Can you do that? A treatise on copyright, fair use, and social commentary

by Dorothy Raymond (SAQA Journal)

This article was originally printed in the SAQA Journal 2021 | No. 1.

This article is for general informational purposes and does not constitute legal advice. Neither SAQA nor the author accepts any liability or responsibility for the information contained herein. If you have specific legal questions, please consult an attorney.

News headlines and images can make us cringe or celebrate. They also can provide the perfect vehicles to express outrage or joy in an art quilt.

What’s more, today’s technology affords many ways to incorporate images and texts into our art. But along with the ability to use others’ efforts to make our own statements, there rests the responsibility to avoid copyright infringements. There is no easy, formulaic answer to avoid making a mistake, but if we are thoughtful about our message, we can reduce the risk of infringement.

In brief, unless you have permission from the creator, or incorporate orks that are clearly in the public domain, you must understand and follow the legal doctrines of fair use or fair dealing.

Fair use (in the United States), or fair dealing (in the common-law jurisdictions of Australia, Canada, New Zealand, and the UK), allows some use of copyrighted material by artists. Other jurisdictions are stricter about enforcing the original artist’s rights. For example, the European Union allows caricature, parody, pastiche, incidental inclusion in other materials, or quotations for criticism or review, but the author and source must be named.

Fair dealing allows use for review, satire, and parody. So the British artist Banksy can sell prints depicting a black-and-white image of two characters from a famous American movie, if the characters are holding yellow bananas rather than guns, as they were in the film Pulp Fiction.

While fair use in the United States gives an artist more freedom to use others’ work, there still is no formula that provides a definitive answer of whether a specific instance constitutes fair use or infringement. A court looks at fair use on a case-by-case basis, examining the specific facts and evaluating four factors:

  • Purpose and character of the use, including whether the use is commercial or educational.
  • Nature of the copyrighted work (how much creative expression is involved).
  • Amount and substantiality of the portion used (not just how much was used, but whether it was the “heart” of the work).
  • Effect of the use on the market for the copied work.

Since a court only looks at factors to determine whether infringement has occurred, there is always some risk that the factors will be viewed differently and the copyright holder will make an infringement claim. When an infringement claim ends up in court, the initial decision often is reversed, which is another indication
that the law is not clear cut.

Some artists don’t want any risk, especially if their art is being exhibited, while others self-censor by not taking advantage of fair use, the legal doctrine that promotes freedom of expression and innovation.

If you are passionate about the message you want your art to convey, there are ways to intelligently approach the concept of fair use. The U.S. Copyright Office has a video explaining the factors in fair use.

There are also several online tools and checklists to help you make a decision on whether you are engaging in fair use of materials. Two valuable online resources are the University of Minnesota and Columbia University.

A key concept to determine fair use is whether your work is “transformative” of the original source. “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work,” explains the U.S. Copyright Office. Parody, satire, and commentary are usually obvious in their transformations of the original work.

Artistic transformation is less obvious. What are the things an artist can do to “transform” a photo or text? Here is where it pays to be thoughtful. There must be new artistic expression, more than printing the image on fabric, changing the color, or adding stitching. Mixing up different elements of different photographers’ landscape photos to create your own arrangement of mountains and trees is probably not transformative, because the artistic meaning is the same. However, if you generate a new artistic meaning by using a portion of an image and then combine it with other images, you’re more likely to be transformative.

Because artistic meaning is subjective, if you create social commentary it is much easier to create new meaning. Your artist’s statement can help make a new meaning clear to the viewer. Also, documenting your creative processes in a journal or on social media can support your goal to transform the original work(s).

Two court cases illustrate what is and is not transformative. Adding a guitar and a mask to someone else’s photo was transformative social commentary, as decided in Cariou v. Prince 714 F.3d 694 (2d Cir. 2013).

But adding bright colors and different backdrops to a photo of a punk rocker added no new meaning or value, and so was not transformative fair use, as determined in Morris v. Guetta, (No. LA CV12-0684 JAK (RZX) (C.D. Cal. Feb. 4, 2013)). The artists in both cases considered themselves “appropriation artists,” but in the second instance, the artist’s transformation was merely artistic and not social commentary.

