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., LL.M.
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; @iplegalfreebies and www.kasterlegal.com.
Sending a cease and desist letter is a common way to notify someone that they are using your copyright protected material without your permission and to request that they remove the infringing use and/or pay up.
A cease and desist letter is only effective if it is sent by the owner of the work. A funny scenario surfaced recently, when a news agency sent a cease and desist letter requesting that a photograph taken by a monkey be removed from a website. But hold on… who owns the copyright in a monkey’s self portrait anyway?!? Evidently, a monkey in a national park in Indonesia picked up a photographer’s camera and snapped a few pictures. (One of them is this hilarious self portrait of the monkey. See above or take a look at –> http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml.)
Since, the news agency didn’t employ the monkey or own the monkey, nor did it license the monkey’s work… the cease and desist letter that it sent… doesn’t have much oomph.
For more info on what to do if you receive a cease and desist letter, see –> http://wp.me/p10nNq-1B
BY: Vanessa Kaster, Esq.
firstname.lastname@example.org and www.kasterlegal.com
When quotes from copyright protected works can be used in other books, blogs or websites without permission of the copyright owner… is a popular topic… lets explore it further.
As I’ve mentioned before that this is a gray area. Unfortunately, there are no set rules about how much or what percentage of a copyrighted work can be used for free (ie without permission of the copyright owner); however, here is a tip to keep in mind. The HEART of a work is heavily protected by copyright law. What does this mean? This could be a famous and popular refrain that embodies the HEART of a famous speech; This could be 300 words out of an unpublished memoir that reveals the key (or HEART) of the story; This could be an original and unique part of a song or lyrics (ie the HEART of the work).
Courts use a sophisticated, multi-part test to evaluate when a portion of a copyrighted work can be used without permission. For the rest of us… using common sense is a good place to start. If you are copying the HEART of someone else’s work to use in your blog, book or website… permission is probably needed.
For more info on this topic see these other two posts: http://t.co/2rhWznM and http://wp.me/p10nNq-fd AND for more info on PUBLIC DOMAIN works that are FREE to use and quote from —> http://wp.me/p10nNq-ft and http://wp.me/p10nNq-gn); @iplegalfreebies and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For personalized legal services you are welcome to contact me at email@example.com
Usually, using a copyrighted work requires permission (often in the form of a license.) However, The Fair Use Doctrine (that is part of US Copyright law) allows copyrighted works to be used FREELY without requisite permission, in some instances. Be forewarned… that what qualifies as a ‘fair use’ is more limited than you might think. Here are a few examples:
- Using a copyrighted photograph in the national broadcast of a criminal trial……… – IS FAIR USE
- Publishing plot summaries for a popular science fiction television series……… – NOT FAIR USE
- A Michael Moore movie poster that copies a “Men in Black” movie poster……….. – NOT FAIR USE
- Using 300 words out of a former president’s biography – NOT FAIR USE
- Incidental inclusion of two paintings in the home of a movie character…………….. – IS FAIR USE
Determining what qualifies as a fair use is a gray area. Courts evaluate fair use on a case by case basis. Their analysis involves balancing several factors: 1) the purpose and character of the use, 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market and value of the copyrighted work. [These factors are out listed in Section 107 of the US Copyright Law.]
Hint: if you think that you might need permission to use a copyrighted work… you probably do.