How to decide whether to hire a lawyer to review your art-business contract

The vast majority of contracts that I review involve intellectual property rights transactions. A common scenario will be a visual artist licensing rights in an image to be used on a product or an author licensing the publishing and related rights to their work to a book publisher.

Sometimes it's obvious when you need to get a lawyer involved. If you've got a high value commercial situation with an important work at stake, you'd be foolish not to spend the money on having a good lawyer assess the contract and advocate for you.

But what if the value of the contract isn't very high? Suppose a company wants you to license your work to them for a flat fee of $1,000, or suppose you're offered royalties but only expect to make a few hundred dollars from it? How do you approach deciding whether or not to have a lawyer look at a lower value contract?

Here are some things to consider:

Lawyers - what they do, how much they cost

A lawyer's hourly rate is generally going to fall between $200 and $500 an hour. Ideally you want a lawyer who is familiar with your area of business and has negotiated similar transactions so they're not dealing with a learning curve on how the business works or what the legal issues are.

Even if you find a lawyer who's familiar with the business and the applicable legal issues, she or he will still need to read through the entire proposed contract and consider a number of important things, for instance, are there any just outright bad terms in this contract, things they'd advise their client to treat as deal breakers? Is the money fair? Is the scope of the rights grant fair? Then, assuming those basic items are acceptable, how does this contract treat what happens when things go wrong? How does the artist get out of the contract if it turns out the licensing relationship isn't good?

Depending on the length and complexity of the contract, just reading through all the text and figuring out the above factors can easily take an hour or more.

Then the lawyer might want to consider, are there provisions left out of this contract that, if they were added, might make the licensing relationship run more smoothly? Are there tweaks to the proposed terms that could make the contract more favorable to the artist? The lawyer will need to think these things through and will likely have to draft new text, delete or modify existing text. This will of course take time.

Many lawyers work this way: They'll create a copy of the agreement in Microsoft Word and turn on "track changes." This will show any additions and deletions to the original text. It also allows for the insertion of comments that run along the side of the document on screen. This is called a "redline draft" or just "redline." As the lawyer reads the draft contract they'll add, delete, and comment, all of which gets captured in the redline. That initial redline draft gets reviewed by the client and there may be a phone call or further email discussion about certain points. Once the lawyer and client are on the same page about the proposed changes, the redline (without the lawyer's comments to the artist) gets shared with the proposed contract partner.

The proposed contract partner now reviews the redline and may accept, reject, or revise the changes, and may add new changes. Frequently the changes will need to be considered and discussed by the lawyer and client.

Eventually (in most cases) the two sides reach a final, acceptable form of agreement and the contract is signed.

But you can see how this process, even for a pretty simple contract, could take at least a few (1-3) hours and more likely several (3-6) hours. For a complicated, high value contract with a lot of back and forth and contested terms, 20 or more hours of back and forth is not uncommon.

For you to engage a lawyer to review and comment on a low value contract may cost you more than the contract is going to pay you.

What to do?

You have options.

Check for the worst only

One strategy for keeping costs down on a contract review is to focus only on making sure there's nothing in the contract that is super unfair or potentially harmful. I somewhat playfully call this "reviewing for Claymores" (a Claymore is a type of landmine—something you’ll take great pains to avoid!).

In a flat fee situation, a “Claymore” might be a complete transfer of all rights. In a royalty situation, a “Claymore” might be an agreement with no way to get out of it, such as an automatic renewal clause in favor of the licensee without any way for the artist to stop the automatic renewal.

If you ask your lawyer to look for just the really bad things, such as I've outlined above, you'd likely keep the review time down, lowering the cost and leaving more value to you, but also giving you the peace of mind you've checked for the worst.

Pay for a full review anyway

In some cases it might make sense to pay for a full review, even if it means you won't make much on the deal or even might have to pay the lawyer more than the contract's worth to you. You might, for instance, want to consider working closely with a lawyer—asking questions and really getting the matter explained to you—for the purpose of learning the issues and how to spot them yourself. In this case you'd be using the low value contract as a kind of teaching tool with the thought that you may be able to handle the next contract on your own.

It might also make sense to do a full review where the opportunity to work with this particular licensee could be really good for your brand, and so you want to let them use the work despite the low payment amount, but the work in question is important to you and you want to be sure that you retain the power to license and otherwise use it with others.


