Question about free clip art use

[isis297]

NY

My husband found some drawn art he wants to use in a logo. It was on a site that said it was free for personal use but not commercial. In a case like that is there a certain amount of altering that makes it different enough that it would be ok to use?

 

[quincy]

NY

My husband found some drawn art he wants to use in a logo. It was on a site that said it was free for personal use but not commercial. In a case like that is there a certain amount of altering that makes it different enough that it would be ok to use?

Modifying or altering most rights-protected material will be considered derivative works - and creating derivatives is one of the exclusive rights held by a copyright owner.

There is the possibility of using a work protected by copyright to create a transformative work, a work where enough new content has been added to the original work that a new expression or meaning has been created and these additions have created a new understanding of or insight into the original.

Creating a derivative work without the authorization of the copyright holder is infringement. Creating a transformative work can be judged a “fair use.”

Because fair use is a defense to a copyright infringement lawsuit and not permission to use someone else’s rights-protected material, however, it can be a legal risk to rely on it. If the copyright holder believes a use infringes on his rights, a lawsuit can result.

Your husband would be smart to create his own logo from scratch, hire an artist to create a logo from scratch (and then have all rights held by the artist transferred to him), acquire written consent from the copyright holder to use the clip art in the logo, or have an IP attorney review the logo plans to better determine if the use is likely to be considered a derivative or transformative.

 

[zddoodah]

My husband found some drawn art he wants to use in a logo. It was on a site that said it was free for personal use but not commercial. In a case like that is there a certain amount of altering that makes it different enough that it would be ok to use?

Probably. Of course, it is utterly impossible, in the abstract, to know how much altering would be needed to make the new work not a derivative of the original.

Is there some reason why your husband can't create his own artwork or hire someone to do so or contact the owner of the art in question about obtaining a license for commercial use?

 

[quincy]

isis297, you might want to search online for the Jeffrey Koons’ copyright infringement cases.

Jeffrey Koons is an appropriation artist who takes material from copyright-protected works and uses this material to create his own artwork. He has been sued many times.

The Koons cases are informative as they illustrate nicely what a court looks at when deciding whether a new work is a derivative of the original or transformative. Koons has won some cases (his artwork was considered transformative) and he has lost some cases (his artwork was considered a derivative of the original copyright-protected work).

The major factors used by the courts to determine if the use of another’s rights-protected material is a fair use or copyright infringement will include the purpose and character of the use (e.g., commercial use, educational use), and the nature of the work (e.g., informative, entertaining), and the amount and substantiality of the portion used in relation to the original work as a whole, and the effect of the use on the value of or market for the original. Other factors will also be considered.

edit to add links to two of the many Jeffrey Koons cases:

Blanch v. Koons: https://cyber.harvard.edu/people/tfisher/cx/2006_Blanch.pdf

Rogers v. Koons: https://h2o.law.harvard.edu/cases/5190

 

[FlyingRon]

Blanch appears to be the only "win" for Koons. He's lost at five more in both US and foreign courts. Ironically, he also lost an attempt to sue someone else for "infringing" one of his sculptures.

 

[quincy]

Blanch appears to be the only "win" for Koons. He's lost at five more in both US and foreign courts. Ironically, he also lost an attempt to sue someone else for "infringing" one of his sculptures.

There have been settlements - but he has lost more than he has won.