Re: A question of copyright

[Katharine Thayer <kthayer@pacifier.com>]

On Mar 5, 2007, at 11:26 PM, Judy Seigel wrote:
> There's also the fact that when a prior work is *changed* it  
> becomes freedom of expression, parody, quotation, fair use,  
> whatever.... Photographs are often used in other art.  When I was  
> an illustrator I used a "scrap file" for reference.... Sometimes  
> folks actually recognized my original (I liked famous photo  
> portraits by Penn, Avedon & company from Vogue... that was before  
> we all had cameras and could snap our own reference.)  And  
> perfectly legitimate, no law suit possible.

I think sometimes artists get "fair use" mixed up with "derivative  
work;"  they are two different things.  Fair use is allowed, as in  
copying short excerpts or using pictures of work for teaching or  
critical purposes, but the right to make a work that derives from  
other work is reserved to the author of the original work, under US  
copyright law. There are five rights protected under US copyright  
law: the right to reproduce the work, the right to prepare derivative  
works, the right to distribute copies of the work, the right to  
perform the work, and the right to display the work.

The US statute (code 17) defines derivative work as follows:

A “derivative work” is a work based upon one or more preexisting  
works, such as a translation, musical arrangement, dramatization,  
fictionalization, motion picture version, sound recording, art  
reproduction, abridgment, condensation, or any other form in which a  
work may be recast, transformed, or adapted.

I am acquainted with a famous photographer who was not amused to find  
one of his photographs represented in a painting that was exhibited  
at the Whitney Biennial several yeas ago, and he certainly had  
grounds for a lawsuit, although I doubt he pursued it, as he's not a  
litigious kind of guy and wouldn't want to spend time on it.  But he  
was NOT happy, and felt (legitimately, as I read the law) that his  
copyright had been violated.

And recently, in a local example, the designer of a coin celebrating  
Lewis and Clark used, as a basis for his design, a photograph by a  
local photographer  that he found on a website.  When the  
photographer brought the similarity to the U.S. Mint's attention, the  
designer admitted that he had in fact used the photographer's work as  
the basis for his work.  I don't think there was any lawsuit, but the  
designer and the Mint did at least acknowledge the photographer as  
the holder of the copyright of the original work that the design was  
derived from.

Katharine