Copyright Infringementin Fine Arts Classes

A Brief Educational Overview for Students and Instructors

by Kevin Jenkins, 2011

• Reproduction: a copy• Derivative work:

• Based on one or more preexisting works• takes many forms, but includes such common

occurrences as making a collage or creating a drawing that is based on a photograph in visual art or of sampling/remixing musical compositions

• Who may make a reproduction or derivative work?• the copyright owner of the original work or someone they

give consent• exceptions given for “fair use”

Reproductions and Derivative works

§ 107 · Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Fair UseWhat the U.S. Copyright Law states:

(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;

Fair Use

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair Use

1. Attributing the source• Doing so avoids plagiarism, but not copyright

infringement.2. “My teacher said I could, so it must be okay.”• Under fair use, you may be told to copy a small

portion of a copyrighted work for instructional purposes, such as to learn a technique or about a certain style.

• This does not mean the reproduced or derivative work is a student’s original work and should not be displayed or attributed as such. Once such a work is exhibited publicly in an art show, etc., its nature changes from educational to commercial, thus breaking copyright law.

Myths

3. Changing or using only X% (10, 50, 70, etc.) of a copyrighted work

• There is no set percentage of transformation in derivative work that makes copying okay.

• Substantiality—what importance does the copied portion hold to the original, copyrighted work?• Can a “reasonable person” see a comparison

between works?The following slides are examples of originals alongside derivative works. Can you see the similarities between them?

Myths

Marcel Duchamp. L.H.O.O.Q. Reproduction and pencil. 1919.

Leonardo da Vinci. Mona Lisa. Oil on wood . 1503-06.

Sandro Botticelli, The Birth of Venus, c. 1485. Tempera on canvas.

Alain Jacquet, Camouflage Botticelli (Birth of Venus), 1963–64. Oil on canvas.Modern Art Museum of Fort Worth. Photo taken with permission.

Diego Velazquez. Las Meninas. 1656. Oil on canvas.

Diego Velazquez. Las Meninas. 1656. Oil on canvas.

Joan Miro. Carnival of Harlequin.1924-25. Oil on canvas.

Of course, the previous examples do not violate current copyright laws for two simple reasons:1. The original works that were derived from

were made so long ago that copyright expired on them.

2. The derivative works were created prior to current copyright laws.

(They were used merely to demonstrate comparability between original works and derivative works.)

To deter infringement:• Students:

• Gain permission from the copyright holder if copying allowed by instructor

• Use images that are truly public domain (this does not mean they are on the internet or other public display) if copying allowed by instructor

• Work only from “direct observation” and original source material, not from another artwork

• Instructors:• Stress ethical behaviors in the creation of student work• Assignment criteria to incorporate checkpoints for ethical

behaviors

Methods and Tools

To detect:

• Instructor intuition and experience• Amount and nature of assignment checkpoint

material• Google Image Search (Video demo)

• Drag-and-drop image of student work for instant web search of image. Works much like plagiarism sites for research papers.

Methods and Tools

Resources

United States Copyright Office. http://www.copyright.gov/

Google Images. http://images.google.com

Sources used for this presentation

United States Copyright Office. Copyright Registration for Derivative Works. Copyright Law of the United States.

http://www.copyright.gov/title17/ Mark Harden. Artchive. http://artchive.com/

This presentation was created for and is to be used for educational purposes only.