Having a lawyer assess the terms in a contract can give you a sense of whether the deal you’re looking at is fair and may help you avoid sticky situations down the road. A lawyer can also help you to better understand the types of terms you’ll find in contracts in your area of the art-business world. I hope this post will help you decide whether managing risk and gaining contract knowledge is worth the cost to you.

Also keep in mind that most lawyers—myself included—will offer a complimentary consultation to new clients. You can take advantage of this service to tell that lawyer what kind of contract you have for review, what your concerns are, what you think the potential value of the contract is, and let him/her know what you’re hoping to accomplish by hiring a lawyer.

by Chuck Cordes

Important notice: The information contained on the LOCC website is intended as general information only, aimed at familiarizing you with legal issues that may affect your art-based business. It is not a substitute for a one-on-one, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.

Quick and Easy Sourcing of Public Domain Text

Visual artists sometimes incorporate quotes into their work. Anytime you use somebody else’s words, you run the risk of stepping on their copyright. One excellent way to get around the need to obtain copyright permission is to use only quotes that are in the public domain.

What’s public domain?

Simply put, it’s content out there in the world that you can use without copyright restriction. Facts about the world are in the public domain. Ideas too. It’s a copyright truism that only the particular way an idea is expressed gets copyright protection, not the underlying concept.

A big part of the public domain consists of artworks—novels, poems, paintings, photographs, and the like—that were once under copyright but no longer are. Many of the greatest works ever created are in the public domain because their copyright expired. That means you’re free to use their content in any way you wish. And there are a lot of great public domain quotes to choose from. “A penny saved is a penny earned,” is public domain. Ben Franklin wrote that back in the 1700s. “A rose by any other name would smell as sweet,” is from Shakespeare’s “Romeo and Juliet,” likewise public domain.

A key thing about the public domain is that nobody’s in charge of deciding whether a particular work is in the public domain. The U.S. Copyright Office doesn’t keep a list of registered works whose copyright term is expired. If you want to know if a work’s no longer under copyright, you’ve got to figure it out by applying a set of rules. Otherwise, you might use a quote in your artwork, put copies of that artwork up for sale, and get a cease and desist letter from the copyright holder. So it’s better to know whether a quote is public domain before you’ve spent a bunch of time incorporating it into your work.

If you’re making a painting or other visual work that incorporates a quotation, and you intend to sell copies, you want to first ask yourself where you’re going to offer these copies for sale. If you’re only selling in the United States, then U.S. copyright law is what you need to look at. If you’re going to sell to other countries, then you’ll want to look at the rules in the particular countries you’re aiming at.

Figuring out how long a particular work is under copyright can get pretty complicated. But there are two handy rules that you can use to separate a big part of the public domain world for your use.

  1. If you’re selling copies in the United States only, then answer the following question:

    • Was the text you’d like to use published in the United States before 1923?

      • If so, it’s in the public domain.

  2. If you’re selling copies outside the United States, then answer these two questions:

    • Has the author been dead for more than 70 years?

    • Was the work published in the author’s lifetime?

      • If the answer to both questions is yes, it’s in the public domain.

These are simple rules meant to get you to freely usable content with a minimum of research. But know that there are a lot, really, a lot of works that are also in the public domain under other more complicated rules. For example, in the United States works registered from 1923 through 1963 lapsed into the public domain if the registration wasn’t renewed in the 28th year. But figuring out whether the copyright was renewed can be tricky and time consuming. Likewise, in some countries, a work goes into the public domain in less than 70 years after the author’s death. Determining the particular country’s rule and researching the author’s life and the publication history of the work are all do-able, but are more complicated than the simple, turn-key method outlined above.

by Chuck Cordes

Important notice: The information contained on the LOCC website is intended as general information only, aimed at familiarizing you with legal issues that may affect your art-based business. It is not a substitute for a one-on-one, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.

Finding Public Domain Images

How can you tell if an artwork (a painting, for example) or graphic design (such as a vintage advertisement) is in the public domain? There are many reasons you might want to use existing imagery that’s not your own when creating your art, and the public domain is an exciting treasure trove of inspirational material that is free for all of us to reinterpret (i.e. create “derivatives”).

