Copyright Issues for Artists Feed

Fair Use and Copyright Infringement - No Confusion

Artists who use copyrighted material in their artwork are often concerned about whether they have violated the copyright of the original source material. One of the key principles of Fair Use is avoiding consumer confusion between your artwork and the original copyrighted work.  Here are a few examples to illustrate the issue.

Infringement Examples
HPlexlogo-v2 In a recent case, J.K. Rowling won a copyright infringement lawsuit against RDR Books and Steve Vander Ark, the author of "The Harry Potter Lexicon" - a so-called encyclopedia based on the Harry Potter series of books by J.K. Rowling.  The judge ruled that the encyclopedia was an infringement because "The Harry Potter Lexicon" could confuse the consumer.  The text did not contribute enough original content and was not sufficiently transformative -- it was an obvious derivative of the copyrighted work. This legal decision prevented the publication of the "encyclopedia" as a book in its original form -- but see the UPDATE below.  [Ark still maintains a website.]

Rogerspuppies1Koons_puppies In the 1992 case of Rogers v. Koons, the ceramicist, Jeff Koons created a sculpture titled, "String of Puppies" based on a black and white photo taken by Rogers titled, "Puppies." Koons openly admitted that he used the photo as the basis of his work.  The court ruled that the sculpture infringed on the copyrighted photo because it was an obvious copy and substantially similar. Koons contributed no original content or commentary to the photo. 

Fair Use Example
In the case of Kelly v. Arriba Soft, the court ruled that "thumbnails" or small images used by Internet search engines and other websites to help guide users to other content is Fair Use.  Kelly owned a professional photography website and objected to the thumbnails. In the court's decision, the integrity and marketability of Kelly's images were not infringed upon because the thumbnails were transformative and would not confuse consumers seeking quality images. 

Do you have any questions about Fair Use in regard to your work? ASK Harriete.

Harriete

 

Lexicon UPDATE regarding The Harry Potter Lexicon

I received a very informative email from RDRBooks stating that they have in fact published a revised version of the Lexicon.  The judge in the case in his decision in 2008 also issued a "roadmap" on modifications that would allow the Lexicon to be published within the Fair Use doctrine.  In the revised version, Ark added about 600 original commentaries to the 2,300 entries.

Also noted was an article titled, “How Fair Use Prevailed in the Harry Potter Case,” available for free download from the Association of Research Libraries and the American Library Association.     

 

This post was updated on December 20, 2021


Fair Use - Is your work "transformative?"

Sculpture by Harriete Estel Berman using products from 3M products as an example of transformative use.pu
It is important for artists to understand the concept of Fair Use
so that instead of being intimidated by copyright law, they are inspired by the use of found materials. The concept of Fair Use has a long history and is intended to advance and stimulate creativity.  When you use copyrighted material in your work, the finished product must be transformative. 

 

3Mmback-72 Transformative means that the original use, purpose, or intent of the material has been changed significantly into something substantially different in both appearance and objective. In my work shown here (as an example), the sculpture titled, 3M & m Candy Dispenser, the original tin can packaging for 3M Scotch tape, electrical tape, Scotchgard, and Spray Mount have been re-purposed into a candy dispenser as a pun on the words 3M and m & m candies.

 

Boucheron Another example of transformative work is shown (below) from Emiko Oye.  On the left are two views of an original Boucheron Necklace designed for Maharajah of Patiela (circa 1928). 

 

 

 

EmikoBOUCHERONOn the right, Ms. Oye has recreated the design in LEGOs.  She has transformed the original design and made it in her own style.  In addition, the LEGOs themselves have been transformed beyond a children's toy into social commentary and a unique appearance.

Further examples of Fair Use under Copyright Law will be continued in the next posts including important points for jewelry artists to consider.



Many people have requested permission to share the content on ASK Harriete.


FOR PRINT: You have my permission to share a post for educational purposes in whole or in part as long as you include my name, Harriete Estel Berman,  ASK Harriete, the URL for that particular post along with the date of the post, and the date the post was printed. 

INTERNET: It is not acceptable to copy an entire post from ASK Harriete on your blog or website. This would be duplicate content on the web. Duplicate content on the web is negated by search engines. However, it is appropriate to write a review, comment, rebuttal, or endorsement and link to the original posts. The same goes with Facebook or any social network.  LINK to the original post adding your own original comment or content.

