U of S | Mailing List Archive | alt-photo-process-l | Re: A question of copyright

Re: A question of copyright

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.