How to Incorporate Copyrighted Material Into Your Artwork
Use of Copyrighted Material In Artwork
The incorporation and parody of copyrighted material is a staple of modern art. Through dissection or elaboration of existing material many artists provide new meaning to preexisting works. The defense of “Fair Use” to a claim of Copyright Infringement is a legal recognition of this practice.
Some explanation of the legal jargon is necessary before we proceed. The defense of fair use is broken up into four “factors.” Factors are essentially tests the court uses to weigh whether a work of art is in fact a “fair use” of the previous material. Through careful planning you can convey your artistic message while stacking these factors in your favor. Finally, this article is applicable to works of “parody.” A parody must comment on the underlying work that is used. For example, if you wanted to comment on the Disney Corporation you could incorporate an image of Mickey Mouse. However, you could not use the similar cartoons to comment on a current event, such as the latest celebrity trial because it would be a “parody” of the trial, not the Disney Corporation.
1. Transform the Purpose and Character of the original work
This factor considers whether you plan on profiting from your artwork. Also, a court will determine whether your art is “transformative.” In other words, does your artwork add something new that alters the first with a different purpose or message? Courts consider this to be the most important factor in the fair use analysis. Further, the more transformative your work is, the less the other factors will matter in the analysis.
If your artwork was created for a non-commercial purpose such as charity or personal use then courts tend to weigh this factor in your favor. However, if you plan on selling or licensing your work in any fashion, courts require you to show that your work is “transformative.”
In order for your work to be considered “transformative” your art must “reasonably be perceived as commenting on the original or criticizing it, to some degree.” Tom Forsythe’s “Baked Barbies” photograph is a perfect example of this principle (not to mention it passed muster with the 9th circuit court)
This photograph depicts a number of naked Barbie Dolls roasting in an oven. This provocative image is an obvious attack on Barbie’s influence on gender stereotypes. The court agreed, finding that Forsythe’s use of lighting, background, and props presents the viewer with a different association and context than normally occupies the iconic figure.
When crafting your piece keep Baked Barbies in mind. Forsythe’s work obviously is a criticism of Mattel’s Barbie. This transparent message allowed Forsythe to use the entirety of Mattel’s doll in his work. However, your work does not need to be as blatant as a Barbie Casserole. The flip side is that if you want to create a more nuanced criticism, you may have to incorporate less of the underlying work.
Strategies that have worked in the past: Present the material in a context it normally would not appear. Add heavily to the underlying material. Clearly identify your message or comment. Record the message you intend to convey through the parody. Remember that your piece must intend to parody the underlying work, not another work or issue.
2. Is the Work you are Using Artistic?
This factor examines whether the underlying work is “close to the core of intended copyright protection”? In other words, is the underlying work something that traditionally would be protected by copyright? Things that are traditionally protected by copyright include music, art, literature, and cinema. This is a difficult factor to win because usually artists will incorporate other artistic expression into their work. Luckily, this factor holds the least amount of weight.
Strategies that have worked in the past: Incorporate material that would normally not receive copyright protection.
3. Use Only the Amount Necessary to Identify and Parody the Underlying Work
Your art must be allowed to borrow enough from the original work in order to identify it as the subject of your parody. Any excess amount that is copied and that is not necessary for identification of the original, is up to the court’s discretion depending on the purpose of your work. In other words, if the purpose of your work is clearly to criticize the underlying image, you may be allowed to copy more. For example, if you wanted to comment on the greed of the Disney Corporation, you would likely be allowed to illustrate Mickey Mouse as he appears in a Disney cartoon and add your own expression to the illustration. However, if you wanted to comment on the greed of America in general, you may not be allowed to copy Mickey Mouse verbatim as he appears in a Disney cartoon. Although Mickey Mouse is arguably a symbol of capitalism, your parody does not take direct aim at Mickey or the Disney Corporation.
Strategies that have worked in the past: Avoid direct copying of any image. Re-illustrate the image in your own style and context. Add a lot of your own expression to the image.
4. Create a Distinctive Market For Your Artwork
This final factor evaluates your artwork’s effect on the “potential market value” of the original work. In other words, does your art provide a potential alternative to the original work? Luckily, if your criticism is clear, courts tend not to consider such works a threat to the market value of the original.
Let us use Mickey again for an explanation. Say Disney releases an art print of Mickey Mouse. You want to comment on the Disney Corporation by using Mickey’s image from the print in your artwork. You incorporate the image of Mickey with a nuclear bomb explosion in the background and dollar signs in place of Mickey’s eyes. A person who wants to purchase the heartwarming print of Mickey Mouse would likely not purchase your intensely anti-Disney print instead, due to the drastic differences in the images. However, if you simply took the image of Mickey and changed the background color, a person who sought to buy the original Mickey print may see your art as an alternative if they preferred your background choice to the original print.
Also, if you are using copyrighted images from a different medium your work may not affect the value of the original. For example, if you wanted to make an illustration from the lyrics of a popular song, courts may not find that your artwork will hurt the market value for the song. The song and your art fulfill two very different consumer needs.
These are just a few general guidelines to consider when incorporating copyrighted material into your artwork. You should always consult a lawyer that is experienced in copyright law when producing this type of work. Finally, it never hurts to ask the copyright holder for permission. Although the Disney Corporation may not allow you to depict a decapitated version of their favorite rodent, many copyright holders are artists themselves and happy to help the cause.