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Articles
VISUAL ART CASES - DERIVATIVES
Intro by Monica Corton
Slide Notes by Nancy Wolff, Esq.
A person who creates a copyrightable work has not only the right to protect the original work, but also the right to protect and control any works that are variations on the original work. These variations are called "derivative works" and they include making modifications, adaptations or other new uses of a work, or translating the work to another media. Therefore, if you find a work that you like, for example a photograph or sculpture, you cannot simply change it to another media (i.e., a painting) and call it your own. You need to include a credit to the original creator and identify your source for obtaining the original work. In the case of most educational uses, citing your source will probably be sufficient to make a clear distinction that you are not the original author of the work and have therefore created a derivative work. However, if you were to try to sell your derivative work or distribute it on mass, you would most likely need a formal permission from the original copyright holder.
The following slides include four legal cases that have to do with derivative works issues in the visual arts. As you can see, for the most part, the court is very protective of the rights of original creators to control derivative works. The complexity of issues with regard to artistic works makes visual arts cases some of the most difficult to consider. As a creator, it is your job to respect the role of other creators. After all, would you want someone taking your work and calling it his or her own?
SLIDE 1 NOTES:
Koons v. Art Rogers 1992
Sculpture artist Jeff Koons lost this copyright infringement case. The artist asserted it was fair use to change a photograph into a 3 dimensional work without obtaining a license. The court disagreed finding that substantial copyrightable elements were borrowed despite the change in medium. It is not fair use when more of the original is copied than necessary. The court held the copies were made primarily for defendant's commercial benefit. A fair use parody had to parody the copied item at least in part rather than copy the work wholesale as part of a claimed parody of society at large.
SLIDE 2 NOTES
Jack Leigh v. Warner Bros (1998)
Cover of Book, Warner movie recreated photograph. Court determined that there could be copyrightable elements for a jury to decide. All of the photographs are taken from a low position, angled up slightly at the "Bird Girl so that the contents of the bowls in her hands remain hidden. Hanging Spanish moss borders the tops of all the photographs except the soundtrack cover. The statue is close to centered in all of the pictures except one newspaper advertisement for the movie, which places the Bird Girl in the left third of the frame. Light shines down and envelopes the statue in all of the images, leaving the surrounding cemetery in relative darkness. All of the photographs are monochromatic.
These expressive elements all make the pictures more effective. The Spanish moss provides a top border to the images. The location of the statue and the lighting in the pictures together draw the viewer's attention. The lighting also lends a spiritual air to the Bird Girl. Finally, by keeping the contents of the Bird Girl's bowls hidden, the angle contributes to the mystery and symbolic meaning of the images.
Outcome: The case was not dismissed and the issue of copyright infringement was referred to a jury. The parties then settled.
SLIDE 3
Sahuc v. Tucker 2004.
The court found for the infringer, holding that his photograph was not substantially similar to the copyrighted photograph. A side-by-side comparison was required to determine if a layman would view the two works as substantially similar. The idea and the subject matter of the photographs were not copyrightable. The infringer's photograph, which was in color, did not similarly place the urn, statute, palms, cathedral, or the banana leaves. Further, St. Louis Cathedral and its cross were focal points of the infringer's photograph, while the gate was the focal point of the holder's photograph. Actionable copyrighting does not take place where a photographer takes a picture of the subject matter depicted in the copyrighted photograph, so long as the second photograph does not copy original aspects of the copyrighted work, such as lighting or placement of the subject.
SLIDE 4
Mannion v. Coors Brewing Co. (2005) Very Recent.
The image on the billboard almost certainly imitated the photographer's picture. The major question was whether and to what extent what was copied was protected. The first element of copyright is originality and, accordingly, that copyright protection may extend only to those components of a work that are original to the author. The photograph was clearly original in the creation of the subject, a reasonable jury could have found substantial similarity either present or absent. It sometimes is said that copyright in the photograph conveys no rights over the subject matter conveyed in the photograph. But this is not always true. The photographer of a building or tree or other pre-existing object has no right to prevent others from photographing the same thing. That is because originality depends upon independent creation, and the photographer did not create that object. By contrast, if a photographer arranges or otherwise creates the subject that his camera captures, he may have the right to prevent others from producing works that depict that subject.
Outcome: The question of whether the billboard photograph infringed the Mannion Photograph was not dismissed and was referred to a jury.
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