Perhaps you have a hankering to recreate a 17th century Spanish still life as a limited edition screen print. Maybe you want to use scans of vintage textile patterns as part of your mixed media collage. Or you might have your eye on a photograph you’d like to use as a backdrop for a hand-lettered quotation. For all these uses and many others, it can be very helpful to know how to determine whether the image you’d like to use is in the public domain.

While sometimes the answer might be obvious (e.g. you have your own first-hand reference for that Spanish still life, snapped or sketched while you were visiting the Prado last summer), sometimes it’s a little murkier (e.g. you discovered the painting in an online museum catalog and that copyright-protected reproduction is the only source material you have access to).

Below I’ll help you sort through the nuances by looking at several different sources of public domain material and, where it’s not so obvious, give you some tips for assessing whether your use may be okay. I’ll start with public domain sources with the clearest boundaries. Note: (I’m confining my discussion to U.S. copyright law.)

Explicit dedication to the public domain

A lot of images are affirmatively offered free of copyright restriction. These are images that would otherwise be under copyright but the copyright holder has waived her rights and dedicated the image to the public. This category includes images offered under “Creative Commons” licenses that authorize use without limitation.

Images that lack enough original content to be copyrightable

There’s an originality requirement that an image must meet to be copyright eligible. The U.S. Copyright office has a list (see paragraph 313.4) of “works that do not satisfy the originality requirement.” This includes familiar symbols and designs such as musical notes, currency symbols, arrows and other directional signals, common representational symbols such as a spade, heart or diamond, common patterns such as the checkerboard, polka dot, chevron, or houndstooth, as well as the peace sign, gender signs, crosses, stars, crescents, Greek and Roman columns.

Images that were never under copyright

The U.S. didn’t have a copyright law until 1790. And in the beginning, that just covered printed materials like books and maps and charts. Photographs got coverage in 1865. Paintings didn’t make the cut until 1870. So think of all the works out there in the world that are public domain because they were made in a medium that didn’t get protection at the time.

Images that were once under copyright but are no longer

Then, of course, there are all the images that once were, but no longer are, under copyright. If you read my piece on quick and easy sourcing of public domain text, the same date considerations apply to images: anything first published in the United States before 1923 is no longer in copyright in the U.S.  (As with quotations, many images published after 1923 may also be in the public domain. For instance, the copyright may not have been renewed. These cases require some sleuthing in the copyright registry, but for now I’m looking at the simple and straightforward content sources.)

For this class of images, the first step to determining the U.S. copyright status is figuring out when an image was first published because the copyright term begins to run once the image has been published. What constitutes “publication”? The general rule is that publication of an image occurs when it’s made available to members of the public at large without regard to who they are or what they propose to do with it.

Let's be honest: that's not a super helpful definition. And there's some ambiguity (in the form of court decisions) about how to interpret it. For example, offering a painting for sale in a gallery open to the public has been found to be publication, but merely showing it in such a gallery is not necessarily publication.

So what can can be said with certainty is publication? Reproducing a painting or photograph in a newspaper or magazine is publication. Selling postcards or print reproductions of an image is publication. As a practical matter, the most common way to figure out if an image has been published is to find it in a book, catalog, magazine or other traditionally published medium. This class of printed materials will ordinarily state a print date and distribution to the public ordinarily constitutes publishing.

For this reason, a lot of the images you’ll find on the Internet billed as public domain are scans from books and magazines published in the U.S. before 1923. These images can be used without limitation and there are a lot of them. There are many great websites that are dedicated to collecting and freely sharing such images. (When using sites offering public domain images, remember that you must still use your good judgment and awareness of copyright rules, as the sites’ owners typically disclaim any liability for your use.)

You can also directly source your own public domain images. Your public library, favorite used bookstore, thrift stores and flea markets also likely contain many books published before 1923 (which you can verify by looking at the book’s copyright page), filled with wonderful public domain photos, illustrations, and designs.

What about a public domain image that’s photographed and republished more recently?

You may well wonder why the reproductions you find (online and in printed materials) of old public domain images--for instance, paintings that were made in the 1700s--sometimes carry a copyright notice. You may ask whether you would be infringing if you used those reproductions. This brings into play the idea of derivative copyright.

So what about the derivative copyright?

