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.
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.]
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.
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