Common Questions about Copyright and Fair Use

Questions about using the creative work of other artists in your own work. Generally speaking, an artist should always get permission, directly from the copyright holder or his agent, to use another artist's work. However, a creative work is sometimes in the "public domain" or the purpose for copying may be a "fair use".

Fair Use, what does this term mean?

It is important to understand that fair use is a defense to a copyright infringement! In other words, you are still infringing the rights of a copyright holder by copying a creative work that is protected by copyright law. However, if the purpose for which the artwork is copied is considered a fair use (which in some cases may only be determined in court after extended litigation) you may overcome a claim of copyright infringement.

1. What is fair use and how does it apply to public domain works?

Fair use is a copyright doctrine that allows creators to use the work of others, without asking for permission, in a limited set of circumstance. Most of the permitted uses are justified as serving a socially desirable objective such as research or criticism. Unfortunately, there are no hard rules about when something is, or is not, a fair use.
Public domain works are works whose copyright has ended or which were never protected by copyright law. Using these works never violates copyright law; thus, a creator need not worry about fair use for a public domain work. It is important to remember, however, that even though a public domain work might not be covered by copyright law, its use might still be limited by trademark law or the right of publicity.

2. Is it considered fair use if the copied material has an acknowledgment of the copyright owner?

Attribution or acknowledgment of the copyright owner in inself will not make something a fair use! However, it may be important when considered with other factors. An acknowledgment of the original creator makes it clear that the user is not trying to pass off the copyrighted work as his or her own work. If it is clear that the user is not trying to pass of the copyrighted work as his or her own work, an attribution of acknowledgment is not necessary. The copyright owner might only be concerned about receiving credit; but then again, the copyright owner may want monetary damages for copyright infringement.

3. Does a fair use defense exist if I use a different medium than the original work?

Changing the medium will not by itself make something a fair use. For example, making a trivia book based on a television series is not a fair use. Changing the medium might be important, however, when other factors lean towards a fair use.

4. If a trademark is used in a work, is this considered a fair use?

This depends on how the trademark is used. A definite answer cannot be given without looking at the individual work. In general, if the trademark is used in a creative work and it is not being used to identify the manufacturer or creator of a product, and is not used in such a way as to confuse the purchaser into thinking that the product has been created by the trademark owner, the use would not infringe the trademark and would be permissible. There are times when what might otherwise be an infringing use can be a fair use under trademark law.
Example: A painting of New York Times Square showing, among other things, the famous advertisement with the Coca Cola Logo would not infringe on the Coca Cola trademark if it is used as part of the -actual- background scenery.

5. If a copyrighted photograph is included in my photo montage, is this considered fair use?

In general it would not be a fair use. There may be times when it would be. For example, if only a small portion of the photo was used, and the photo montage commented on the picture, it might be a fair use. However, no definitive answer can be given without looking at the work.

6. Is using a copyrighted image in my company's logo a fair use?

No! You can not use a copyrighted image in your company logo without permission from the copyright holder.

7. What if I don not sell the artwork and just trade it or display it to the public?

This won't change the fair use analysis.

8. Can I use a quote from a copyrighted work as a caption for my painting or photograph?

You can't use the quote unless the painting or photograph is a direct comment on the quote. It would not be enough to simply comment on the general subject of the quote.

9. Can I distribute copyrighted materials to my students without paying or notifying the copyright holder?

In general, you can not! This holds true even if you are working for a non-profit institution. There are, however, circumstances where it would be a fair use. For example, it may be a fair use to distribute a copy of a newspaper article from a newspaper sold on the day of distribution even though it might not be a fair use to distribute the article six months later. A definitive answer is not possible without knowing the specific facts.

10. Can I integrate a quotation from a copyrighted work into my song lyrics?

Probably not. There are several copyright cases which say this is a violation. It might, however, be a fair use if the new song was commenting on the copyrighted song. For example, it was okay for 2 Live Crew to use several lines from O Pretty Woman by Roy Orbison in their song Pretty Woman because it commented on Orbison's vision of love and sex as set out in O Pretty Woman.

11. Is it fair use if I am not selling a copyrighted work but just use it as an advertisement of a different product?

No. This would infringe the copyright of the work you used.

12. Do I need to get permission from the copyright holder if I want to parody a song, sculpture or other type of art work?

You may not need permission as it can be a fair use to use a work in a parody. But remember, copyright law says a parody must mock the copied work, not merely the style or period of the work. It is therefore not a parody within the meaning of copyright law to use a copyrighted photograph of Clint Eastwood if all you want to do is comment on movie stars of the 1980s. If, however, you want to parody the particular way that Clint Eastwood is depicted in a particular photograph, it would be a fair use to parody that photograph.

13.How close to the original work can my parodying work be?

There is no definite answer to this question. The answer depends on a number of factors which are weighed together and it is not possible to set out a complete set of factors. The list is evolving over time. One important factor is how much of the original work needs to be copied so that someone looking at the parody would be able to figure out which work is parodied. A parody of a song might therefore permissibly copy the most famous section. A second factor of importance is whether the parody might replace a sale of the original. Thus, it would not be a fair use if someone made an exact copy of a giclée of a painting in order to comment on the content or the concept. This is because someone who couldn't afford the original painting or the giclée, might instead purchase the commentary copy and ignore the comment.

14. If I take a photograph that includes copyrighted material, such as a T-shirt or a building, do I have a fair use defense if I sell that photograph?

First, there is a special exception in the copyright statute which lets you photograph a building which can be seen from public space without violating the architect's copyright. This exception does not include artwork in a plaza in front of the building. Second, the answer to whether the appearance of copyrighted objects in a photograph is fair use depends on how they are related to the picture. If it's just an incidental and minor portion of a picture and the copyrighted work wasn't in the picture because as a deliberate plan of the photographer, it's likely to be a fair use. Thus, for example, a news photo of parade in which one of the hundreds of people shown is wearing a T-shirt with a copyrighted design will not infringe the copyright of the T-shirt design.

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