By John Paul Benitez & Coco Soodek, Attorneys at Law
Several months ago, the American Watercolor Society awarded its 2008 Gold Medal to Sheryl Luxenburg for the work Impermanence (pictured above), a hyper-realistic painting of an old man juxtaposed with a rotting piece of fence. Luxenburg’s prize-winning work consisted of emulations of two stock photographs. Employing a pointillist’s technique, Ms. Luxenburg blew up the two stock images and used the enlarged pixilations to guide her brush.
A series of spontaneous, vigorous debates erupted on the Web about Luxenburg’s conduct and entitlement to the prize. Many people assumed that Impermanence infringed on the copyrights of the stock photographers and, therefore, should be disqualified.
These assumptions about infringement and about ways to avoid it underscore a persistent and confusing question for the pop or mixed-media artist: When do you cross the line into copyright infringement?
The Fundamentals of Copyright
Copyright protects the creator of a work by embedding exclusive rights to copy, sell, show and change the work within the work itself. However, copyright protects the rest of the world by placing temporal and discursive limits on those exclusive rights, allowing for improvements, academic dissemination and comment that may come later. For example, only you can make posters from your 1999 sculpture of a bowl of mangoes, but I can publish that poster to illustrate my contention that mangoes were a popular artistic subject in 1999. And, 70 years after your untimely death, I can sell those posters for my own account.
In spite of copyright’s long history, few people, including artists (and some lawyers), are clear on when an artist can use another’s work and still not be liable. Comments on the Web following Luxenburg’s victory revealed a persistent (and erroneous) belief that you can use another’s artistic creation as long as you use less than 30 percent of it.
Here is the general rule: Use of all or any part of someone else’s copyrighted work constitutes copyright infringement. This includes copying and making derivative works from another’s work, as well as distributing, displaying and selling someone else’s work.
Translation: A work is "copied" if it was made using the original as a "model, template or even inspiration," or if the new work shows a substantial similarity to the old work and the artist had access to the old work. Judges also frequently regard "substantial similarity" as an indication of an impermissible copy, so if a new work includes copyrightable elements from an original work, and not merely ideas, then it may be infringing on that copyright. For instance, George Harrison’s "My Sweet Lord" was found to infringe on the Chiffons’ "He’s So Fine" because of an overlap of three notes.
Similarly, any transformation of an original work into a new work can be considered a "derivative work."
The bottom line is that when appropriating content, you clearly make a copy. If you copy a protected element of the original work, you make an infringing copy. If you transform those protected elements in some way, you either 1) create an infringing derivative work, or 2) qualify for Fair Use. An artist who claims his or her copyright of another’s work is "proper" is using the defense of Fair Use. If the argument is valid, the artist may not have committed legally "improper appropriation," even against a strong rights holder. This is where things get tricky.
Fair Use (The Muddy Waters of Copyright)
Fair Use is a very narrow exception to a very broad rule. Fair Use extends the exclusive rights in copyright to a third party — but only for specific purposes, along a tight continuum. An otherwise infringing use moves along that continuum depending on the following four factors, none of which are controlling:
- If the artist intended to sell the copy or derivative work, then that pushes the copying against the argument of Fair Use. However, even if the purpose is more than nakedly commercial — such as a purpose to otherwise "transform" the work for criticism, teaching or scholarship — it will not end the dispute. Nor does the hope of profiting from the work automatically mean it does not qualify for fair use, if, in fact, the balance of factors favor Fair Use.
- A strong copyright in the work copied pushes against the argument of Fair Use, particularly if it is a classic form of art — a song, a painting, a photo. However, again, if, in light of the other factors, a sound Fair Use claim is made, the strong copyright protection will not, by itself, destroy the Fair Use claim.
- A use that was only enough to fulfill the artist’s intention pushes the use toward the argument of Fair Use. Too much appropriation for the artist’s purpose pushes against Fair Use. For example, in order to "criticize" a literary work, a critic may need to quote enough of the work so that the audience will recognize what is being critiqued. In some cases, a critic may be allowed to quote many passages if it’s necessary to convey the point. In others, the critique may only justify quoting a few passages.
