Can I Use Someone Elses Art if I Am Not Profiting From It?

Legalities 5: Some Questions About Fair Apply

Tin I show my piece of work in my portfolio even if someone else owns the copyright? Is information technology rubber to use copyrighted works in my collages? These questions illustrate ii disparate applications of the copyright doctrine called "fair use."

What is fair use? As a general rule, if you use a copyrighted piece of work without the copyright possessor's permission, you will be liable for copyright infringement. "Fair employ" is a limited exception to this rule for sure kinds of use. The most well-known examples of off-white apply are parody and news reporting, but many other types of use could qualify. The copyright statute sets along four factors for courts to consider in determining whether a detail unauthorized use qualifies as fair use:

(ane)   the purpose and character of the utilise, including whether you've made a new transformative work, and whether your utilize is commercial
(2)   the nature of the original piece of work, such equally whether information technology is more factual than fictional
(3)   how much of the original work was used
(4)   whether the new use affects the potential marketplace for the original piece of work

While courts are supposed to consider all of these factors, depending upon the particular piece of work and the particular blazon of use involved, some factors may be given much more weight than others. Equally this month's questions demonstrate, in some circumstances fair use is relatively easy to determine, and sometimes it'south not.

Q. I am Senior Designer at a small, publishing company in San Francisco, where I design all in-house advertising materials for clients and sponsors. I realize that the rights to all work I consummate on the job belong to my employer, and in some cases the clients that hire united states of america for services. But information technology is it okay to use some these pieces in my portfolio? and more specifically, my online portfolio site? What about designs I completed at previous employment sites (ad agencies, etc.)? Would it be adequate to use some of the designs as examples of previous work when applying as an independent contractor for a temp agency?

A. This is a relatively piece of cake question. Near copyright lawyers, myself included, believe that reproducing your own work in your portfolio (whether in impress or online) is fair use, regardless of who owns the copyright. Equally a practical thing, showing your work in your portfolio is a common and accepted practice in the blueprint field, and the copyright owners rarely object.

The most persuasive fair utilize factors in this situation are (one) the purpose and character of your use, and (4) the effect on the potential market for the original piece of work. The "purpose and character" of portfolio usage is to accurately document your work and thereby promote your services as a commercial artist. It could be argued that self-promotion is "commercial" apply because your ultimate goal is to generate more illustration assignments. Still, that is not the type of profit-making that weighs confronting fair utilize. You would non be making coin directly from reselling the portfolio piece; rather you would be paid for the new illustration that yous create for the new assignment.

Factor (4), the effect on the potential market for the original work, further supports the non-commercial nature of portfolio use. Showing your work in your portfolio does non compete with your employer's or its clients' marketplace equally the copyright owner of the work. They however take exclusive rights to control use of the work in the publishing market, or to promote sales of goods and services.

The remaining two factors are substantially neutral in this situation. Factor 2, whether the work is more than artistic or factual, doesn't really matter because you are showing your ain artwork. Factor 3, how much of the original piece of work was copied, is evaluated by asking whether the amount copied was reasonable in relation to the purpose of the new use. In this case, the purpose of portfolio usage is to accurately certificate your work, so showing the entire work is reasonable.

That beingness said, there may be some circumstances when portfolio use could be a problem. For example, your employer may want public credit for the work itself, and thus may object to your alien online disclosure that y'all created it. Showing the piece of work privately to other prospective clients may be of less business organisation. The U.s.a. Post has an infamous policy of not allowing artists to show any works created for the post office, even works that ultimately were non published. The safest practice is to explicitly address this issue in your agreements with your employer or clients, or check with them before you include the works in your portfolio.

Q. Last Christmas I was feeling crafty. I designed a series of Christmas cards that were sent to friends and family. I accept also posted the designs on my portfolio website. I created the cards using scraps of wrapping paper we had at the firm. Using pocket-size illustrations on scraps of wrapping newspaper, I pasted the scraps to pieces of cardboard, then mounted each cardboard piece to card stock for a raised pattern. A friend recently asked if I was selling the cards. I don't know if my designs are legal — did I steal someone else's work by using the wrapping newspaper? Or is the employ considered acceptable because I used only portions of the wrapping paper to create a dissimilar piece of work? What are the laws governing this?

A. This is a difficult question. Collage is a time-honored art course that utilizes pre-existing materials, including artwork and photographs. Often the materials will be copyrighted. So your unauthorized use of those materials would exist copyright infringement unless your collage qualifies as off-white utilise. Unfortunately, there is no legal rule on whether collage as a category would be fair employ. It volition depend in each case on an evaluation of the four fair apply factors with respect to the particular collage.

For most collages, factor (one), purpose and character of the use, will be the key factor. Typical collages, those that use many unlike materials juxtaposed in means that create new visuals and meanings, will exist considered transformative works. A work is "transformative" when the copyrighted fabric is "transformed in the creation of new information, new aesthetics, new insights and agreement." In contrast, a work is non transformative if it merely uses the copyrighted material in the same manner or with the same consequence as the original piece of work. For case, in one recent case, the defendant published "thought books" for scrapbooking. Some of the sample scrapbook pages used the plaintiff's stickers combined with other decorative materials. The courtroom plant that this was not transformative. The stickers were used in the defendant's books "to create a pictorial representation in which the stickers would not lose their individual identities." Also, the plaintiff itself marketed the stickers for scrapbook use and published its own idea books, which too used the stickers as role of decorative collages.

