This is a basic fact of life: there is no situation in which using someone else’s copyrighted work without permission is not copyright infringement. If you use someone else’s copyrighted material without permission, you can be sued for infringement.
However, there are three major defenses to a claim of copyright infringement that (if successfully argued in court) mean that a defendant—who acknowledges the use of copyrighted material—won’t be found guilty of infringement. Those defenses are fair use, parody, and educational use. Because educational use is a less common issue, and also widely misunderstood, and parody is probably not relevant to your crafting work, we will focus here on the question of how courts determine what is and isn’t fair use. Frankly, that’s tricky enough.
One mistake people often make is thinking that they can go ahead and use copyrighted material because their particular project is allowed by some magical concept of fair use.
Remember: courts determine whether or not a use is fair, not the person who’s infringing someone else’s copyright. Any use of copyrighted material without permission is infringement; it’s just a question of whether or not you can justify the use to a judge.
Credit Isn’t Enough
Some people mistakenly believe they can use a work (or a part of it) if they give credit to the original creator. For example, they believe it’s okay to use a photograph in a magazine as long as the name of the photographer is included, or long quotes as long as the source is cited.
This is not true.
Acknowledgment of the source material may be a consideration in a court’s fair use determination, but it will not protect against a claim of infringement. When in doubt as to the right to use or acknowledge a source, seek the permission of the copyright owner.
Copyright is established in the Constitution, and fair use is defined by federal statute (17 USC 107), which allows for the use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”
Courts have developed four factors to determine whether or not a particular use is fair under the statute. Those factors are:
- The purpose and character of the use
- The nature of the copyrighted work
- the amount and substantiality of the material used; and
- the effect of the use on the potential market for or value of the copyrighted work.
Let’s walk through those factors one at a time. Be warned, though: there may be only four factors, but like anything else in the law those factors often break down into multiple other elements, creating a kind of legal connect-the-dots that ensures a more thorough analysis (and also keeps intellectual property lawyers in business), so it may not be quite as simple as it looks.
Purpose and Character of the Use
The first factor is the purpose and character of the use. Courts will consider three different questions in order to determine the purpose and character. They are:
- Is the use commercial or nonprofit?
- Is there limited access to the work?
- Is the use transformative?
Commercial or Nonprofit?
Financial gain is not required for someone to be accused of copyright infringement. It really doesn’t matter if the infringer planned to get rich by selling copies of your work, or just planned to donate copies to a children’s charity. Infringement is infringement. An educational or scientific use that is for commercial purposes may still be excused by the fair use doctrine. And just because a use is not for profit won’t necessarily result in a finding of fair use: courts have made clear over and over again that the factors are weighed pretty much equally.
However, America is a capitalist country, and our laws reflect that economic model, so depriving a copyright holder of potential financial gain is always going to be a serious element of copyright infringement.
A commercial use will be looked at much more closely by a court than a non-commercial use, because US copyright law specifically protects the commercial interests of copyright holders.
The next element mostly focuses on the extent of exposure: How many people saw—or could have seen—the infringed work?
If the use involves private distribution (for instance, on a password-protected website or a one-time private gallery display) that factor will work in favor of a finding of fair use. On the other hand, if the use is widely published or distributed or broadcast, a court is likely to see more potential damage to the copyright holder.
And finally, a court will ask if the use is transformative. Whether or not a use is transformative is defined by two questions:
- Has the material taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and new understandings?
A use is transformative if it adds something new or different beyond simply tweaking or reproducing the original. Truly transformative works—works that build on and expand and add to a copyrighted work—are doing exactly what the drafters of the Constitution wanted to have happen. The general view is that that Constitutional goal is achieved by the creation of transformative works. That is, someone is moving science and the arts forward, based on the work of others who’ve come before them. The more the “new” work transforms the copyrighted one, the less important the other factors, like access or money, will be.
The Nature of the Copyrighted Work
Now we can move on to the second element in the fair use analysis: what is the nature of the copyrighted work. Courts will consider a number of issues:
Fact or Imagination
Factual works such as biographies or histories receive less protection from courts than fictional works such as plays or novels, because courts think it’s good that people know facts. So an original poem or short story would receive stronger copyright protections from the courts than a factual article on the causes of diabetes.
Published or Unpublished
An unpublished work will receive less protection from courts than a published work.
Creative or Non-Creative
Courts are more protective of creative works (art, poetry, film) than non-creative works. This is similar to the fact or imagination element. So a song, movie, or TV show will be more protected by courts than a phone directory or catalog.
Out of Print or Orphan Works
Obviously if a work is out of print or by an anonymous author, the use is more likely to be found to be fair.
