Question on Digital Art / Fair Use

[FarmersSpirit]

What is the name of your state (only U.S. law)? Florida

Hello!

I create digital art for humor purposes that involves me cropping and taking certain parts of other peoples' images on the web and recreating them as a new single digital image.

I am wondering if these images are protected under the "Fair Use Act." I believe them to be transformative enough to classify, but would like some experts to weigh in.

[NOTE] I tried to include a link to 2 of these images for reference but it appears I cannot

Thanks in advance!

 

[quincy]

What is the name of your state (only U.S. law)? Florida

Hello!

I create digital art for humor purposes that involves me cropping and taking certain parts of other peoples' images on the web and recreating them as a new single digital image.

I am wondering if these images are protected under the "Fair Use Act." I believe them to be transformative enough to classify, but would like some experts to weigh in.

[NOTE] I tried to include a link to 2 of these images for reference but it appears I cannot

Thanks in advance!

First, FreeAdvice generally does not allow for links that are not .gov, . edu, or .org. Posts with links are either flagged automatically by the spam filters on this site or reported to the moderator for editing.

The art you are creating is called "appropriation art." The art is built by taking the creative works of others and either transforming the original into a new original creative work or creating a derivative of the original work. The difference between a transformative work and a derivative work is an important one.

A copyright holder has the EXCLUSIVE right to create derivative works. A transformative work, on the other hand, can be.considered by a court to be a "fair use" of the original work.

Note my mention of "court." Fair use is not an "Act." Fair use is not permission to use a copyrighted work. It is an AFFIRMATIVE DEFENSE to the use of a copyrighted work should the one using the work without authorization from the copyright holder be sued for copyright infringement.

Fair use is a "yes I infringed on the copyrighted work but it is an excusable infringement" defense.

A court decides whether the use is a fair use or an infringement that allows the copyright holder to collect damages.

Good cases to search for online are the ones involving appropriation artist Jeffrey Koons. He has been sued for copyright infringement a lot. He has won a few lawsuits and he has lost a few lawsuits. Reading through the court decisions can help you understand what is looked at by a court in appropriation art cases.

I have provided links to the Koons' cases frequently in the past on this forum so you can also put "Jeffrey Koons" or "appropriation art" into the FA search bar and threads with links should appear.

 

[quincy]

Here are links to two of the many threads about appropriation art where the Koons' cases have been discussed. One of these threads has links to two of the Koons' cases.

https://forum.freeadvice.com/copyrights-trademarks-39/image-copyright-584566.html

https://forum.freeadvice.com/copyrights-trademarks-39/infringement-when-making-something-isnt-available-otherwise-605239.html

Your specific works need to be personally reviewed by an IP professional in your area to give you the best opinion of whether your uses of copyrighted works might be considered a fair use of the material. Fair use is fact-specific and decided on a case-by-case basis.

Good luck.

 

[FarmersSpirit]

Thanks a lot for your replies quincy! It was a huge help.

 

[quincy]

Thanks a lot for your replies quincy! It was a huge help.

You're welcome, FarmersSpirit. I am glad you found the information helpful.

And thanks for the thanks. Much appreciated.

Good luck with your art work.

 

[FlyingRon]

I should point out that the line between transformative and derivative is not clear cut.

Here's a list of court cases that have gone both ways on Transformative vs. Derivative http://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html

Note that putting you in the transformative realm doesn't make you home free. You still have to show that it is fair use: that you use a small enough part of the work and that the rightful owner is not adversely affected by your "fair" use. As Quincy, pointed out, that determination is also indistinct and one you will only get an absolute decision on once you've been sued for the infringement and are in court.

It would be best advised to get permission. If it's truly a "fair" use, you likely will get permission easily.

There are some people I wouldn't poke. Major sports franchise, Disney, and WB (especially Harry Potter) are examples of companies that are overly aggressive in protection of the IP. Furhter, you may find online works knocked off with via DMCA/OCILLA long before anybody determines you have a fair use or not.,

 

[quincy]

... It would be best advised to get permission ...

What I have quoted above will always be the best and legally safest course of action to take.

I often use Weird Al Yankovic as an example of what TO do. Although he relies on the creative works of others to create his parodies, he has never been sued. He always asks for permission from copyright holders to use their copyrighted material. If permission is not granted, he does not use the work - this even though his parodies are good and a fair use defense would probably defeat any infringement claim filed against him.

Weird Al does not rely on fair use because lawsuits are costly and time consuming and there is never a guarantee a court will find in your favor.