I am pleased to introduce the second installment of Art Space Law. Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York), has once again offered his time and knowledge to answer a question involving art law and the Internet.
Brian Sherwin: Gary , artists are often concerned about people 'stealing' or 'ripping' their art online. The main concern is that someone will still a digital image of an original work and alter it with a program in order to call the altered work their own. The rumor mill tends to turn... which leads to debate over what percentage of a digital image of an original work must be altered before it is considered an original work of art-- some people say 35%, others 75%... %'s get thrown about with no sources to back them. My question... is it true that an image, a jpg of one of my paintings for example, can be considered an original work of art if a specific percent of the jpg image of my original painting is altered digitally by someone using a program like photoshop? This is a HUGE concern for artists who display their work online. I'm asked questions like this often... perhaps you can give us the details?
Gary Schuster: That question touches on a number of interesting subjects. First there is the issue of copyright infringement. Contrary to urban legend, there is no particular percentage which needs to be reached in order to permit a finding of infringement. Generally the tests are (i) was there access to the first work, (ii) was there copying, and (iii) was the copying substantial? What is substantial? Unfortunately there is no very satisfying answer to this question. There is actually a book of more than 500 pages on just that subject, called "Substantial Similarity in Copyright Law." One can only examine a number of individual cases to get a feel for when someone has gone too far. Generally it means that the infringer copied a substantial portion of the original work. It doesn’t have to be literal, word-for-word copying. The "total concept and feel" of a work can also be protected by copyright. This is one of those areas where it comes down to "I know it when I see it." One thing that can be said with certainty is that substantial similarity is a question of fact rather than a question of law. The jury will determine whether the two works are substantially similar.
A second concept is that of derivative works. A derivative work is, quite simply, one work that is derived from another. So, for example, a film is derived from a novel. A musical is derived from a film. One of the exclusive rights that a copyright owner has is the exclusive right to prepare derivative works, and authorize others to. If you own the copyright in a painting you have the right to prevent others from creating other works, derived from your painting, without your consent. The scenario you describe about a digital artist modifying your image seems to fit squarely within this description. Since that digital artist created a work derived from yours without permission, I don’t have the slightest hesitation calling him a copyright infringer.
However...there are also the concepts of appropriation art and transformation. Some artists take newspaper articles, product packaging, postcards and all sorts of found objects, including the artwork of others, and assemble them as their own work of art. The found objects are frequently the subjects of copyrights owned by someone else. The found objects might also be trademarks, or the name and likeness of celebrities, both of which are also personal property like copyrights. The work is called appropriation art because the artist "appropriates" the property of someone else and puts it in their artwork. Appropriation art is an increasingly common type of art, and without doubt it can be very creative. I suppose it is advances in technology which have made it possible. However, it clearly bumps into the exclusive right to prepare derivative works and the rights in trademark and name and likeness.
I must also mention another concept in this area, and that is the First Amendment. Because of the First Amendment there are exceptions to the usual rights of ownership of copyright, trademark and name and likeness. This carve-out is known as "fair use". In short, if your work of appropriation art has sufficient First Amendment implications, you may have the "fair use" right to use a copyright, trademark or name and likeness without obtaining permission. This can be illustrated by comparing two actual cases.
In the first, an artist named Gary Saderup made a simple pencil portrait of The Three Stooges and sold t-shirts printed with the drawing. The agent of The Three Stooges sued and the artist lost. In another case an artist name Rick Rush painted Tiger Woods winning one of his early championships. In the background were portraits of some of golf’s greatest champions over many decades and the word "Leaders". The idea was that Woods was a historic golfer and was joining the company of these great champions. Thousands of posters of this painting were printed and sold. Tiger Woods didn’t give permission, didn’t get a penny, and he sued. Unlike the agent for The Three Stooges, he lost.
Tiger Woods lost because the painting was considered to be visual journalism, history and commentary. These First Amendment considerations trumped his right to control the use of his image. You could also say that Rick Rush "transformed" Woods’ image and made something more of it. Gary Saderup, on the other hand, did not transform their images into anything grander or more meaningful. He just copied them. So one work of appropriation art had First Amendment implications and was transforming and the other was not.
To be precise, fair use comes into play when a work is copied for purposes of criticism, comment, news reporting, teaching, scholarship, and research. The right is not absolute. As in so many areas, there is a balancing test to be done. So for example, even though a school is teaching, it cannot make multiple copies of a textbook for its students and claim fair use. It must buy copies from the publisher.
There is one final point to make. Copyright infringement requires making copies. An original work of art is not a copy. You can paint a portrait of Tiger Woods (even one that is not transformative) without his consent because you are making an original painting and there are no copies. If you print and distribute posters derived from your painting then you are making copies and you do need permission. Unless you can claim fair use! All very interesting. Unfortunately there are still no bright lines to guide artists in their work. I still think that the artist in your example is infringing.
The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.
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