Are Paper Designs Copyright When Used to Make New Art

Legalities 5: Some Questions Near Fair Use

Can I show my work in my portfolio even if someone else owns the copyright? Is information technology safe to apply copyrighted works in my collages? These questions illustrate two disparate applications of the copyright doctrine chosen "fair use."

What is fair use? As a full general rule, if you lot use a copyrighted piece of work without the copyright owner'due south permission, yous volition exist liable for copyright infringement. "Fair use" is a limited exception to this rule for certain kinds of use. The most well-known examples of fair utilise are parody and news reporting, but many other types of utilise could qualify. The copyright statute sets forth 4 factors for courts to consider in determining whether a particular unauthorized apply qualifies as fair use:

(1)   the purpose and graphic symbol of the use, including whether y'all've made a new transformative piece of work, and whether your apply is commercial
(2)   the nature of the original work, such as whether information technology is more factual than fictional
(3)   how much of the original work was used
(4)   whether the new utilize affects the potential market for the original work

While courts are supposed to consider all of these factors, depending upon the particular piece of work and the particular type of use involved, some factors may exist given much more weight than others. As this month's questions demonstrate, in some circumstances fair utilize is relatively easy to determine, and sometimes it's not.

Q. I am Senior Designer at a small, publishing company in San Francisco, where I pattern all in-firm advertising materials for clients and sponsors. I realize that the rights to all work I complete on the task belong to my employer, and in some cases the clients that hire us for services. Merely it is information technology okay to use some these pieces in my portfolio? and more specifically, my online portfolio site? What nigh designs I completed at previous employment sites (advertizement agencies, etc.)? Would it be adequate to apply some of the designs every bit examples of previous work when applying as an independent contractor for a temp agency?

A. This is a relatively piece of cake question. Virtually copyright lawyers, myself included, believe that reproducing your ain work in your portfolio (whether in print or online) is fair use, regardless of who owns the copyright. As a applied thing, showing your piece of work in your portfolio is a common and accepted practice in the blueprint field, and the copyright owners rarely object.

The most persuasive off-white use factors in this state of affairs are (1) the purpose and character of your use, and (4) the upshot on the potential marketplace for the original work. The "purpose and grapheme" of portfolio usage is to accurately document your work and thereby promote your services every bit a commercial artist. Information technology could be argued that self-promotion is "commercial" utilise because your ultimate goal is to generate more than illustration assignments. Nonetheless, that is not the type of profit-making that weighs against fair use. You would not be making money directly from reselling the portfolio piece; rather you would be paid for the new illustration that you create for the new consignment.

Factor (4), the outcome on the potential market for the original piece of work, farther supports the non-commercial nature of portfolio apply. Showing your work in your portfolio does non compete with your employer's or its clients' marketplace as the copyright owner of the piece of work. They nevertheless take sectional rights to control use of the work in the publishing market, or to promote sales of goods and services.

The remaining two factors are essentially neutral in this situation. Factor 2, whether the piece of work is more than creative or factual, doesn't really matter considering you are showing your ain artwork. Gene three, how much of the original piece of work was copied, is evaluated by asking whether the amount copied was reasonable in relation to the purpose of the new apply. In this case, the purpose of portfolio usage is to accurately document your piece of work, and then showing the entire work is reasonable.

That being said, in that location may exist some circumstances when portfolio apply could be a problem. For example, your employer may want public credit for the work itself, and thus may object to your alien online disclosure that you created information technology. Showing the piece of work privately to other prospective clients may exist of less concern. The US Postal Service has an infamous policy of not assuasive artists to show whatsoever works created for the post office, even works that ultimately were not published. The safest exercise is to explicitly address this issue in your agreements with your employer or clients, or check with them before you lot include the works in your portfolio.

Q. Last Christmas I was feeling crafty. I designed a series of Christmas cards that were sent to friends and family. I have too posted the designs on my portfolio website. I created the cards using scraps of wrapping newspaper we had at the house. Using minor illustrations on scraps of wrapping paper, I pasted the scraps to pieces of paper-thin, then mounted each paper-thin piece to carte stock for a raised blueprint. A friend recently asked if I was selling the cards. I don't know if my designs are legal — did I steal someone else's work by using the wrapping paper? Or is the utilise considered acceptable because I used only portions of the wrapping newspaper to create a unlike piece of work? What are the laws governing this?

A. This is a difficult question. Collage is a time-honored art grade that utilizes pre-existing materials, including artwork and photographs. Often the materials will be copyrighted. So your unauthorized use of those materials would be copyright infringement unless your collage qualifies every bit fair use. Unfortunately, in that location is no legal rule on whether collage as a category would be fair use. It will depend in each case on an evaluation of the four fair employ factors with respect to the particular collage.