Amount and Substantiality
“Amount” refers to how much of the work is copied; “substantiality” refers to how important the copied part is to the value of the original work. There is no specific rule about how much of a work may or may not be used, no “ten-percent rule,” that you may have heard about.
The court will weigh the following factors:
- length of original;
- the amount copied; and
- whether the copied content is a large part or a lot of little parts.
The less that is taken, the more likely that the copying will be excused as a fair use. However, even if a small portion of a work is taken, the copying will not be a fair use if the portion taken is the “heart” of the work. In other words, a defendant is more likely to run into problems if they copy the most memorable or important part of a work.
Finally, the court will consider effect that the infringement has on the work’s market. Depriving a creator of the right to financially benefit from their creative efforts is a serious consideration for courts. In fact, on more than one occasion the Supreme Court decision has referred to market effect as the most important of the four factors in making a determination of fair use.
The bottom line is, well, the bottom line: Depriving a copyright owner of income is very likely to trigger an infringement suit.
A Princely Portrait, for Example
The picture below, which is from the Collection of the Supreme Court of the United States, shows an example of a fair use dispute.
Left: Photo portrait of Prince, by photographer Lynn Goldsmith. Right: 16 portraits of Prince by Andy Warhol.
On the left is a 1981 photo of the musician Prince, by professional photographer Lynn Goldsmith. By 1984, Prince was a celebrity, and the magazine Vanity Fair commissioned Andy Warhol to do one of his Marilyn Monroe-style portraits for a feature article. They licensed Goldsmith’s photo (through an agency that handled such matters for her) to be provided to the artist as “inspiration.” But instead of making the one portrait he was commissioned to do, Warhol produced sixteen versions of a Prince portrait. One went to Vanity Fair under his contract, and the others were either sold to collectors or, after Warhol’s death, were displayed by his Foundation. When Prince died, Vanity Fair decided to do another feature about him, and in asking his Foundation for permission to re-use the 1984 work, discovered they had other choices available. They licensed one of the other works and displayed it on the magazine cover. That was how the photographer found out about the multiple works.
She sued the Warhol Foundation, and the Warhol Foundation asked the court to shut down the lawsuit by declaring that the works fell under fair use. The district court decided that the Warhol works were transformative enough, but the court of appeals decided they weren’t. This year, the US Supreme Court heard the case, and we’ll hear what they have to say next year. (The case is called Andy Warhol Foundation for the Visual Arts, Inc., v. Lynn Goldsmith. If you’re interested in reading a transcript of the Supreme Court arguments, you can find it here.)
What do you think? Are the sixteen works on the right different enough from the original to be transformative, and therefore covered by fair use? Or was Warhol simply straightening the photo and applying colors over it just not transformative enough? Are the sketches of the photo fair use or not?
Those questions will be answered by the Supreme Court next summer, but to me, the answer is mixed: the sketches are probably fair use because they literally transform a photo into a drawing. The other pieces, which simply layer colors over the photo, don’t seem to me to be enough of a transformation. But we’ll see. Whatever the Court decides may make it a little easier to figure out fair use.
Here’s a case that may provide a hint, though. In Roger v. Koons (Second Circuit, 1992), the court found that sculptor Jeff Koons had infringed on photographer Art Roger’s copyrighted photograph, shown below from court documents.
Left: Art Roger photograph. Right: Jeff Koons sculpture.
Even though the photo was materially “transformed” from a flat, black-and-white photo into a three-dimensional wooden sculpture painted in vibrant color, the court found that the transformation in this case was not fair use, writing:
“[Had Koons] simply used the idea presented by the photo [two people holding some puppies], there would not have been infringing copying. But here Koons used the identical expression of the idea that Rogers created; the composition, the poses, and the expressions were all incorporated into the sculpture…Moreover, no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.” [my emphasis]
As you can see, it’s not always easy to know whether or not a use is fair. As in most things, your best bet is always to be original and unique. If you’re inspired by a copyrighted work, whatever kind of work it is, make sure that your inspiration takes you in a clearly new and different direction, and that your own work is clearly distinct from its inspiration.
December 1, 2022: We’ve corrected an error in the first sentence under the heading Published or Unpublished.
Evan Butterfield is the author of Copyright for Creatives: A Comprehensive Guide to Copyright Law for Creative People Who Make Stuff. This unique book covers more than fifty specific creative activities as well as broader legal concepts important to creatives, and is available on Amazon. For over 30 years, Evan has been a lawyer, a publishing professional, and an educator, with an admittedly strange life-long fascination with copyright law. He lives in Las Vegas, Nevada with his husband and cat, and in addition to being an author and college instructor is a creative photographer and prop-maker. To learn more about Copyright for Creatives (and copyright generally), please visit www.copyrightforcreatives.com.