Copying another artist’s work into a New Medium can violate copyright

The idea behind a piece of artwork is not protected by copyright.  However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work.  What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit.  For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation.  However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph.  Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.

Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:

• Photographing a sculpture… for use on a postage stamp
• Making a painting of another artist’s photograph… to display in a gallery show
• Making a campaign poster out of another artist’s photograph… to sell and raise money
• Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
• Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J  rendition… to display and sell

Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling.  However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.

The solution is to get a license from the original artist to make a derivative work.  (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)

BY: Vanessa Kaster, Esq.

For more personalized legal services contact me at vk@kasterlegal.com

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian.

Can copyright protect your IDEA?

Copyright protects the original expression of ideas but copyright does NOT protect ideas.

There is currently a hot debate over a ‘Tiny Hat’ Saturday Night Live skit …where a comedy duo who had already produced a successful comedy skit about wearing ‘tiny hats’… is claiming that Saturday Night Live stole the ‘tiny hat comedy skit’ idea from them.  Unfortunately for the comedy duo, copyright law doesn’t grant them the exclusive right to the ‘universe of all comedy skits about tiny hats’… just because they were the first produce a popular skit on the topic.  Copyright law does, however, protect the dialogue and the video made of the comedy duo’s skit.   And if either of these aspects of the skit are being copied, imitated, plagiarized, distributed or sampled without permission then copyright law can come to the rescue and battle the alleged infringer.

The IDEA of a skit about Tiny Hats isn’t protected by copyright law. (For example there are a lot of plays written about Star Crossed Lovers: Romeo and Juliet, West Side Story… etc)

(…both skits are pretty darn funny.  Google ‘Battle of the Tiny Hat’ to take a look!!)