This post was updated on December 20, 2021
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Cease and desist letters designed to scare artists.

There are occasions when artists use (or should I say "reuse") found materials in their artwork.  This could be the image of a cartoon character, a famous person, tin cans (like me), or even candy wrappers like Charlotte Kruk. The use of copyright-protected materials is legally protected under the concept of Fair Use. (Read more about the concept of Fair Use in previous blog entries.)

Sometimes large companies threaten artists who have used copyright-protected materials in their art by sending a Cease and Desist letter. This is what happened to artist Charlotte Kruk. Kruk-Tide-sm

Miss Charlotte makes sculptural clothing out of discarded product packaging as her artwork. (Check out her website.) Typically, the material is literally public trash that she sorts and assembles into artwork.  The photo to the right shows an amazing outfit constructed from TIDE boxes.

Some of the artwork by Miss Charlotte uses candy packaging such as in a costume titled, Snicker Nickers (below).  After working with candy packaging for several years, Miss Charlotte received a Cease and Desist letter. Very scary indeed. Kruk-snickers_nickers

Cease and Desist letters are designed to scare a person into submission. First, the letter arrived by Certified Mail, Return Receipt Requested. The letter was printed on stationery from a large N.Y. City legal office with the names of 111 lawyers on the letterhead alone.  I am not exaggerating, I counted the number of lawyers.  It is intended to intimidate the receiver from beginning to end.

The text of the letter goes on to describe an alleged legal infraction of using the candy wrappers. The lawyers for the large candy corporation define the use of the candy wrappers as unacceptable, along with numerous details. Page 2 says:

"Therefore, we request that you immediately cease designing clothing made from these wrappers and turn over to our office for destruction by August 13, 2001,  all designs using our client's candy wrappers that you have remaining in inventory."

How would you feel receiving this threatening letter and suggesting that you turn over your artwork for destruction? Most artists don't have a lawyer on retainer, a budget for legal fees, or any money at all to pay for legal defense of copyright infringement.

Ms. Charlotte was paralyzed for years.  Scared into "artist's block", literally.

Well, I am happy to say that Miss Charlotte has no less than the United States Supreme Court on her side.  Fair Use of copyright-protected material is entirely legal, even if a thousand lawyers try to intimidate the artist or maker.  Furthermore, you are not required to take any action or cease any action until a judge declares so.  

In a series of blogs, I will discuss the major factors that provide Fair Use protection for artists and makers.  But my main message is, DON'T BE INTIMIDATED!

Krukmatadorfront Eventually, Miss Charlotte got unfrozen and made a new clothing sculpture out of M & M candy wrappers (again from public trash).  It's a Matador Costume, titled "The Reign of the M & M" perhaps to take on the bull of Cease and Desist letters. 

Krukm&mdetail




 

Have you ever received a Cease and Desist letter or something similar?  It would be interesting to hear your story. Share your experiences by telling ASK Harriete.  

 

 

 

This post was updated on December 20, 2021


Understanding Fair Use in Copyright Laws

Copyright Laws and the concept of Fair Use.

Many artists and makers who use found materials in their work are concerned about copyright infringement. The legitimate use of found materials is sanctioned under the concept of Fair Use within the large body of Copyright Laws.

There are several key provisions to protect artistic work under the umbrella of Fair Use.

Perhaps the most useful and easily understood principle of Fair Use is whether the artist's use will be confused with the original copyrighted brand name or product. 

Deliema of Desire Candy Box about the painful things we do to ourselves with food.from

For example,
I used tin cans from SLIM FAST products in a candy box titled, The Dilemma of Desire. There is little chance that this work would confuse the consumer or hurt the brand name SLIM FAST.  

Fundamentally, Fair Use allows and encourages "creativity for the enrichment of the general public," but does not permit a use that would supersede the original purpose of the copyrighted materials. 

In legalese, the use must be interpreted as transformative, not merely derivative.  In plain English, the artist or maker must change or modify the original enough to create something clearly new and different.  

So what is enough difference?  Obviously, copying a book, e-book, tutorial instructions or artwork is not O.K.  Sometimes the fine line may be somewhat gray.  Jeff Koons lost his claim of Fair Use when he made a three-dimensional sculpture based on another artist's photograph. In this case, he sent the original photograph to the manufacturer to construct the sculpture.  In essence, he made a near copy of the original.