Another aspect of factor (i) is whether the new work is commercial. "Commercial" does not merely mean that you brand money from your piece of work. Mostly, works of fine art are not considered commercial even if they sell for hundreds of thousands of dollars. Courts are more than likely to consider artwork commercial if information technology is sold as decoration on merchandise, such as mugs, trivets or t-shirts. In that case it looks more than like you lot are using the artwork to sell consumer merchandise, rather than selling the artwork itself. However, the courts are not consistent in this arroyo. Some courts have held that sales of fine art prints are commercial. Others take found that sales of merchandise by museum gift shops are not commercial.

Under gene (2), the nature of the original work, the courts would look at whether the copyrighted cloth you've used in the collage is more than factual or newsworthy in nature, rather than highly creative. At that place is more elbowroom to utilise materials like news photographs, for example, than a highly stylized illustration. News photographs are usually included because of the factual content of the photo rather than to exploit the artistic authorship protected by the copyright. In your example, the wrapping paper would fall on the other stop of this calibration. The wrapping newspaper design is a purely creative form of fine art, and your collage is using information technology to exploit that aesthetic issue.
Under factor (3), the court will look at how much of the original work was used in your collage. For about collages, this factor should weigh in favor of fair apply. However, information technology could exist problematic if the main focus of your collage is one copyrighted work, eastward.g., a key image to which a decorative border has been added, or if the collage uses the entire work rather than just a portion. For example, a contempo case considered a "collage" comprised only of a distinctive photograph reproduced in its entirety with an added humorous caption. The court causeless (without directly addressing the copyright merits), that the collage would have violated the photographer's copyright if the lensman had complied with certain copyright procedures. In the sticker example, the defendant too reproduced the sticker images in their entirety. In your example, given the repeat nature of wrapping paper art, you lot may have used the unabridged work.

Finally, courts will consider factor (4), whether the new use affects the potential market for the original piece of work. For nearly collages, this gene will counterbalance in favor of fair use, because your artwork will not be displacing the market for the original materials. For example, suppose a collage uses an editorial photograph from a magazine. Using that collage on greeting cards probably would not compete with the licensing marketplace for the photograph. In your instance, however, the wrapping paper company would accept a expert argument that greeting cards are inside its own potential marketplace for its wrapping newspaper art.
While all of these factors should be considered, the courts are clear that whether the new work is transformative is the most of import. The more transformative a work is, the less significant the other factors will be. Indeed, works have been held to be off-white utilize even when all three other factors technically weigh against information technology.

To summarize, collages that have more of the following characteristics are more than likely to authorize as fair utilize:

• the collage incorporates many different materials from many different sources
• the materials are juxtaposed or arranged in means that create new visual and conceptual effects, the more than unlike from the effect of the original materials, the amend
• the collage does non feature a copyrighted work as the fundamental focus or dominant image
• only portions of copyrighted materials are used, rather than the unabridged paradigm
• the collage is a ane-of-a-kind piece of fine art, or published in a limited edition of fine art prints

An example of transformative collage.
© 2003 Barbara Margolies.
All Rights Reserved. (Click To Overstate)

One final annotation: in addition to copyright, collage artists should also be aware of potential trademark rights that might be associated with their raw materials. Trademarks are brand names or other symbols that represent the commercial source of products or services. Sometimes visual images tin be trademarks, such as Mickey Mouse or the Marlboro cowboys. If you apply these in your collages, at that place may exist some gamble of trademark infringement. Yet, trademark constabulary also has exceptions for non-competitive uses. While the assay is non technically the aforementioned, by and large it is similar to the copyright concept of fair apply. Such uses are the most safety when they are the most transformative, and unlikely to compete with the trademark owner'south market.

– – – – –
You lot are invited to send in questions for consideration in upcoming Legalities columns. Please send your questions to legalities@owe.com.

– – – – –
Legalities is a service marking of Linda Joy Kattwinkel. © 2004 Linda Joy Kattwinkel. All Rights Reserved. Ms. Kattwinkel is a one-time graphic artist who currently enjoys personal oil painting. She practices intellectual property law, arts constabulary, arbitration and mediation equally a member of Owen, Wickersham and Erickson in San Francisco. The data in this column is provided to help you get familiar with legal issues that may affect graphic artists. Legal communication must exist tailored to the specific circumstances of each case, and naught provided here should be used as a substitute for advice of legal counsel. A good resource for finding counsel is the lawyer referral service of California Lawyers for the Arts (SF role: 415-775-7200). Linda Joy Kattwinkel can be reached at 415-882-3200 or ljk@owe.com.

See the alphabetize of previous columns for more answers to your questions.

rollintille1992.blogspot.com

Source: https://www.owe.com/resources/legalities/5-some-questions-about-fair-use/

Share this post