Fine Arts, Visual Arts and Design

The “Fair Use” Doctrine: Protect Yourself against a Claim of Copyright Infringement

Whether you use images of people or products in guerrilla photography or film, or create mash-ups or collages or graffiti, or present collections of ad hoc vintage photographs or other images from pop culture – the “fair use” doctrine, an ever-evolving area of law, provides a defense to a claim of copyright infringement. “Fair use” protects your right to incorporate the work of others into the expression of your creative ideas. The line between “fair use” and illegal copyright infringement is murky and requires analysis of several factual and legal issues.

Some “Fair use” points to consider:

  • Does your work “transform” the original work?
  • Does your work add new expression or meaning to the original work?
  • Does your work generate new insights or understandings, add new aesthetics or information to the original work?

Mark A. Baker Law will analyze the application of “fair use” to your art, focusing on the scope and malleability of the “fair use” exception.

Contemporary artists often incorporate images from pop culture into their art, images that are likely subject to someone else’s copyright interests. Whether in contemporary fashion, music, advertising or sports, virtually every image is protected.

Do I Need to Work With a Lawyer? Some points to consider:

  • Is your copyrighted work showing up on someone else’s website without your permission? You have rights under the Digital Millennium Copyright Act (“DMCA”) to demand that the website owner take down your work. The DMCA was intended to provide protection to Internet service providers while balancing the interests of copyright holders and it provides a means to communicate directly to the infringing website. And you retain all copyright protections against the website.

Mark A. Baker Law also represents fine artists, sculptors, photographers, illustrators, and art galleries in a variety of areas.

Representative services include:

  • Copyright registration
  • Preparation and negotiation of various agreements, including art consignment agreements, commissioned artwork agreements, photographer/artist model releases.
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