So as long as your work transforms the original content or intent to create something new -- whether you add, subtract, modify, or distort -- you're probably OK.  Just don't copy someone else's work and call it yours.



This post was updated on January 5, 2022 

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How can I protect my designs?

Dear Harriete,
I am Ms.Chie Kudo, a member of SNAG living in Japan.
I will exhibit my work at a kind of jewelry trade show. I am afraid that my design will be copied by buyers or other jewelers without my authorization. To minimize such a chance, I think I need to have proper knowledge about intellectual property rights. KUDOwave_rings.copyright

Sincerely yours,
Chie Kudo

Dear Chie-san,

There is no guarantee that people will not copy your ideas.

However, in the United States, you automatically have copyright to protect your work.  The copyright is for one design idea or one series. The tricky part is that unless you officially file a Copyright Form with the U.S. Copyright Office you can not protect your ideas or design in court. In other words, you can not take a copyright infringement case through the legal system (filing a complaint against the offending party) without having previously filed the official Copyright Application Form and the Copyright Office has to grant you the copyright.

To get a Copyright, you need to fill out a Copyright Form online or by using a paper copy and mailing it in. This must be accompanied by a payment. Online is supposed to be faster and costs $35. If you fill out the paper form and mail it by regular post it will take longer and it will cost more.

This is the address for the online form in case the links above do not work for you.http://www.copyright.gov/forms/

There is no guarantee that the copyright will be granted from the U.S. Copyright Office despite the fact that you paid the money. (The money will not be refunded if they refuse to give you a copyright.)

The U.S. Copyright Office will only grant the copyright if they decide the design is a unique copyright design or idea. While the art and craft world considers all ideas inherently unique, the U.S. Copyright Office personnel are not artists or art critics. Their idea of what is unique lags way behind the arts and crafts world.  (This is just my personal opinion.)

If you get the official Copyright approved for your design, and a person/business infringes on your copyright, the official Copyright you paid for still doesn't protect your work unless you take the offender to court.

This will cost a lot of money, but you may decide that this is worth the investment.

If you do not apply for Copyright or do not receive Copyright from the U.S. Copyright Office for the design, you can not take the person to court effectively even if they stole your idea.

Keep in mind, that you automatically have Copyright by law for your unique idea or design. For this reason, you could always send them a "cease and desist" letter that either comes from your "desk" or from your lawyer's desk. In essence, a "cease and desist" letter threatens the person (in a polite, firm, and business-like manner) that you will sue them if they do not stop copying your design. 

Keep in mind that the "cease and desist" is only a threat. (Read more about "Cease and Desist letters" in a future blog.)   It is just like "yelling" at the person on paper hoping that they will stop using your idea. Maybe they didn't even know about your design ideas or they will feel threatened enough by the "cease and desist" letter to stop. They may not even realize that they are infringing on your unique design or ideas.

The best protection for your ideas is constant innovation. The more your work reflects your unique aesthetic and technical innovations the less likely that person can or would copy you.

Sincerely,

Harriete

Ring photo Courtesy of Chie Kudo

This post was updated on December 15, 2021


Where do I find a COPYRIGHT APPLICATION?

The U.S. Copyright Office is now accepting electronic filing of copyright registrations.

Copycatscratch72cu

Advantages of using the Electronic Copyright Office (ECO) system include:

• Lower filing fee of $35 for a basic claim (for online filings only)
• Fastest processing time
• Online status tracking
• Secure payment by credit or debit card, electronic check, or Copyright Office deposit account

 

The U.S. Copyright Office offers a great tutorial and supplemental information about Copyright. Before filing online read the eCO Tips, eCO FAQs, and the eCO Tutorial which are listed on the opening page.  The information is presented as a PowerPoint-type presentation which is easy to follow though it takes a little time.

ASK Harriete

 

This post was updated on January 9, 2022

 

Fair Use and Copyright Issues for Artists

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. 7extinctioncover.JudyHoffman 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

500HANDMADEbooks  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. Spicebook_full2_600 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.FreeinternetWeb

 
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.
Fair Use is easier to prove if the artwork is transformative.
WARNING: Artists should NOT borrow or download images from the Internet.

Now, back to Judy's work. 7extinction

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.

Look for a future blog about Parody v.s.Satire for more information related to this topic.
Sincerely,

Harriete


This post was updated on December 15, 2021