What about your sculpture depicting the image in a photo you found online? While each circumstance is different and must be considered in connection with the fair-use factors, certain patterns emerge from the cases mentioned above: If your work transforms the original, uses only so much of the original as is necessary to make your point, is for comment or criticism or satire or parody, doesn’t use the original in its entirety, and doesn’t usurp the market for the original, your use is more likely to be fair. And keep in mind that mere transformation into another artistic medium isn’t good enough. Transformation means new expression, meaning or message. Little pieces of magazine photographs shaped into an entirely new image? Probably fair. A drawing you traced from a magazine cover? Probably not.
And always remember: When in doubt, don’t use it. Or get a license.
Predictions on the Fairey case? I’ll go out on a limb and predict that Fairey has the fairer side of this fair-use debate based on what seems to me to be a transformative use of the photo.