Repurposing Art: A Look At Fair Use (& Fictions)

Repurposing art is a real temptation for professional crafters, visual artists, and Etsy-sellers alike. What some call mere inspiration, others consider copying. Where's the line between the two? Below are some of the rules at play for repurposing art, or using elements of creative works owned by someone else in a new creative work, and some common misconceptions when it comes to fair use.

Important note: As with all blog posts, this post should be considered educational, not legal advice. Do not take action or decline to act based on this post, as fair use determinations are highly fact-intenstive. It is always best to consult an attorney regarding a specific legal issue.

The Fiction: Myths Surrounding the Use of Another's Work

First, a look at common misconceptions often repeated by creative clients:

Myth: If I don't accept money for it, or give it away for free, it's not copyright infringement.

• Unless there's a signed contract that states otherwise, only the copyright owner has certain rights when it comes to his or her work. The right to sell is only one of those rights. Unauthorized copying, distributing, displaying, could also amount to copyright infringement.

Myth: If  I change my work by [20, 30, 60] percent, it's not copyright infringement.

• There is no hard-and-fast "percentage" rule when it comes to infringement. What matters is whether a "substantial similarity" exists between the prior work and the secondary work.

Myth: If I don't intend to copy the work, it's not copyright infringement.

• No. An intent to copy, or "willful infringement," can certainly get you into more trouble in terms of money damages owed, but copyright infringement is essentially a "strict liability" offense, meaning you can be on the hook even if you didn't intend to infringe or copy. 

Myth: If I credit the original author/artist for his or her work, he/she can't or won't sue for copyright infringement.

• False. On the contrary, listing someone's name could create liability for other causes of action -- misappropriation of someone's right of publicity, or false endorsement or sponsorship, example.

Myth: The worst that can happen is that the original artist sends me a cease and desist letter; then I'll take my art down.

• Though it's a common first step, there is no requirement by law that a copyright owner first send a cease-and-desist letter prior to filing a lawsuit.

Why are these assumptions considered to be myths? Because each one of them is just that -- a common (and untrue)  myth that has no foundation in copyright law.

The Fair Use Test, Or Why The Myths Are Myths

What is the doctrine of "Fair Use"? It is a test. The courts use the factors outlined in this test to determine whether one artist's use of another artist's work constitutes a) copyright infringement, or b) an excusable, non-infringing (or "fair") use. Put differently, the Fair Use Doctrine excuses what would otherwise be copyright infringement. Oftentimes there is no clear answer as to whether a court would consider use of another's work as fair use. In such cases, when in doubt, it is always best to get a license from the owner of the original work.

The main factors a court considers in determining whether the use of another's art constitutes fair use are as follows:

1. The "purpose and character" of the use;
   • This factor takes into account whether the use is of a commercial nature (which works against a finding of fair use) or is for purposes of scholarship, news reporting, criticism, or commentary (which work in favor of a fair use finding).
2. The nature of the original copyrighted work;
   • Is the original work fictional or nonfiction? Published or unpublished? The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.
3. The amount and substantiality of the original work used in relation to the entire work as a whole;
   • Compare: One sentence taken from a work that is five sentences long, versus one paragraph taken from a work that is five hundred pages long. That's what this factor refers to.
4. The effect of the use upon the potential market for or value of the copyrighted work.
   • Are you usurping a business opportunity from the original owner by using his or her material without paying a license fee?

Is your head spinning yet? Well, the answer to whether use of another's work in a subsequent work constitutes copyright infringement depends on a balance of these factors. The problem is, the factors are not necessarily given equal weight, and the test is highly fact-intensive.

Thus, because of the unpredictability of a court's application of the Fair Use test, it is almost always best to get permission before using another's copyrighted work.