While it’s great to know that an image is in the public domain, it’s another issue whether you’ve got access to a reproduction you can use. This is both a technical and a legal question. By way of example, I’ll use a hypothetical painting you would find in a museum, but remember that this discussion applies equally to things like textile designs, photographs, and printed ephemera for which you can confidently ascertain that the original is in the public domain.

On the one hand, that photograph of a public domain painting you took while visiting a museum is yours and yours alone, but when you go to actually make use of that photograph for your own work it could well be flawed—too dark, too grainy, shot on an angle—to be useful for your purposes.  On the other hand, the digital image of the same work on the museum’s website looks pretty great. Well lighted. Crisp focus. Shot from straight on. It looks a lot more like the painting you remember. In fact, as you search for images on the Internet you’re very likely to find many high quality reproductions of the very works you’re confident are in the public domain. And very often, you’ll see that the image bears a copyright notice and is being offered under a license for a fee. What’s up with that?

Is it merely a copy?

This is where the “originality” requirement of copyright comes into play. A reproduction must add some new content to the underlying work in order to be independently copyrightable. A “mere copy” of an artwork has only the copyright status of the original. It turns out that many of those online images may well be “mere copies.”

The key case on this issue—Bridgeman Art Library versus Corel Corporation—came out in 1998. Bridgeman, which bills itself as “The World’s leading Rights Managed supplier of Art, Culture and Historic images,” contracted with museums for access to great public domain works of art and created high-quality photographic duplicates of those works, which it then offered to license for commercial uses and for sale on CDs for noncommercial uses. Corel Corporation accessed the CDs through a third party and proceeded to offer many of the individual images for sale in their own art-based products. Bridgeman asserted that even though the underlying paintings were public domain, its photographs—taken at great expense and with fidelity to the original artwork in mind—were separately copyrightable derivative works. The court disagreed, finding that Bridgeman’s “exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original.” The copyright buzzword is that an exact copy is “slavish” to the original, meaning that it looks so much like the original that it lacks originality and gets no separate copyright protection.

Phone books, piggy banks and the public domain

The judge in Bridgeman v. Corel relied on two important higher court cases. The first one, Feist Publications, Inc. v. Rural Telephone Service Co., was a U.S. Supreme court decision finding that a telephone company’s white pages publication was not copyrightable. In Feist, both parties agreed that the compiled facts—the name, home town, and telephone number of telephone line owners—were not in themselves copyrightable. But they disagreed over how much “originality” was needed to make the specific compilation copyrightable. This case is important in part because it looked at the issue of the “sweat of the brow” versus newness or creativity. The telephone company had gone through the work of collecting and compiling the data (i.e, it had expended “sweat of the brow”) but its final product, an ordinary alphabetical compilation, just wasn’t original enough, sweat or no sweat, the court decided.

The second case the Bridgeman judge relied on was L. Batlin & Son v. Snyder. In that case a manufacturer claimed copyright protection for a plastic, reduced-scale piggy bank copy of a larger, metal version that was in the public domain. Despite the derivative’s change in materials and size from the original, the circuit court found the plastic replica to be a slavish copy. Relying on these cases, the judge in Bridgeman found that even though the Bridgeman Art Library had transferred the public domain image to a new medium (photography), and expended considerable technical skill and expertise in the making of its photos (i.e. sweat of the brow), the resulting faithful photographic derivatives lacked creativity and were instead slavish copies.

The Bridgeman decision has been around a long time and most commentators believe that its reasoning is solid (see for example this 2012 interview with University of Virginia law professor Christopher Sprigman). It’s even cited in the Compendium of U.S. Copyright Office Practices (at 313.4(A)) for the proposition that copyright protection is not given to “mere copies.” But the loser in that case, the Bridgeman Art Library, apparently chose to not appeal the trial court’s decision. As a result (and this is important!) the Bridgeman v. Corel decision is only “persuasive” rather than “binding” legal authority. Other courts don’t have to follow it.

Putting the Bridgeman decision to the test

Since other courts don’t have to follow it, it’s still possible that a museum or other maker of digital photographic copies of public domain artworks could sue and win. So that leaves room for the creators of arguably “slavish” 2D images of public domain artworks to continue asserting a copyright interest in the photographic reproductions they offer to license. Case in point, Van Gogh’s “Starry Night” is in the public domain. The original painting is in the collection of the Museum of Modern Art in New York City. Go to the MoMA website and look up “Starry Night” and you’ll see information on how to license MoMA’s photograph of it. But if you go to Wikimedia you can find a downloadable image of the painting along with language echoing the Bridgeman decision: “The official position taken by the Wikimedia Foundation is that ‘faithful reproductions of two-dimensional public domain works of art are public domain.’"

