Eliminating fear and loathing of fair use
Fair use exists to allow scholars, educators, researchers, and more to use copyrighted works without permission or paying royalties.Furthermore, fair use is one of my favorite topics to discuss regarding ethics in graphic design, because its status as a grey area leads to some of the most interesting conversations in the field. Unfortunately this same status has also caused anger and conflict in the design world, legal and otherwise.People crave rules—they want to know definitively if they can or can’t use something. I once gave a presentation on ethics in graphic design which included questions from the audience about whether or not specific artwork could be used. When it was done, I overheard a member of the audience grumbling loudly as they left because I wasn’t able to provide them with a simple yes or no about the use of an image. In this case, and others, the answer is almost always, “it depends...” (Of course, I am not a lawyer and can’t offer legal advice.) Then there is the can of worms that is opened when discussing cases like the Richard Prince/Patrick Cariou copyright case—this never fails to start a firestorm of controversy.The fair use doctrine has developed through a substantial number of court decisions over the years. When evaluating whether or not the use is fair, there are four factors that are considered:
- What is the character of the use?
- What is the nature of the use?
- How much of the work will you use?
- What effect will it have on the market for the original?
As you can imagine, the answers to the questions are almost never black and white. The size of the image reproduced, the amount used, the distribution, and how much it was changed, are just some of the questions that are asked. In fact, lawmakers have said that it’s intentionally a grey area in order to keep an open dialogue while evaluating if an image’s use was fair or not.A copyright owner has the legal right to restrict reproduction of a copyrighted work and to demand royalties when a copyrighted work is used. Penalties for unauthorized copyright can be substantial. With this in mind, it makes sense to have an idea about whether or not your use of copyrighted work is defensible. Subsequently, some find the whole business so unpleasant that they avoid it all together.The president of CAA (College Art Association) and others are concerned that fear of copyright infringement may be stopping people from creating innovative work that adds to our culture. A recent study showed that 1 in 5 Artists, 3 in 10 Museum staff, and 4 in 10 academics state that they avoid issues of fair use when making, researching, and exhibiting art.In “Fair Use at Work in the Visual Arts,” a video that they’ve produced to educate and inform artists, educators, and researchers about the topic, they state that when courts look at fair use cases they look primarily at two things: is the work transformative and is the amount of work is proportionate? If the answer to these two questions is affirmative, the track record shows that the work will most likely be considered fair use and non-infringing.CAA has created a code of best practices to help navigate these murky waters and to encourage scholars and artists to work freely and uninhibited.How about you? Are you feeling more confident about fair use and copyright, or more fearful?Sources:http://www.expertlaw.com/library/intellectual_property/fair_use.htmlhttp://cmsimpact.org/fair-use/best-practices/fair-use-visual-arts#CodeStarthttp://copyright.gov/fair-use/more-info.htmlhttps://www.youtube.com/watch?v=wC-wfVfIXiw
Moving the lines between copyright and fair use
Last month Richard Prince made history when the court ruling against him for copyright infringement against him was overturned.In 2008 Prince created a series of paintings, "Canal Zone," which incorporated the photographs of Patrick Cariou from his book Yes, Rasta. The work was shown at Gagosian Gallery in New York. In 2009 Cariou filed a copyright infringement case against Prince, Gagosian Gallery, Lawrence Gagosian, and Rizzoli Publications. In March 2011, Judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalog and unsold paintings from the series that use Cariou's photographs. Any collectors who own sold artwork were to be informed it would be illegal for them to publicly display the paintings.One of the key factors in determining fair use is whether or not the work is transformative. During the case Prince testified the the work “didn't really have a message.” Courtroom reports stated that the judge responded by assessing that for fair use to apply, a new work of art must be transformative—that it must “in some way comment on, relate to the historical context of, or critically refer back to the original work.”(1)After the 2009 court ruling Cariou stated, “This lawsuit is about arrogance, laziness and an overwhelming sense of power. It has nothing to do with art,” Cariou told Art in America, “At the end of the day, he took 41 pictures—it's not just one little part. It's almost half of the book. I really don't understand how he thought he could get away with it.”(2)Gagosian and Prince appealed the decision and the courts ruled last month that Batts’s interpretation was incorrect and that “the law does not require that a secondary use comment on the original artist or work, or popular culture,” but only that a reasonable observer find the work to be transformative.(3) In its decision the court wrote that Prince’s work conveyed an entirely different aesthetic and while Cariou’s photos depicted the natural beauty of Rastafarians and their environment, Prince’s work is jarring and provocative.This case is seen as a landmark. If the original ruling were not overturned, it could mean any artist who has copied, altered, or collaged other artists work could be found in violation of copyright. It could have affected artists like Andy Warhol and his images of Campbell Soup cans and Marilyn Monroe. Current and future implications for contemporary art and culture abound. As memes based off of copyright protected images, characters, or snippets from TV shower the internet, questions arise about the legal liabilities that their posters incur.Where do you think the lines fall between copyright infringement and fair use? Should the original ruling remain or were the courts right in overturning the decision? Does contemporary culture call for a change in copyright law and fair use?Notes/Sources:(1) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&(2) http://www.artinamericamagazine.com/news-opinion/news/2011-03-22/richard-prince-canal-zone-cariou-gagosian-lawsuit/(3) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&http://artherworldblog.wordpress.com/2012/06/25/internet-memes-and-copyright/http://www.forbes.com/sites/emmawoollacott/2013/05/03/warner-brothers-sued-for-infringing-cat-meme-copyright/http://petapixel.com/2013/04/26/appeals-court-overturns-previous-ruling-rules-fair-use-in-richard-prince-case/
Do We Need a Copyright & Fair Use Best Practices Document?
