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.

Why is this?  Well, fundamentally there are two ways for a work to be created, namely, either independent creation, or based on (or derived from) an earlier work.  If the earlier work is subject to copyright protection, than any user of that earlier work runs the risk of violating one or more exclusive rights held by the copyright owner.

With the aspects of risk in mind, the result of using another’s work will always flow through the legal framework established by the Copyright Act, namely: 1) was there a violation of an exclusive right; and/or 2) was the use of the work protected by an exception to the exclusive rights, such as fair use, or was the use of the work defensible in another manner, such as the preexisting work is not subject to copyright (i.e., it is in the public domain) or use of the work was de minimis.

In the practice of IP law, ‘fair use’ is one of the murkiest legal doctrines I have ever encountered – there is no certainty, and it is a case-by-case assessment.  It is also, arguably, why “rules of thumb” and “best practices” have been developed by artists over time.  There are four factors, all requiring a balance, none of which is dispositive, and each of which has its own extensive continuum of application – the factors, with very brief comment, are the following:

                1) The purpose and character of use.

One thing to think about is whether the use of the work will be for personal, home use, as compared to professional, business or commercial use.  I would almost always view the former as being dominant in favor of fair use.  But once a copied work leaves the home, all bets are off.  Note: putting something on the internet is not personal, home use.  Consider the French artist mentioned in the post – not only did he put copied works on the internet, but clearly a commercial use by using galleries and offering for sale.

This is also where the ‘transformative’ aspect comes into play.  A court is more inclined to find fair use when the use of a work is transformative in some respect.  No easy explanation here – I would reference this Nolo Article for examples and better understanding.

                2) The nature of the copyrighted work.

The analysis will also depend on the scope of protection – the greater amount of originality in the work, the greater protection.  To understand the difference in scope, consider the following: 1) a photographer who randomly walks down a street and takes a picture of a random passerbyer, versus 2) a photographer who, among other things, specifically chooses a venue for a photograph, specifically chooses a model, specifically chooses lighting, specifically chooses various poses, specifically chooses a filter, shutter speed, and other camera variables.

At the end of the day these photos could in theory look the same, but the legal scope of protection will be greater for the second photo.  The former is more akin to facts (low scope); the latter is highly creative (high scope).  Or put another way, a person who uses the first photo is at less risk than a person using the second photo.  Other ways to think about scope: factual information (low) versus fantasy (high); non-fiction writing (low) versus fiction (high), and so forth.

Consider the Museum Anatomy works: the artists toured the world searching for and specifically selecting various underlying works; specifically chose the model; specifically posed the model; and so on – in summary, even though the works are based on or reference underlying works, the new original elements are highly creative in scope.  

       3) The amount and substantiality of the portion taken.

Although I would caution against oversimplification, this factor is a bit easier to grasp: if you copy all of the work, that’s bad – if you copy a tiny portion of the work, that’s not as bad.  Still, even if a “little bit” of a work is used, the other fair use factors are still evaluated, and may completely offset minimal use.

One caveat is that the assessment of what is “taken” applies to the original elements of the work, not the work in general.  Meaning, there is no infringement if unprotected elements of a work are copied or referenced – this is largely why, for example, I view the Bush paintings as being fair use of the identified preexisting works.

      4) The effect of the use upon the potential market.

This factor is in some respect a bit more complicated than the others.  But if the user of the underlying work could have purchased or licensed the copyrighted work, this factor then weighs against a finding of fair use.  So as a major consideration, I would always look at whether the underlying artist, if known, makes a living from their works, and particularly with respect to the work that was referenced or copied.

If the use of a preexisting protected work is not a fair use, then the question falls to whether an exclusive right was trespassed on.  Or put simply, 1) does someone own the copyrighted work, and 2) were the protected elements copied in a substantially or strikingly similar manner?

Consider the ‘strikingly similar’ copying of the Wishbone work by the French artist:

compared to the Museum Anatomy work:

Even though the French artist was selling a painting, all of the original elements in the Museum Anatomy photograph were exactly copied.  Frankly, the painting looks like nothing more than a digital printing of the photo onto a canvas – the epitome of an infringement.

