Fair Use and Copyright Issues for Artists
August 14, 2008
Dear Harriete,
I was wondering what you think about copyright issues regarding the printed images on metal that you use?
I am concerned about copyright infringement when so much of my work is collage. For example, when I submitted my dinosaur book titled "7 Extinction Events" to 500 Handmade Books by Lark Books, it was a concern whether I could comply with their requirement that we own the rights to everything in our books.
Concerned Collage Artist,
Judy Hoffman
Judy,
I have no problem using the recycled tin can materials and subsequently the images on the material in my work. As an artist, I think that my work alters the images on the recycled materials sufficiently, not just in appearance but because of the reasons that I use this material and the concepts in the work. The reason that I use the materials are multiple but include the premise of using recycled materials and a commentary about our consumer society. This is in addition to the content within the specific piece. To the right above, you can see my book "Let There Be Light" included in 500 Handmade Books.
There are many examples of artists working with found materials dating back to Dada in the early 20th century all the way to the present. The primary issue that protects artists from copyright infringement is the concept of Fair Use within Copyright laws.
Below is a description of copyright and fair use.
Copyright law covers trademarks, trade names, personal names, publicity, rights, and images of people even after they are dead. Copyright and trademark issues are often discussed together.
Fair Use Issues for artists related to Copyright are described below:
- Fair Use is a limiting concept.
- Fair Use is used in defense of copyright infringement so the artist/defendant must be able to prove that the use of copyrighted material was designed to be a criticism or commentary.
- Fair Use must be a parody, not a satire.
- Fair Use in the artwork must be trans-formative.
- In considering the concept of Fair Use of copyrighted materials in your artwork, the famous brand name or trademark, for example, should not suffer damage from the artist’s commentary or Fair Use.
- In addition, the Fair Use of copyrighted materials should NOT create consumer confusion with the original product, or brand name.
- Fair Use is not a popularity contest.
- The Burden of proving Fair Use is on the Defendant.
Criteria of Fair Use (in approximate order of relevance)
- The artwork should be a parody, not satire.
- When you look at the artwork is there a simultaneous (immediate) recognition of parody?
- Is the artwork intended for a non-commercial purpose as a social commentary?
- Does the artwork dilute or tarnish a famous brand?
- There can be no suggestion of sponsorship from the famous brand or company.
- There can be no potential for confusion with the existing trademark or brand name product.
- It is important for the artist to make work that avoids consumer confusion.
- The commentary under fair use must serve a different purpose than the original trademark or copyright images.
- The commentary (made by the artist) can not take dollars away from the parent copyright or trademark.
- The commentary can not confuse the consumer.
WARNING: Artists should NOT borrow or download images from the Internet.
Now, back to Judy's work.
Judy, there is no doubt in my mind that the use of your collage materials sufficiently transforms the original materials into a Judy Hoffman statement. Obviously, this one-of-a-kind book is intended for non-commercial purposes as a social commentary. None of your college materials dilutes or tarnishes a brand name, nor is there any recognition or inference that there is a sponsorship from any brand. This avoids all possible consumer confusion. The purpose of your book is definitely different than the intended purpose of the original found materials.
Sincerely,
Harriete