Articles

Copyrights 1: Respecting Other Artists’ Work

As creative professionals, artists are prime beneficiaries of copyright laws, which protect their rights to their creations.

Yet artists frequently violate the rights of other artists through lack of understanding of the laws. This can be a costly mistake for an artist: penalties for copyright infringement may include impounding of infringing materials, actual financial damages and profits, legal fees, and statutory penalties up to $150,000.

There are certain specific exceptions to copyright laws, called “fair use.” For example, you can copy portions of someone else’s work for news reporting, for educational purposes and scholarship, for review and commentary, and even for parody.

But what if you want to base your work on the work of another artist, or incorporate portions of someone else’s work in your own?

To understand what you, as an artist, can and cannot copy, let’s start with the basics. When someone produces a creative work, that work is automatically protected by copyright laws. No one can copy or reproduce the work without the permission of the original creator.

Contrary to what you may have heard:

• I’s not OK to copy things you “found on the Internet.”
• It doesn’t matter if there is a copyright notice on the original work.
• It doesn’t matter if you are making a profit on the copies.
• Giving credit to the creator doesn't make copying legal or OK.
• It’s not OK to copy, even if you can’t find or identify the original creator.
• It doesn’t matter how much or how little you copy.
• Changing the original work does not make it OK to copy.

The last two points are not entirely true, but they are safe rules to follow. You may have heard at some point that it’s OK to copy parts of another work, if you use less than a certain specific percentage, or change it more than a certain amount. There is no such percentage rule in the law.

In a copyright lawsuit, the court determines if the infringing work has copied the original creation. It’s impossible to create a clear and ironclad rule as to what constitutes a copy, so the courts frequently employ what is called the “reasonable person” standard. In other words, would a “reasonable person” say that the infringing work had copied the original work?

While there is clearly some point at which a new work is so transformative that it would no longer be considered a copy, court cases have ruled a work to be an infringement for copying just 300 words from and 80,000 word novel, or for copying just a single bar from a song.

In other words, there is no guaranteed safe and legal level of copying, and there is certainly no “10% rule.” It’s therefore generally best to simply not copy another work at all.

But there are a few cases when you can safely and legally copy existing artwork.

You can use a work if the copyright has expired. Unfortunately, due to various historic changes in copyright laws and treaty agreements between countries, it can be quite complicated to determine when the copyright on a work lapses. A useful table has been compiled by the Cornell Copyright Information Center, and is provided here under the Creative Commons license terms. [Click to Download.]

You can also use a work if it is in the public domain. Work may be in the public domain if the creator has explicitly surrendered their rights. Work produced by the United States government is automatically placed in the public domain.

Finally, the creator of a work can voluntarily make their work available for use under various license terms, such as the Creative Commons License mentioned above.

However, the overall thing that you as an artist should remember is that it is usually not legal for you to copy or use another artist’s work in your own.

In subsequent articles, we’ll discuss how you as an artist can protect your own work, and what you can do if someone else violates your copyrights.