media, and from other artists’ past or current work. Ideally, almost all clients will talk at length
with me about their current projects, as well as their ideas at the outset of their project. At
every step, whether the client asks me to or not, I am looking to see if there are possible
copyright infringements. One example is the artist or client who wants to take a famous photo
and paint it in a different manner or style. Many times when I discuss a possible infringement,
I hear back from my client that even if the aforementioned work is copyrighted, what they are
considering doing would be considered fair use.
What is fair use?
Section 107 of Chapter 1: Limitations on Exclusive Rights: Fair Use of Title 17 of the USC, states:
“…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.”
What needs to be understood is that courts all over the country have not settled on the exact application of the fair use factors. For examples, take a look through the case search service that the U.S. Copyright Office offers online which lists whether the court found fair use or not.
Well, I think it’s fair use, so I won’t get into legal trouble.
Fair use may apply, but the key question to ask yourself is: are you prepared to use fair use as a defense in court? This means that you don’t get to present your argument until after having to pay legal bills. Sure, you may receive a cease and desist letter and have your lawyer write back a letter on why fair use applies, but it does not mean that the other party or their lawyer agrees with your use and will not force you to defend that use in court. Always try and get permission for use of a copyrighted work or meet with an attorney to discuss the possible use.
by Devon Landis, Esq.www.devonlandislaw.com
Disclaimer: This is for informational purposes only and not exhaustive of all aspects of the law on this topic and it is not to be considered legal advice on any particular set of facts or circumstances, you should contact an attorney for advice on specific legal problems.