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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.

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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.