It is possible that the case involving artist Shepard Fairey, who based his political poster Hope on an Associated Press image of Barack Obama, has unduly deterred artists from making social commentary pieces. That case was settled, but later cases have used logic to indicate that the use of the photo would be more likely to be found to be transformative, according to Elizabeth Townsend Gard, author of Just Wanna Create: Copyright & Fair Use Strategies, 2020.

The use of text can also be transformative in your social commentary art, as long as you include no more than what is necessary to make your statement. If you copy the heart of the work, that action could be seen as a substitute for the original, and thus be an infringement.

Fair use of trademarks in your art is also allowed. The key to remember is that trademarks are different from copyrights. A copyright protects the original expression. A trademark identifies the origins of goods or services. Artists can use trademarks—either logos such as the Nike swoosh or slogans such as “Just Do It”—if the trademark is relevant to the underlying work and does not explicitly mislead viewers about the source of the work. Depicting a trademark in a disparaging or defamatory way, however, creates some risk of infringement.

There is also risk if your art quilt could be confused with the trademark owner’s merchandise licensing program. An art quilt based a photo of a famous museum, where the museum sells merchandise using its image, carries risk. That type of use could be confusing to a purchaser and therefore evidence for a finding of infringement. If there is no confusion as to who made the goods or performed the services, there is no trademark infringement.

There are some easy areas where there’s no risk of infringement. Getting permission is the clearest way to solve the infringement issue if you’re not sure your use is transformative. Other risk-free possibilities include using images and text that are copyright-free, such as government documents. The Bible, the United States Constitution, the Charter of Fundamental Rights of the European Union, and the Magna Carta are all examples of works that are in the public domain. Other works are in the public domain because their copyright has expired. In the United States, the copyrights on all works published before January 1, 1926, have expired.

Calculating when a copyright expires in the U.S. on works created on or after January 1, 1926, is tricky,and works like this:

  • The copyright duration for works created between 1922 and 1977 is 28 years plus 67 years, if renewed. By adding 28 and 67, you see that if a work’s copyright has expired if it was published at least 95 years ago. So, works published before January 1, 1926, can be used without permission.
  • For works copyrighted after that date, but before 1964 (the last date for mandatory renewal), the copyright has expired unless it was renewed. You have to search the U.S. Copyright Office to find out a work’s status. Works made after 1964 are automatically renewed.
  • A copyright created after 1977 expires 70 years after the author’s death.
  • Copyright terms in the U.S. are calculated on a calendar year basis. The copyright expiration for all copyrights is always December 31.

Some works can be used freely because the owner of the copyright has dedicated it to the public. Dedicating a work to the public is rare; it has to be explicitly stated—just because the copyright symbol is missing doesn’t mean it is in the public domain. There are also collections of copyrighted images that can be used royalty-free, and images that are copyright free. Images created by the United States government are copyright-free. NASA photos from space are copyright-free. Some images in the U.S. Library of Congress are also copyright-free. People also publish copyright-free clip art for use in cutting or embroidery machines.

You can probably use titles, names, short phrases, and slogans because they cannot be copyrighted. The rationale is that because they are so short, they don’t have enough creative expression necessary to establish a copyrighted work. In other words, you can’t copyright the words “Just Do it” because there are so few alternative ways to say it. But, as we saw above, a short phrase can be trademarked.

Lyrics to songs are copyrighted, unlike their titles. I can create a Paint it Black art quilt, and incorporate the title Paint it Black as text, but I cannot include words from the lyrics of this song by The Rolling Stones unless my art quilt creates new meaning—that is, it is transformative for the words.

You can also use the actual physical copy of a magazine, book, or photo that you have purchased in your art. This is the first sale doctrine, and it allows you to buy a newspaper, cut out an article, and affix it to your art. This does not give you the right to make copies (no photo transfers onto fabric); it gives you the right to use the hysical item that you’ve purchased.

It is easy to see that copyright rules can be tricky. But if you have a message you want to convey, don’t completely dismiss the idea of incorporating photos or text in your art quilt. Instead, make every effort to clearly and thoughtfully use such elements to create new meaning.  

Online Copyright Resources
Columbia University: 
Copyright Fair Use Checklist

U.S. Copyright Office
 

Dorothy Raymond, a SAQA Juried Artist from Loveland, Colorado, is a retired attorney who has had a lifelong love affair with fabric.

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