While issues about copyright and fair use are not new, our feelings about them may never have been more divisive than they are today. It's also highly unlikely that in today's work environment, graphic designers won't be faced with these issues on a daily basis. Graphic designers looking for art and images they can use are apt to encounter Creative Commons—a nonprofit organization that seeks to offer alternative solutions to traditional copyright. They are likely to see established artists (Shepard Fairey) and designers (Fly Communications, No Labels Logo) find themselves embroiled in legal cases and allegations about copyright violation. They will most certainly see social media sites like Pinterest (who many feel are stretching the boundaries of copyright protection) being embraced by respected and established organizations like Design Observer.In the midst of this turbulent climate, what's a graphic designer to do? How do they navigate these murky waters and stay up-to-date with current trends as well as maintain a level of professionalism? Designer Dawn Mercurio has offered a suggestion, a best practices document for graphic designers.Mercurio's MFA Thesis research includes surveys with over 100 creative professionals. As a result Mercurio states, “Contemporary creative professionals are split on how they side for the need to protect and license work. From data, it appears to be divided among those who work in traditional print environments verses those who work in multimedia and web. It may be that the ubiquity of the internet has created a leveling of ownership, an acceptance for sharing and a practice of mutual appropriation among those who build around it. And now with the ability of instantly viral content (impossible to fathom in the original rendering of the Constitution) it seems that protection has an even more difficult struggle than ever before.”Mercurio asked those surveyed how they would rate their understanding of copyright law and fair use. Most said they were familiar with it. A little over 15% chose “hazy," with the majority falling into the "somewhat knowledgeable" category. When participants were asked about the Shepard Fairey case and if the transformation from the original photo was enough to dismiss attribution, purchase, or permission, the results were almost evenly split. A trend in divisiveness and confusion about the issues was apparent throughout the survey. This is evident in the answer given by print and web designers, the largest segment of creative professionals polled, about how often copyright issues arise. They responded that copyright issues arise only occasionally, when handling the content and art of others is endemic to design fields.Mercurio concludes, “One solution to address these divides is to adopt a policy of Best Practices for Creative Professionals. Other industries such as Online Video, Media Literacy, even Dance have established their own doctrines and have built safer, healthier environments to work in without limiting creativity or message." She argues that, "a doctrine built by lawyers familiar with both copyright law and art along with a diverse group of creative professionals, could rule on the Fairey case along with other common practices such as using unlicensed images even as a ‘comp’, that many creative professionals abuse and should be advised on."What do you think, do you feel there's a need for a Best Practices Document?You can download Dawn Mercurio's findings including case studies and surveys here:https://dl.dropbox.com/u/
Was Shepard Fairey’s use fair?
Last week Shepard Fairey was sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. Some, including prosecutor Daniel Levy, felt Fairey should have served jail time. Levy contends, “A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct.”For those unfamiliar with the case, Fairey was sued by the Associated Press in 2009 for copyright infringement for using a photo by AP photographer Mannie Garcia. Fairey then filed a suit against the AP, contending that his use of the photo fell under the doctrine of fair use. The case got murky when it was discovered that Fairey lied about the original photo that he used as well as destroyed documents that were relevant to the case.Plagiarism Today lists the belief "Fair Use Will Protect Me" as one of the top myths about copyright. They go on to state that most people who claim fair use are misreading the law. Fair use is meant to balance free speech against the rights of the copyright holder. Fair use is an affirmative defense; you would have to prove it after you are sued. Fair use is not meant to protect you from a lawsuit, but rather from having to pay damages after it is over. (1)The definition of fair use is the copying of copyrighted material for a limited and transformative purpose; to comment upon, criticize, or parody. The term transformative is as ambiguous and vague as it seems, and it's done so intentionally. Like free speech, judges and lawmakers want an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism, or parody. (2)According to Stanford University Libraries, when assessing whether or not something falls under fair use, lawmakers use four factors:
1. the transformative factor: purpose and character of your use(have you created new meaning, was value added to the original?)
