Introduction to Fair Use: The Tension Between Artists’ Rights and Free Expression
Art is either plagiarism or revolution.
But in the “fair use” context, it’s probably fair to say that art is either plagiarism or commentary.
Since art began, it has been a source of inspiration, comment, and criticism of social values and ideals. Artists have used literature, paintings, and music, as mediums to carry their message to the masses. To make people think, grow, and change. Art acts as a channel into the mind of an artist and captures his or her particular expression of beauty, harmony, and the spectrum of human emotions. In many ways, art is language, and has the power to spread ideas across time, borders, and cultures.
However, as a practical matter, art is also how many artists make their living.
Copyright aims to protect artists by giving them the exclusive rights in their works. This keeps people from making copies of a photographer’s work and selling it; it keeps musicians from ripping off another musician’s song; it keeps playwrights in business by allowing them to charge people for a license to perform their play. In short, copyright makes the life of an artist viable. The argument being, that if copyright didn’t exists, we would have significantly less artists and thus, significantly less artistic expression.
The Problem with Copyright
While it may not be completely obvious, there are many times where artistic expression may be stifled by copyright, limiting the artist’s ability to comment on societal issues. I’ll illustrate with an example:
This is Barbie. While we may not ordinarily consider this a piece of art “per se,” it’s art nonetheless. It’s a sculptural work of a girl, which took artistic expression to create. Copyright serves to protect others from coming along and recreating a Barbie doll or using the image in other settings. However as a work of art, Barbie also expresses certain ideas of beauty, feminism, and other aspects of gender roles. As such, it has become an icon in our society, and thus ripe for social commentary and criticism.
Now, these are images from “Food Chain Barbie,” a series of photographs done by photographer Tom Forsythe:
Coming to a store near you.
On their face, they infringe Barbie’s copyright protection. They are unauthorized copies of a Barbie doll. However, Forsythe claims that these images are his artistic expression – a critique on society’s objectification of women, and Barbie’s false notions of beauty.
So hopefully you can see the inherent tension here between an artists ability to make meaningful comments and criticisms and a copyright owners right to control their work. While we don’t want artists making money from stealing or plagiarizing someone else’s art work, we want art to be able to do what it does best: convey important and profound messages that capture society in ways that other mediums cannot.
The Copyright Solution
In creating the Copyright Act, Congress was well aware of this tension. So in section 107 of the copyright act, they created an exception to copyright infringement known as “fair use.”
The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.
How do courts determine whether something is “fair use?” Courts looks at the four factors listed below:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
For more information about how to use these four factors, check out our article on How to Incorporate Copyrighted Material Into Your Artwork.
Here’s a few final suggestions for anyone out there looking to incorporate an existing work into their own:
1. Use the Mantra
Art is either plagiarism or revolution. Check out the Barbie example above. Are you using the work to make your work look or sound better? Or are you using the work to make a comment or critique of an aspect of society? If you find yourself using someones work just because it makes yours more interesting, you’re probably not falling within the scope that the “fair use” exception was intended to protect. But, if your purpose is create a comment or critique of that work or the ideals it embodies, now we’re on the right track.
2. Look at the four factors of fair use
Run through the four factors. Check out our article on How to Incorporate Copyrighted Material Into Your Artwork, or do an internet search for tons of material on the topic.
3. Ask a Lawyer
Finally, if you have any doubts, TALK TO A LAWYER. This area of law can be particularly difficult to navigate, and that’s what lawyers are for. I would check with a lawyer before making any potentially expensive mistakes (and I do mean expensive).
The purpose of this article was to demonstrate the tensions and policy considerations that are inherent in the world of art. It’s important that artists be able to freely express themselves and have the ability to comment and criticize other works, thoughts, and ideas. Art is important, not just because it looks or sounds great, but because it has the power to impact society and give birth to new generations with new thoughts and ideas.