Fair Use Doctrine

By Ren Bail

   It is important for artists or writers to know exactly how far they can go when 'borrowing' from someone else's works. It is also important for artists and writers to know what, exactly, is protected from being copied, and what isn't.

What is the Fair Use Doctrine?

   Developed by judges in the 19th century, the notion of fair use was formally incorporated into the American 1976 Copyright Law (section 107). Specifically:

the fair use of a copyrighted work... for purposes such as criticism, news reporting, teaching... scholarship, or research, is not an infringment of a copyright. In determining whether the the use made of a work in any particluar case is a fair use, the factors to be considered include:

1) the purpose and character of fair use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

What is Protected?

   First, I must clarify what is protected under copyright law, and make an important distinction between an artist's/writer's work and the ideas behind that work. Copyright law only protects the expression of an idea, not an idea itself.

   Therefore, while Artist B may not copy a work by Artist A, Artist B may certainly be inspired by Artist A's work. Artist B is also allowed to incorporatethose concepts--in his or her own fashion-- into new works. Under copyright law, Artist A can make no complaint if Artist B 'steals' ideas and incorporates them, but if Artist B not only takes ideas but the expression of an idea, then Artist A has a case. The 'taking' doesn't have to be literal--meaning, the work doesn't have to be a perfect match. However, it has to be close enough that if the two images were held up in court (or, in most cases, before Thomas), the judge (or Thomas) looking at them could believe one was copied from the other, not merely inspired by the other.

Interpretation of the Fair Use Doctrine

   1) Copying and using a work for commercial purposes is more likely to be judged a copyright infringment than copying and using the same work for noncommercial purposes, such as a mural in your home.

   2) Under this criterion, the more creative a work is, the greater it is protected. If the work is very fact-based or informative, it is less protected. As far as art goes (And I would assume things like completely made up worlds or poetry), this criteria will almost always go against a finding of fair use, because of the innately creative nature of art (and creative writing).

   3) Not only the amount of coying, but the quality can be a significant factor. If you copy a small portion of someone's work, but that portion is a key element in both or either works, your actions are unlikely to be considered fair use.

   4) This one is mostly related to money making, and I know many Elfwoodites aren't selling their art- but some (including yours truly) are. This criterion is the one that the courts look at most. For instance, if there are two artists dealing in the same marketplace--say, eBay-- of limited-edition prints, and the popularity of the print with the copied image will diminish the value or marketablility of the original print, fair use will most likely not be found.

Some common mistakes made by artists regarding fair use

   Fair use won't take credit. Even if you give credit as to what and who you copied from, it is not allowable. An attribution itself doesn't prevent a work from being a copyright infringment, in the nature of the borrowing doesn't otherwise satisfy fair use criteria. If you -really- want to copy- GET WRITTEN PERMISSION!

   Watch who you thumb your nose at! Parody is usually considered fair use; however, if the creator of the work being satirized isn't amused, you might be taken to court. (Ouch!)

   Imitation, the sincerest form of flattery? It might be, but this argument won't get you off the hook for copying another artist's work. Again, if you want to copy and display it anywhere public- GET WRITTEN PERMISSION!

What about collages?

   Artistic collage is a complicated legal issue with respect to the owners of the original art that makes up the collage. Section 103(a) of the Copyright Act provides that a copyright covers all 'derivitive works'. A deriviative work is defined as 'a work based on one or more pre-existing works, such as a(n)... art reproduction or any other form in which a work may be recast, transformed, or adapted.' While a collage is certainly artwork that has been recast, transformed, or adapted, it isn't derivative for copyright purposes unless it copies substansially from a prior work. A collage that consists of small pieces of someone else's work that aren't recognizable probably wouldn't legally infringe anyone's copyright. On the other hand, a work with large portions of someone else's work that are easily recognisable within it could pose a legal problem. If the latter is the case, I reccomend getting permission from the creator and/or copyright holder of the recognisable pieces going into a collage. If you can't get the permission-- then sorry, no dice. You can't legally display it publicly!    It backs up Thomas's views on fan art, for one thing. With the Internet, copied art, even if it isn't making any money, can very well detract from the market of the original, in the view of the person/business making money off of it. It may sound rather silly, the idea of any big name cracking down on a kid or bunch of kids for copying an image, but sillier things have happened, and businesses tend to be rather, ah, tight-arsed when it comes to their profit margins.

   For another, it sets precedent for Thomas's policy of not allowing people to put up works copied from another Elfwoodite's (yes, it HAS happened), or any other artist/writer, for that matter. Copying someone's art/writings also can take away from the original artist's market--either comments on Elfwood or actual commissions. In other words- if you want to draw someone's character, copy a picture, or use a character in a writing- you must get written permission before you put it anywhere public.

   It disallows most collages, since the collages that have so far been put up by Elfwoodites and then subsequentially taken down by Thomas used important pieces of other's artwork. Using the main figure of one of Vallejo's artworks in a collage is strictly forbidden- it violates the fair use law.

   Finally, it provides recourse for those Elfwoodites who have had their artwork/writings copied by someone else (again, it has--and does-- happen). If you can provide proof you did the original, you can legally have the piece that has been copied taken down .

Information for this article was gathered from the October 1992 and Febuary 1995 issues of The Artist's Magazine.

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