Have you
ever felt that you have gotten so inspired by an artwork or written work or a
tune that you end up creating something strikingly similar to the original? If
so, do you know when your original is still a tribute and when you end up being
a copycat? In this series of posts, we shall discuss each of these
individually.
In this
post we shall discuss the dilemma of an artwork and photographs of when it
turns into a copy work and when it is truly a tribute to someone.
When
someone works on an already pre existing work, which may be from one or
multiple sources, it is deemed derivative work. Examples of derivative work
includes translation, musical arrangement, dramatization, fictious,
motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast, transformed, or
adapted. For example, a movie inspired by a novel comes under derivative works.
In the case of photography, 2 photographers taking pictures
of the same visual or location is not a copyright infringement. If a famous
photographer for example takes the picture of a sunset and someone captures the
sunset at the same time and location, it is not a copyright infringement. However
photographs taken of an original work (like stills of an original concept photo
shoot) which is used to recreate something strikingly similar would be deemed
copyright infringement.
This can be illustrated in the case of Horgan v. MacMillan, Inc., 789 F.2d 157 (2d
Cir. 1986) a book containing a series of still photographs of performers
dancing a copyrighted choreographic work (Balanchine’s Nutcracker ballet) can
be an infringing derivative work if there is “substantial similarity,” even
though it is not possible to reconstruct the ballet from the photographs alone,
and even if permission for the book was secured from the ballet company, the
set and costume designers, and the dancers but not from the choreographer the copyright
owner.
If there is a
photograph of a copyrighted artwork like a sculpture or painting, and it is
used for profit or mass scale without permission (example The U.S. Postal
Service (USPS) licensed the use of a photograph of the Korean War veterans’
memorial sculpture for a postage stamp, but failed to obtain permission from
the sculptor who held copyright in the underlying three-dimensional work.) is
not fair use.
Taking an already existing photograph and doing certain
changes on the original and claiming it as your own is not fair use and would
be copyright infringement (Cariou vs. Prince), however making a painting using
a photograph as inspiration would be fair use.
From a artists point of view, if an artist works for hire to
create original work of art, it is usually deemed that they have been paid the remuneration
for the artwork on the whole (which includes the copyright), and therefore he
cannot make profits from further resale of the product. Using an artwork like a
poster as a backdrop of a movie without prior permission of the artist is not
fair use.
It is okay to copy another person's painting, as long as you
give them credit and don't try to pass it off as your own. Even if you change
some things, as long as it is recognizable as someone else's original you cannot
claim it as your own. A common way of giving credit would be to say
"Painted by (your name) after (artist's name) or to say "Based on a
painting by (artist's name).
Search engines
practice of creating thumbnails of the original works of art is deemed fair
use.
Museum reproductions, whose purpose is to duplicate the
original work as precisely as possible (like for example in the case of art
students), do not involve enough originality to be copyrighted as a derivative
work. In other words, a museum reproduction of fine art in the public domain is
itself public domain, and unauthorized duplication of the reproduction is not
copyright infringement but if you create confusion about the origin by copying
an artist’s work and selling it as their creation rather than your own, it an
infringement of copyright.
To sum it up artists should always know the difference
between fair use and infringement. Often clients want upcoming artists to copy
artworks of famous artists, and therefore an artist should be aware of their
boundaries. It is always recommended to add your own style while doing an
artwork and sign your own name on the same.
