The proliferation of appropriation art—or art that intentionally copies another person’s work and alters it in some way—has been at the forefront of a series of copyright infringement cases over the last few decades. A common defense used in this age-old strategy is “fair use” under U.S. copyright law. This claim has provoked a longstanding debate among the industry.
To some, the ability to claim “fair use” opens up the possibility to creatively expand upon existing visual works. However, others fear it opens up their material to exploitation at the hands of well-known artists and companies who make minor “cosmetic upgrades” and then take credit for the work as their own.
Of the 64 percent of professional photographers who had their work stolen in 2016, commercial businesses were responsible for 28 percent of the theft.
As a business owner and decorator, it’s important to thoroughly understand the difference between “fair use” and copyright infringement to avoid costly lawsuits. But don’t worry, we’ll break it down for you.
*Please note, this article should not be taken as legal advice. Always consult with your personal legal advisor before relying upon the information provided.
The Fair Use Defense
What is Fair Use?
“Fair use” is outlined in a set of guidelines found in Title 17, Section 107 of the U.S. copyright act. It allows the use of copyrighted materials without permission from the owner in specific cases. Essentially, the guidelines give people the ability to build upon the work of another so long as it doesn’t deprive the original artist of the right to “control and benefit from their works.”
For example, Section 107 states that using someone else’s work as a part of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not considered an infringement of copyright.
Note, we said guidelines, and not clearly defined circumstances. The wording of the law is meant to be vague. It avoids stifling the very creative process it’s protecting.
While the lack of specificity can be daunting, there are a set of principles that courts use to determine if a case adheres to “fair use” guidelines.
Principles to Consider
- The purpose of use: Non-commercial, editorial, parody and educational use are covered under the law. Commercial use is a gray area, though. Tread carefully if you’re mass producing printed tees with popular paintings, images or designs.
- The nature of the copyrighted work: Is the original work part of public domain? For example, the Mona Lisa is considered public domain use because Leonardo da Vinci died over 70 years ago.
- The amount used: The smaller amount of the original work used, the better.
- The market effect: As mentioned previously, if your appropriation of a copyrighted image deprives the copyright owner of income through direct competition, you can be hit with a copyright lawsuit.
When it comes to decorated apparel, “fair use” is not duplicating a work of art as is, screen printing it and then selling it. Making only minor tweaks to the artwork, such as mirroring an image or changing a color, would also not be “fair use.”
So, how can businesses ethically claim “fair use” when appropriating visual creative?
Businesses and Fair Use
At its core, “fair use” is a defense against claims of copyright infringement to allow for freedom of expression. If you’re comfortable navigating the waters, keep the following top of mind:
- Use as little of the artwork as possible
- Transform the design in a significant way
- Make sure your purpose is clear
Worried about copyright infringement? In the end, originality is always best practice. To truly become a lifestyle brand people will respect, work to build your own definable brand aesthetic.
Pro Tip: Carry a sketchbook so you’re prepared when inspiration strikes! Have a cool idea in mind already that merits the work of an artist you admire? Reach out and discuss the possibility of a collaboration.
To learn more about copyright laws to protect your business, check out our guide on how to avoid copyright infringement.