2. the nature of the copyrighted work(was the original work factual or fictional? typically you have more leeway if it's factual)
3. the amount and substantiality of the portion taken(in general, the less you take, the more likely you will be excused)
4. the effect of the use upon the potential market(does your new work deprive the copyright owner of income or a potential market for the original work?)
In Fairey's case the issue was eventually settled in a civil case without answering the question of whether or not his use of the AP photo constituted fair use under copyright law. The financial terms of their agreement were not disclosed and both parties agreed to share image usage rights for any posters or merchandise produced using the "Hope" image.Fairey may have been sentenced for his criminal activity involved with this case, however the question still remains, would his use of the AP photo have been fair if he hadn't lied and tampered with evidence?Notes:(1) http://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/(2) http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.htmlSources:http://www.latimes.com/entertainment/arts/culture/la-et-cm-shepard-fairey-20120908,0,6021274.storyhttp://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/http://www.huffingtonpost.com/2012/09/06/shepard-fairey-jail_n_1861680.htmlhttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
Is "Tomoko Is Bathed by Her Mother” fair use?
The difference between fair use and matters of integrity is not always crystal clear. Those involved in visual communication are often called upon to decide which takes precedence.One of the most powerful images of the twentieth century is W. Eugene Smith’s photo “Tomoko Is Bathed by Her Mother.” The image shows a child with a congenital disease caused by mercury pollution in Minamata, Japan.Although Tomoko’s parents originally gave permission for Smith to take the photo in 1971, after Tomoko died in 1977 they were upset by the continued use of the photo and asked that the image not be used. In 1998 Smith’s widow, holder of the copyright on the photo, complied with the parents’ wishes and forbid future use of the image. This impacted exhibitions of the “One Hundred Greatest Photographs of the Twentieth Century” and also was seen as a disservice by those who felt Tomoko’s image should be able to be used under “fair use” guidelines as it has helped in the fight against industrial pollution.Do you think the original image should still be in circulation under fair use guidelines or should the wishes of the family take precedence as Aileen Smith decided it should?PLEASE NOTE: Permission to use the image discussed in this case study, “Tomoko Is Bathed by Her Mother,” was respectfully denied. The image can be seen online here. The image below is from the same series and reproduced with permission from Aileen Smith.
"Hope" Poster - Fair Use or Copyright Infringment?
One of the most celebrated works of campaign art in American history, Shepard Fairey’s “Hope” poster, was added to the collection of the National Portrait Gallery in Washington. The poster has also been the focus of a copyright-infringement lawsuit between Shepard Fairey and the Associated Press.In early February 2009, the Associated Press determined that the photograph used in the poster is an AP photo and that its use required permission. At the time of the Associated Press’ original allegations, Shepard Fairey’s attorney stated that the use of the image is “fair use” and thus protected by copyright law. A few days later Fairey filed a suit against the Associated Press, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.In his February 9, 2009 Complaint for a declaratory judgment against the AP , Fairey claimed to have used an AP photograph of George Clooney sitting next to then-Senator Barack Obama as the source of the “Hope” posters. However, as the AP alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of then- Senator Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did and that he at least had to crop it.In October 2009, Fairey admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions. In early 2010, it was disclosed in court that Fairey is under criminal investigation after he said he erred about which AP photo he used as a basis for “Hope.” He acknowledged that he had submitted false images and deleted other images to conceal his actions.
As of April 2010, lawyers for artist Shepard Fairey were ordered to disclose the identities of anyone who deleted or destroyed records related to a copyright dispute over the Barack Obama “Hope” image. Fairey’s image has had an undeniable cultural impact. His red-white-and-blue poster of Obama with the word “Hope” at the bottom (pictured) has spurred an ongoing parade of parody images featuring everyone from Sarah Palin (“Nope”) to Heath Ledger (“Joke”).Paste magazine’s easy-to-use, web-based Obamicon generator—one of many online tools that make it easy to modify an picture to look like Fairey’s poster—has reportedly created more than 500,000 of these images.What do you think? Is the Obama "Hope" poster an example of fair use or copyright infringement?SOURCES:http://www.ap.org/iprights/fairey.htmlhttp://www.wired.com/underwire/2009/02/copyfight-erupt/http://www.copyright.gov/