To my knowledge neither MoMA nor any other maker of Starry Night “slavish” copies has sued Wikimedia for copyright infringement. And in the press it’s been said that in the wake of Bridgeman v. Corel the museums have stopped suing on unlicensed uses of their photographs of public domain paintings. But they could. And that’s enough to keep many people paying for licenses. It’s a strange situation. The museums don’t want to sue because they could end up with another Bridgeman-style decision from an even higher court that could become binding precedent for dozens of district courts. Such a decision would effectively call their bluff and make them look dishonest if they continued to seek licensing royalties. But if they don’t sue, then a good stream of uninformed or risk averse users will continue to pay for licenses to avoid the risk of being sued.

What does all this mean for you?

In effect, whether you choose to use this type of image or not boils down to how risk tolerant you are. Remember: Bridgeman only says that flat 2D duplicates of flat 2D public domain artworks aren’t creative enough. A 2D image of a public domain 3D sculpture might have enough creativity, due to artistic choices regarding angle, lighting, placement in the frame, etc., to be separately copyrightable. So your first step is to be sure that the underlying work you’re interested in is truly in the public domain and second, if you’re keen on using a reproduction you’ve found, satisfy yourself it’s a “slavish” copy and not something that has enough “newness” to qualify it as a copyrightable derivative. (Remember that this cuts both ways: if your new artwork is based closely upon a public domain work but contains enough of your unique creative content or transformative expression, it may well be copyright protectable by you.)

For those who want to use public domain images but don’t want to mess with even the possibility of a 2D image maker asserting copyright, you can look for sources that are unlikely to assert unreasonable derivative copyright claims. For example, large institutional image holders like the Library of Congress, the National Gallery, the British Library, and Wikimedia Commons willingly supply both images and, frequently, enough factual information for you to be reasonably confident that the underlying artwork is out of copyright. Likewise, there are sites like The Graphics Fairy and the mom-and-pop image site, which provides unlimited access to thousands of great public domain illustrations and graphic designs for a small monthly fee.

Pond5 is another excellent stock photo site that has a great collection of vintage photos in the public domain. They also have a super helpful video explaining what the public domain is, and they explain a couple of instances where one needs to exercise caution in using public domain resources for profit. Check it out here.]

In short, determining whether an image is in the public domain is a matter of applying rules to often imperfect information. Sometimes you just can’t be 100% sure there’s no risk of being called out by someone claiming a copyright interest. Always consider the source. At the end of the day, it’s up to you to decide how much risk you’re willing to take in using an image reproduction you’ve come across.

by Chuck Cordes

Important notice: The information contained on the LOCC website is intended as general information only, aimed at familiarizing you with legal issues that may affect your art-based business. It is not a substitute for a one-on-one, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.

Using Text from Works Still Under Copyright

Elsewhere I’ve looked at how to find copyright-free text for use in artworks. Here I’ll take a look at using text that’s still under copyright. Specifically, is it ever okay—without getting permission—to use copyright-protected text in an artwork?

Before getting into the details, I want to emphasize that your best bet is to get a license agreement from the author (usually obtained via a publisher or rights agent).  Licenses are often obtainable pretty easily and fairly inexpensively. Think of it as an insurance policy, because any time you use text that is under copyright without first getting the author’s permission, there’s a chance you could end up in a dispute.

But in some cases there’s an argument that text you’d like to use is so commonplace it couldn’t possibly be copyright protected. And sometimes what you’d like to use is such a tiny piece of the other work you might wonder whether it would be okay. Other times, you might be inspired by a quotation and want to alter it a bit to better suit your message.

First off, there’s a general rule that very small amounts of text can’t be copyrighted. As the U.S. Copyright Office advises, “The Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright.” This ban extends to “catchwords, catchphrases, mottoes, slogans, or short advertising expressions.” So if you’re keen on using the catchphrase “low hanging fruit,” have at it.

