November 2016

by Suzanne Kessler

This article is the second in a series exploring the fair use doctrine as it pertains to the visual arts. Last month’s introductory article discussed well-known examples of artists using third-party-owned, copyrighted materials in their own works and whether those uses constituted infringement or “fair use.” This month’s article looks more closely at the concepts of copyright protection and fair use.

Copyright protects creators’ original expressions in pictorial, graphic, and sculptural works (e.g., paintings, drawings, and photographs). A copyright owner possesses the exclusive rights to make copies of the copyrighted work, make derivative works based upon it, sell and distribute copies of it, and publicly display it. Others wanting to use the copyrighted work in these manners must first secure the permission of the copyright owner; otherwise, the owner may claim infringement . . . unless the use falls under the fair use exception.

The fair use doctrine allows the unlicensed use of a copyrighted work for purposes such as criticism, comment, and parody; and such use is not considered an infringement of copyright. In analyzing whether the use made of a copyrighted work is a fair use, four factors are taken into account (as set forth in §107 of the U.S. Copyright Act of 1976): “(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educational purposes; (2) the nature of the copyrighted work [e.g., is the work factual or creative, published or unpublished?]; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole [e.g., has the ‘heart’ of the copyrighted work been used?]; and (4) the effect of the use upon the potential market for or value of the copyrighted work [e.g., is the use negatively affecting the income generated by the work?].”

Next month’s article will delve further into these fair use factors and their application to the visual arts.

Suzanne Kessler is Of Counsel at Bone McAllester Norton PLLC and Adjunct Professor at Vanderbilt Law School, where she teaches courses in intellectual property licensing and entertainment law.

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