For most collages, factor (1), purpose and character of the utilize, will be the primal factor. Typical collages, those that use many unlike materials juxtaposed in ways that create new visuals and meanings, volition be considered transformative works. A work is "transformative" when the copyrighted material is "transformed in the creation of new information, new aesthetics, new insights and agreement." In dissimilarity, a piece of work is not transformative if it merely uses the copyrighted material in the same way or with the same issue equally the original work. For instance, in 1 contempo case, the defendant published "idea books" for scrapbooking. Some of the sample scrapbook pages used the plaintiff'due south stickers combined with other decorative materials. The courtroom found that this was not transformative. The stickers were used in the defendant's books "to create a pictorial representation in which the stickers would not lose their individual identities." Also, the plaintiff itself marketed the stickers for scrapbook apply and published its own thought books, which also used the stickers every bit part of decorative collages.

Some other aspect of cistron (i) is whether the new work is commercial. "Commercial" does not only mean that yous make money from your work. Mostly, works of fine art are not considered commercial fifty-fifty if they sell for hundreds of thousands of dollars. Courts are more probable to consider artwork commercial if it is sold as ornament on merchandise, such as mugs, trivets or t-shirts. In that example information technology looks more like you are using the artwork to sell consumer trade, rather than selling the artwork itself. However, the courts are non consistent in this approach. Some courts have held that sales of fine fine art prints are commercial. Others accept found that sales of merchandise by museum gift shops are not commercial.

Under cistron (2), the nature of the original work, the courts would await at whether the copyrighted fabric you've used in the collage is more than factual or newsworthy in nature, rather than highly creative. There is more elbowroom to use materials like news photographs, for example, than a highly stylized analogy. News photographs are ordinarily included because of the factual content of the photograph rather than to exploit the artistic authorship protected by the copyright. In your example, the wrapping paper would fall on the other end of this calibration. The wrapping paper design is a purely artistic form of fine art, and your collage is using it to exploit that aesthetic upshot.
Under factor (3), the court volition look at how much of the original work was used in your collage. For virtually collages, this factor should weigh in favor of off-white utilise. All the same, it could exist problematic if the main focus of your collage is ane copyrighted work, e.g., a central paradigm to which a decorative border has been added, or if the collage uses the entire work rather than but a portion. For instance, a recent case considered a "collage" comprised only of a distinctive photograph reproduced in its entirety with an added humorous caption. The court assumed (without directly addressing the copyright claim), that the collage would have violated the photographer'southward copyright if the photographer had complied with sure copyright procedures. In the sticker case, the accused also reproduced the sticker images in their entirety. In your case, given the repeat nature of wrapping paper art, you may have used the unabridged work.

Finally, courts volition consider cistron (4), whether the new use affects the potential market for the original piece of work. For most collages, this factor will weigh in favor of fair utilize, because your artwork will non be displacing the marketplace for the original materials. For example, suppose a collage uses an editorial photo from a magazine. Using that collage on greeting cards probably would not compete with the licensing market for the photograph. In your case, however, the wrapping paper company would accept a good argument that greeting cards are within its own potential market for its wrapping paper art.
While all of these factors should exist considered, the courts are articulate that whether the new work is transformative is the most important. The more transformative a piece of work is, the less significant the other factors will be. Indeed, works take been held to be fair use fifty-fifty when all three other factors technically counterbalance against it.

To summarize, collages that have more than of the following characteristics are more likely to authorize every bit off-white apply:

• the collage incorporates many different materials from many dissimilar sources
• the materials are juxtaposed or arranged in ways that create new visual and conceptual effects, the more than unlike from the upshot of the original materials, the better
• the collage does not characteristic a copyrighted piece of work as the central focus or ascendant paradigm
• only portions of copyrighted materials are used, rather than the entire image
• the collage is a one-of-a-kind piece of fine art, or published in a express edition of art prints

An example of transformative collage.
© 2003 Barbara Margolies.
All Rights Reserved. (Click To Enlarge)

One final note: in addition to copyright, collage artists should also be aware of potential trademark rights that might be associated with their raw materials. Trademarks are make names or other symbols that represent the commercial source of products or services. Sometimes visual images tin can be trademarks, such as Mickey Mouse or the Marlboro cowboys. If you lot employ these in your collages, there may be some risk of trademark infringement. However, trademark law too has exceptions for non-competitive uses. While the analysis is not technically the same, generally it is similar to the copyright concept of fair utilize. Such uses are the about safe when they are the most transformative, and unlikely to compete with the trademark possessor'due south market.

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You are invited to send in questions for consideration in upcoming Legalities columns. Delight send your questions to legalities@owe.com.

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Legalities is a service marker of Linda Joy Kattwinkel. © 2004 Linda Joy Kattwinkel. All Rights Reserved. Ms. Kattwinkel is a former graphic artist who currently enjoys personal oil painting. She practices intellectual belongings police, arts police, arbitration and mediation as a member of Owen, Wickersham and Erickson in San Francisco. The information in this column is provided to assistance y'all become familiar with legal issues that may touch on graphic artists. Legal advice must be tailored to the specific circumstances of each case, and zip provided hither should be used every bit a substitute for advice of legal counsel. A good resource for finding counsel is the lawyer referral service of California Lawyers for the Arts (SF office: 415-775-7200). Linda Joy Kattwinkel tin be reached at 415-882-3200 or ljk@owe.com.

Run across the index of previous columns for more answers to your questions.

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