This presumption against short-text copyright derives from the rule that ideas can’t be copyrighted. Because there is a limited number of ways to express an idea, the law does not want to shut off access to ideas by over-protecting particular phrases by which they’re conveyed. Similarly, common expressions, such as “the future is now,” (which was a 1950s movie title and later, in the 1970s, popularized by NFL coach George Allen as a call to be excellent today) are seen as part of our common language, i.e., the public domain.

There are court cases, however, where a small amount of text was protected. The reason, again, comes in the distinction between ideas and expression. As we’ve noted before, copyright protects only the expression of ideas, not the idea itself. Ordinary words and phrases (i.e., common expression) and forms of expression that flow necessarily from the idea, get less or no protection. But the more novel and creative the expression of an idea is, the more likely it will be protected.

There’s a famous court case that offers two examples of brief text, taken from larger works, that would be protected. The first is “Euclid alone has looked on Beauty bare,” which appears in a fourteen-line poem by Edna St. Vincent Millay. The second is "Twas brillig and the slithy toves,” which is the first line of the poem “The Jabberwocky” in Lewis Carroll’s “Through the Looking Glass.” As to these, the court notes, even though quantitatively small in comparison to the work in which they appear, their novelty would give them protection against unlicensed use. From this you can conclude a kind of “inverse proportionality” rule. The more creative the text, the less you can take from the original. The less creative the text, the more you can use.

How does all this work in practice, in an actual infringement lawsuit? Let’s look at a few examples. In one case, the self-styled “epigrammist” Ashleigh Brilliant successfully sued a tee-shirt maker who’d copied three of his pithy writings:

“I may not be totally perfect, but parts of me are excellent.”

“I have abandoned my search for truth and am now looking for a good fantasy.”

“I’m in search of myself – have you seen me anywhere?”

Here the tee-shirt maker had appropriated the entire text of what Brilliant described as “pot shots,” one-off pithy statements, which at the time (back in the 70s) he offered for sale on greeting cards. And here there was no issue as to whether the infringer took too much text, (they’d taken it all), but rather whether the text was sufficiently original to warrant protection. The court reasoned that Brilliant’s epigrammatic wit was sufficiently idiosyncratic and creative to be worthy of protection.

This “creativity” analysis is, however, a tricky thing. John Lennon once faced a lawsuit claiming he’d improperly copied the words “Here come a flat-top, he was movin’ up with me,” which was just one line in the thirty-line Chuck Berry song “You Can’t Catch Me.” In “Come Together” Lennon changed the line to “Here come old flattop, he come groovin’ up slowly.” Even though he’d taken only a small part of Berry’s song, and modified the text, Lennon settled the matter without trial.

But it can go the other way. In another songwriting infringement action, the court found that the lyric “Got my mojo working, but it just won't work on you,” was a common phrase lacking sufficient creativity and qualitative importance to be protected.

Likewise, when two composers penned a country song containing the lyrics “She don’t drink, she don’t smoke, she can’t stand a dirty joke,” they were sued by the copyright holder in another song containing the lyrics “I like to gamble, I like to smoke, I like to drink, and tell a dirty joke.”  The court rejected the claim, finding the disputed language just too ordinary in the genre: “It cannot be contested that a finite number of themes surface in country music songs. The terms ‘drink,’ ‘smoke,’ and ‘dirty joke’ are not subject to the proscriptions of copyright law.” So if there’s any “take away” here, it’s that commonplace language and popular phrases might be okay to use, even if they appear in a copyright protected works, because the author can’t lay claim to copyright in such small arrangements of words.

Practically speaking, if you want to use a quote, it’s best to find its actual source, such as the book or speech or movie it first appeared in. How much of the original work are you intending to use? If it’s just a tiny fragment in a 300 page novel, better. But even if you’re just taking a tiny fragment, ask whether this is ordinary language or highly creative? Is it more like “I get up every morning to the alarm clock’s warning,” or “'In Xanadu did Kubla Kahn a stately pleasure dome decree”? The more it looks like the latter, the more you’re going to need to think about a license.

Another angle on the use of text taken from works still under copyright is the concept of “transformative use.” Full disclosure: I’m very skeptical of this mode of justifying unlicensed use of another’s work.

