Can You Protect your Art in the Digital Age? Copyright and Fair Use

September 18, 2019

 

There has been a major change in how we think about image ownership. Reproducing, combining, and disseminating images without obtaining permission from the maker is an issue that all artists face and highlighted by the current legal battle between Des Moines artist Chris Williams and the supermarket chain Hy-Vee over using his artwork as a background in a national advertising campaign without recognition or compensation.

 

This article will discuss the basics of copyright law and how it applies to artists and crafters. There are always two questions concerning copyright: 1) how to I protect my artwork and 2) when am I able to incorporate someone else’s work without permission.

 

Copyright legally belongs to the artist from the moment of creation. You do NOT need to register the work with the US Copyright Office in order to obtain a copyright. But, if you ever have to prove when your art was copyrighted, registering with the US Copyright Office is convincing evidence. It has been noted by copyright experts that utilizing video as part of the registering process helps convince judges and juries of the arts originality.

 

The heart of the Chris Williams lawsuit is over the question of who can use public art and for what purposes. One aspect of Williams’ suit alleges misappropriation of the mural and that his signature and Instagram contact information were removed from advertising materials. He is seeking damages for claims including “alteration and removal of copyright management information under the Digital Millennium Copyright Act.

 

Williams told Artnet News “I think I need to clarify that it’s okay to take selfies in front of murals but it’s not okay for corporations to reproduce art for commercial purposes . I thought this was very apparent but some people are very confused by this. I don’t think people are seeing the big picture here. My art and creative energy gets diminished when it’s made into a corporate backdrop this is not my goal as an artist and not something I want to participate in.”

 

While Copyright protects against unauthorized use by others, it is subject to a number of exceptions designed to assure space for future creativity. Of these, Fair Use is the most important and most flexible. Fair Use makes certain exceptions that allow the use of copyrighted materials without that use being considered an infringement. To decide whether something is fair use is not easy and several subjective factors need to be considered: 

  • Purpose of the work

  • Nature of the work

  • How much of the others work is used

  • Effect on the market

There is help for deciding what is Fair Use and what is copyright infringement – the College Art Association has developed the Code of Best Practices in Fair Use for the Visual Arts

 

There are a number of famous cases to help illustrate how the Fair Use doctrine has been applied. Jeff Koons, a popular culture artist is a great example of the struggle that the courts have with what is "transformative use." He has been sued several times for copyright infrigment over his use of pre-exiting images and the original works of others. 

 

 

One leading case on copyright infringement using a fair use defense for parody is Rogers v. Koons filed in 1989. Art Rogers, a professional photographer sued Koons and the Sonnabend Gallery for selling a sculpture of his photograph "Puppies".  Koons argued that the transformation from a two dimensional image to a three-dimensional sculpture was completed with the intention to parody and thus, it qualified as fair use.

 

The court found the images too close and that the average lay person would recognize the copy (a measure of evaluation). Thus the sculpture was found to be a copy of the work by Rogers. On the issue of fair use, the court rejected the parody argument, as Koons could have constructed his parody of that general type of art without copying Rogers' specific work. That is, Koons was not commenting on Rogers' work specifically, and so his copying of that work did not fall under the fair use exception.

 

 

In 2016 another infringement lawsuit was filed against Jeff Koons. This time, Koons prevailed: his work was found to be fair use. In Blanch v. Koons, fashion photographer Andrea Blanch sued Koons for his copying of part of her photograph, “Silk Sandals by Gucci” in his painting called “Niagara. Koons cropped and re-oriented the photo, before including it in a painted collage among other pairs of women’s legs.

 

The courts focused on the first fair use factor: “the purpose and character” of Koons’ work. This time, Koons did not argue that his painting “Niagara” was parody. Rather, he argued that the purpose and character of the work was “transformative.” The Court of Appeals also characterized the use of Blanch’s photography as reasonable, given that the purpose of Koons’ collage was to offer a critique of media and advertising culture.

 

These famous cases both encompassed a larger issue in the art world, the issue of appropriation art and the challenges of sharing work through social media and print.  How much control do you have once the image has been utilized without your permission? The next article in this series is how to protect your work in the digital age.

 

Please note that this article is NOT legal advice, the author is an artist and festival director with an interest in best practices. Please consult an attorney if you have a copyright violation case.

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