- If the copy or use would compete with the original in the marketplace, that is a clear indication that the use is not a fair one, pushing against the argument of Fair Use. Part of this analysis relies on whether a buyer could choose the copy over the original, or whether the original creator is capable of capturing the market of the derivative work.
The avenues these factors can create are winding. They are considered as a whole, with each factor pushing and pulling the other toward and away from Fair Use.
There are examples of cases that show how confusing the debate of Fair Use can be. For instance, the rap group 2 Live Crew made a recording by combining the iconic bass line from Roy Orbison’s "Pretty Woman" with new and raunchy lyrics in the song "Oh Pretty Woman." Orbison’s record company, claiming copyright infringement, took 2 Live Crew all the way to the Supreme Court, but 2 Live Crew won on Fair Use grounds.
2 Live Crew’s song was clearly made to make money, a strike pushing away from Fair Use. However, the fact that their purpose was also to parody the classic’s naiveté pulled the use back toward Fair Use. On the other hand, 2 Live Crew’s song appropriated the very essence of the original. This pulled away from Fair Use. Yet the fact that the parody would not be recognizable without copying the distinctive riff pulled toward Fair Use once again. Finally, the fact that Orbison was unlikely to reach out to new fans by making critical rap versions of his hits pulled even further toward Fair Use, allowing 2 Live Crew to win the day.
In a more recent case, Steven Vander Ark, a former library media specialist at a middle school in Michigan attempted to publish an encyclopedia of knowledge mined from J.K. Rowling’s Harry Potter universe. Despite positive feedback from Rowling herself posting to the Harry Potter reference Web site Vander Ark maintained, when he moved to publish the book of his efforts, entitled "The Lexicon," a law suit ensued. The librarian from Michigan was not as fortunate as the rappers from Miami.
The commercial motive to sell the encyclopedia pushed against Fair Use. The "transformative" nature of taking facts from the texts and memorializing them in a reference guide pushed toward Fair Use. However, the author lacked restraint in quoting passages. His copying, which was more than necessary for many entries, pushed against Fair Use. Finally, Rowling and her publishers planned to create reference and companion materials themselves. This convinced the judge that "The Lexicon" could have deprived Rowling of customers for her own impending encyclopedia. Fair Use was denied. Better Safe than Sorry
Academics and judges have struggled to precisely define the line between infringement and Fair Use — both where it is, and where it should be. 2 Live Crew’s copying of almost an entire song is Fair Use, yet the federal judge in George Harrison’s "My Sweet Lord" case commented that sampling just three notes from a song can trigger copyright infringement.
In spite of the meandering path of copyright and fair use, there is a roadmap to guide you:
1. If you are using any image, song, recording, text, font, design, etc. that does not belong to you, then either try to obtain the rights from the owner, or do not use it.
2. If you choose to use it without permission and you, in good faith, believe that your use is fair, then memorialize in writing your intentions for your use. You will be best served if you can build the narrative of your work to reflect the importance of appropriation to your original expression. Your story should stress why the copy is integral to your method, that it’s more than background or entertaining filler. Also, as much as the artist may resist making a commodity of his or her work, narrate how your message is incompatible with that of the original — so much so that it is not an economic substitute. Yours is a new work, what some term "transformative," and no one would buy yours instead of the original. It’s so new, in fact, that the original author would never put forth your message in newer versions of his or her own work.
3. Even if you think your use will not infringe on the owner, consider the extreme costs of litigation and the toll it may take on your business and your life. Then, make your decision.
Ms. Luxenburg is not facing an infringement lawsuit, and the Watercolors Society is not a court of law. The ultimate decision with regard to her prize should not be perverted into a copyright law analysis. For the art community to analyze it as a legal question not only passes the buck on the community’s responsibility as its own arbiter, but it also leads to more airplay for copyright urban myths. Most dangerously, hiding behind copyright law concepts to advance an agenda for one art form or medium can provide fodder for the gatekeepers of content in other media where appropriation is more accepted, and in contexts where is it more legally acceptable. Just as an author’s alleged plagiarism (as opposed to infringement) should be judged by his or her peers, this particular art community must also make its own judgments on acceptable appropriation based on its own standards and ethics, not on legal ground.