“Transformative use” is a concept that comes up in the “fair use” analysis of copyright infringement cases. In recent years many works have been deemed fair uses based on the conclusion that they are “transformative” of the original. Because transformative use has come to occupy an important role in fair use cases—and yet the term “transformative use” appears nowhere in the fair use statute—I’ll look at how this analytical tool came into being and what it might mean for artists who’d like to use copyrighted material (like quoted text) in their artworks.

First, a brief overview of fair use

Fair use is a defense to copyright infringement. The secondary user asserts that even if she’s found to have copied, her copying was excused as a fair use.

The Fair Use doctrine is codified in section 107 of the Copyright Act. The preamble contains a non-exclusive list of potentially fair uses, including criticism, comment, news reporting, teaching, scholarship, and research. Its main text provides four distinct factors to consider:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work

As anyone trying to actually apply section 107 quickly learns, on its face this test really doesn’t offer a whole lot of guidance on how to apply it. Open-ended legal tests like this are normally explained through dozens, if not hundreds, of legal opinions in which a kind of consensus develops around the meaning of each factor. Unfortunately, in fair use law, inconsistency rather than consensus has evolved. As David Nimmer, the guru of copyright law, has observed, judges tend to use the factors not as a means to analyze critically, but as pegs on which to hang their prior conclusions as to who should win.

Transformative Use

In 1990 a judge in New York, Pierre Leval, published an article entitled, “Toward A Fair Use Standard.” Leval proposed that the way to understand and apply the four factors was to keep in mind the nature and purpose of Copyright Law. That purpose, he argued, was to maximize the availability and growth of new ideas and information to the public at large. According to Leval, the rights given to an author were merely one way to achieve that goal by incentivizing new artistic creation. But, in Leval’s view, the author’s rights must give way when it served the public good.

Leval’s article has been enormously influential. In it, he dives into each of the four factors of the Fair Use doctrine and creates a clear argument for how they should be weighed against one another. A comprehensive explanation of Leval’s ideas is beyond the scope of this article, but his discussion of the idea of transformative use can help us make better-informed decisions about whether one artist’s use of another’s copyright protected material might be a fair use.

According to Leval, the answer to whether a non-licensed use of copyright protected material can be justified depends on whether that use is transformative. He says: “The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test…. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”

Regarding the amount and substantiality of the portion taken, Leval says that in general the more you take the less likely that the use is fair. And as to the effect on the potential market for the copyright protected work, he says: “By definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties” and goes on to argue, therefore, that this factor should be invoked only when the risk “to the copyright holder's potential market would substantially impair [his or her] incentive to create works for publication.”

How all this works in real life

Transformation has repeatedly provided the fair use justification for one user to freely copy—for commercial purposes—another’s work. These are often high profile cases in which the defendant arguing fair use through transformation is more famous and much wealthier than the artist whose work has been appropriated. For instance, the artist Jeff Koons was vindicated for incorporating a copyright protected advertising photograph into a “fine art” collage. The band Green Day was excused for having incorporated Dereck Seltzer’s “Scream Icon” into their stage backdrop for a music tour. And in Cariou v. Prince, the court allowed the art-world darling Richard Prince to incorporate 25 of Patrick Cariou’s photographs into his artworks without permission and sell them for over $10 million. No harm came to Cariou, the court reasoned, because Prince’s work, sold by galleries targeting the super wealthy, occupied a different market niche than the lowly, struggling Cariou. In all these cases, the original artists got nothing from the secondary user.

While transformative use may be a fair use argument, whether your particular use would be sufficiently transformative to immunize you against a copyright claim is pretty much impossible to predict. In all these cases the parties spent very large sums of money fighting it out. And it’s pretty obvious that “transformation” can go both ways. On the logic of the Cariou case, any artist could take another artist’s work, modify it and sell copies so long as sale of the transformed work does not appear to substantially diminish the value of the original. This seems to take fair use a far distance from another value arguably dear to copyright, the right of the creator to control how her work is used.

In the final analysis, if you’re wanting to use another artist’s text in your artwork, then there’s a good chance that it will contain the level of wit and pith that, despite its brevity, puts it into the realm of protectable content. Proceed with caution. Getting permission is a wise course. Relying on the concept of transformative use is a gamble you might want to take, but one fraught with risk, both ethical and legal.

by Chuck Cordes

Important notice: The information contained on the LOCC website is intended as general information only, aimed at familiarizing you with legal issues that may affect your art-based business. It is not a substitute for a one-on-one, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.