There are rumors spreading around about some 5-point system that a court would consider in the case of using a photograph as source/reference material for paintings.  

From the legal side of things, there is no basis or merit to any “system”, “best practice”, “rule of thumb”, “10% test”, etc. – none of these are a defense to copyright infringement.

Instead, use the following: 1) do you own it or did you create it; 2) if yes, good to go; if no, get permission; 3) if you cannot get permission, don’t use it; 4) if you use it, you assume the risk.

Now, what a court could or would use is the 4-factor fair use test I briefly mentioned, and which is discussed ad nauseam on the internet.

Apparently, a photo used from the Internet must be altered significantly in order for it to be passable to use in a painting.  What would be considered significant change?

Not true.  First off, any photo in the public domain is fair game without repercussion.  However, I would caution: a photo that is “publically available”, even on a widespread basis, is NOT the same thing as a photo that is in the “public domain”.  Many adverse parties I engage with follow this misconception.  It’s like saying, “this song was file shared millions of times over Napster, so it must be in the public domain.”  There are very limited ways as to how a work can enter into the public domain, the most common being expiration of copyright.  But widespread distribution or availability is not one of them.

Now, assuming the photo (or other work) is subject to copyright, the use of the photo must fall into an exception, such as fair use – as already provided, this is not an easy answer and depends on a number of variables – or the copying of the protected elements must be below a substantial similarity threshold.[1]  Thus, a “significant change” is one that results in less than a ‘substantial similarity’ of the protected elements – the wiki explanation on the topic is sound, but illustrates the complexity in what otherwise seems like a simple question.

Obviously, permission from the artist or rights owner is the best bet (perhaps in writing, or through email that can be later verified), but if they can't find the photographer - what are the rules for this particular scenario?  Do they need to credit the photographer in their painting title?

Agree – if you do not own it or create it, I would always suggest getting permission.  Because intellectual property rights are not physical property, permission is often in the form of a license, which is quasi-property and contractual (e.g., pertains to, and may be governed by, aspects of property law and contract law) in nature.  A license can take the form of exclusive and non-exclusive – if it is exclusive, it must be in writing.  A non-exclusive license (“NEL”) can be oral or implied, but is highly advisable to have in writing.

If you cannot get permission, do not use it; if you use it, you assume the risk.  Those are the rules.

“Credit” is largely irrelevant to exclusive rights provided by Section 106 of the Copyright Act; adverse parties I engage with often say something to the effect of, “but I gave credit” or “I gave attribution”, which is not a defense to an infringement.   On the other hand, ‘giving credit’ may be negotiated or presented as a term in a license.  Other than that, ‘credit’ and ‘plagiarism’ have little to no legal consequence with respect to copyrighted works.

What if a painter saw a photo of woman sitting in a coffee shop on Instagram and just wanted to recreate the face in their painting, but not the background, would this still be considered copyright infringement?

Not black and white, so the answer is: it depends (a standard attorney answer).

First, is the work subject to copyright?  Second, assuming so, the recreation of the face may or may not qualify as a fair use.  Is the recreated painting going to hang in the bedroom of the painter’s house or part of a classroom exercise?  Or will it be displayed in a gallery or on the internet.  While not the end of the discussion, the former are much more likely to be a fair use.

If an exception to infringement does not exist, then the infringement framework follows: does someone own a valid copyright, and were protected elements copied?

Was the woman or the coffee shop the focal point of the photo?  When the photo was taken, was it random with little originality?  Or did the original photographer put great care and selection into what ultimately ended up as the two dimensional work of visual art?  If the latter, were the original constituent elements (lighting, shading, angles, location, model, facial expression, pose, and other variables) reproduced beyond a ‘substantially similar’ manner?  If yes, than that would seem to be an infringement.

What if the photo was of a group of people in a public place, can they paint those people - or is that also some sort of infringement.

