Q and A with Artists: creation, fair use, infringement - fun times!

Follow up Q&A

In a recent post I discussed my experience with Chadwick and Spector and the applicability of (or lack thereof) the ‘transformation’ aspect of fair use to their creative works.  Some additional questions subsequently arose that I wanted to take some time to follow up on.

Is there anything to help artists understand the implication or consequence of using a photograph(s) as a reference for a new works, such as a painting or collage?

Well this goes straight to the heart of the issue I discussed in the post – that, from a legal standpoint, there is no black/white, yes/no, bright line, etc. answer to such a question.  And more poignantly: underlying rights in preexisting works are not meant to stifle creation, but instead inspire it.

That said, I would make a few comments, emphasizing this is from the legal perspective.  Most importantly: if you do not own it, do not use it; if you use it, no matter the fashion, you assume the risk and consequence of doing so.  The risk can be reduced or mitigated by getting permission, such as with a written agreement or a license.  If you cannot determine who owns a copyright, the answer shouldn’t be, “hhmm, must be o.k. to use” – this can be grounds for willfulness.  Instead, move on to another work where the rights can be determined or resort to independent creation.

Transformation of Art

Transformation of Art: something more than meets an ‘eye’ test.

As I sat here for quite some time trying to think up a catchy title encapsulating something about “transformers” and “more than meets the eye”, I am reminded at just how uncreative I am.  Which only serves to underscore my amazement and appreciation of the artists I work with.

Recently I had the pleasure of working with Laura Spector and Chadwick Gray, the artists behind the compelling Museum Anatomy series and other related pieces of work – their work viewable on the website http://chadwickandspector.com.

I met Laura and Chadwick through unfortunate circumstance, as it turned out a so-called “artist” based in France was reproducing, offering to sell, etc. counterfeit paintings of their Museum Anatomy series via a number of online French galleries.  What I told Laura at the outset is that taking an action here in the US and trying to accomplish a legal result in France would be nothing short of a miracle.  However, through crafty legal work and utilization of the public report site, Copypedia, we were ultimately successful in getting each and every gallery to remove any and all of the infringing content.  Success!

Losing the ‘Safe Harbor’: No DMCA protection without the ‘D-A’ (Part 2 of 3)

Today I took a look at Square Ring v. U-Stream et al., a not-so recent Delaware case (filed in 2009) just now reaching the stage where the Court is ruling on various motions for summary judgment.  The recent Memorandum provided by the Court is compelling for a couple of reasons, the first of which being Square Ring’s ability to survive U-Streams motion for judgment because of the lack of legal precedent around the meaning of “expeditiously.”

As I mentioned in my last post, proving an act is ‘expeditious’ at pre-trial is a challenging prospect because, as highlighted by other courts, “the inquiry into ‘expeditiously’ was meant to be a factual rather than a legal inquiry.”  This is further compounded by the limited legal authority discussing the matter.