How Copyright Law Protects Creators of Original Works?

Copyright law grants content creators exclusive rights to reproduce and sell their creations. The rights to reproduce, perform and distribute the copyrighted work are among the exclusive rights granted by 17 U.S.C. 106 of the Copyright Act of 1976. For example, if you write a book, no one else can photocopy and sell it without your permission.

When these rights are violated, copyright owners can sue for monetary damages as well as a court injunction ordering the offender to stop infringing.

As you might expect, copyright law is a valuable tool for visual artists. Imagine spending months creating a stunning landscape painting just to have someone else come along and create posters of the image without your permission, then selling them all over town. You would undoubtedly be enraged, as this infringement has practically grabbed your work for profit without your permission.

Join our newsletter

You must register your work with the 17 U.S.C. 107 in order to sue for copyright infringement. However, certain use of copyrighted material “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 use is founded on the concept that the general public has the right to freely use portions of copyrighted materials for the purposes of commentary and criticism.

When deciding whether the defense of fair use applies in a copyright dispute, a court will look at four elements related to the infringer’s use of the copyrighted work. These are:

  1. the purpose and character of the use, including whether it is for commercial or nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use on the copyrighted work’s potential market for or value.

Consider these fair use elements in the context of the photographic collage above, in which you want to utilize a photo of a building shot by a third-party photographer in your landscape painting. Only if you intend to sell the painting will your usage of the photos be commercial. There is no commercial element if you simply want to keep it or exhibit it in your house. Furthermore, even if you intend to sell it, the photograph is only a small part of the overall piece. If you only use a little portion of the photographer’s photo of the building, it will be in your favor; if you use the complete photo, it will be to your disadvantage.

Finally, if your use of the photo might have an adverse impact on sales of the photograph (and hence injure the photographer), that would be a point to consider. However, that appears to be doubtful in this case. Few people would prefer to buy your painting over the unobtrusive snapshot, and vice versa. Overall, it appears that your usage of the photo in your collage is fair use. In most cases, copyright law will allow artists to use the works of other artists, at least within the bounds of the fair use criteria’ balancing tests.

If you intend to use a major portion of an artist’s copyrighted work, it may be worth your time to ask permission as a matter of professional courtesy and caution. This is especially true if you suspect the artist is well-known or has a zealous legal team defending his or her copyrights. When an artist is asked for permission, he or she may be less inclined to become enraged when their work is copied without permission.