Not black and white, and the explanation above is just as applicable.

While underlying public or private property rights may dictate how or where a photo may be used, they have no relevance as to protectable elements of copyright.  It is, potentially, an invasion of privacy rights issue more than anything else.  The more drones enter into society (i.e., the ones used for filming or taking photos), the more relevant this question will become.

What if an artist wants to create a painting of Neil deGrasse Tyson, but will never be able to photograph him in person.  How much would they have to alter a photo(s) (such as a photo found from a Google Image search), before it would be considered their own, or out of reach from a potential copyright infringement?

As an initial point, the artist can simply use “independent creation” to create the work.[2]  Copyright does not give a monopoly to the idea of painting Neil deGrasse Tyson; it only protects the expression of the idea.

Next, is the photo subject to copyright protection or is it in the public domain?  Assuming the photo is protected and the artist insists on using an underlying work, then he/she should get permission, and/or understand the assumption of risk.

Now remember, I can make an exact or near-exact reproduction and hang it in my home and have a very strong fair use argument.  So again, it depends on if the photo is subject to copyright, and if so, is the use of the photograph protected by an exception or a defense to infringement.

If no exception or defense, then the copying of protected elements must not pass a ‘substantial similarly’ threshold.  Regrettably there is no rule of thumb, best practice, guide, system, etc. that can give a clear answer to what that might be.

In regard to ‘owning’ the painting, keep in mind copyright provides an owner the exclusive right to prepare derivative works based upon the copyrighted work.  So if the painter does nothing more than copy the photo in a substantially similar manner and/or prepares a derivative work, the painter will have no rights.

What if the photo was of a bird on a block of ice – one that only lives in remote polar region – that a professional photographer on scene or a tourist on a cruise took?  Would the same rules apply to the copyright of the photograph if the painter who used the photo from an online image search, flipped the image, changed the scale of the bird to its surroundings, added a bit more color, and re-created it in oil paint on top of a painted clock (instead of a block of ice)? Would the photographer who took the original image be able to claim copyright infringement, knowing that the painter never traveled to photograph the bird?

Quite an interesting scenario, and there’s so much going on that the only answer is: it depends.

First, the fact that it does take some time, toil, and effort to find the subject matter and/or create this specific work is of some relevance.  That is, it is not as random and not as easy as just walking down the street and taking a picture of a bird resting on a frozen pond.  All things being equal, I would view the former as having a greater scope of protection than the latter.  Similarly a court might view the barrier or failure to travel by the painter as of some relevance, especially in a fair use assessment.

Next, there is not necessarily any relevance to the fact of ‘who’ took the photo, unless, for example, the pro photographer put great care and selection into variables associated with the copyright.  On a related point, if the pro photographer has a market for the photo or other works, that is also of relevance.

What am I getting at?  That the same framework repeatedly discussed herein applies: if you do not own it, get permission; if you do not get permission to use, you assume the risk; use of the protected work must fall within an exception or defense to an infringement, or the use is subject to liability.  Recall fair use is based on four factors: 1) nature of use; 2) scope of protection; 3) amount of use; and 4) effect on potential market.

If the use does not qualify as an exception, nor is it protected by a defense, then the use must be below the ‘substantial similarity’ threshold.  So in this sense, the same rules apply.  Assuming the use here is not fair use or otherwise defensible, on the face of it, I would be apprehensive to view: reversing, change in scale, more color, oil paint, and clock (instead of ice) as being enough to avoid infringement.  Other than the clock, these changes seem more mechanical than original or creative.  What the painter should focus on is creating new, original elements in the painting – it is o.k. to be inspired.  That is the driver behind copyright law and the constitution.

Have you seen the new document the CAA (College Art Association) released last week?  

Looks like a great resource.  But at the end of day, as suggested in the URL, it is merely “best practices”.  Or put another way: an artist that uses another work in whatever fashion is ultimately responsible for that choice.  End of story.

[1] Assuming there is ‘access’ to the work
[2] See SubCh 308.1, U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (3d ed. 2014)