Does a Derivative Work Violate Your Copyright?

Alistair Scott reports on a incident where it looks as though a painter combined two photographs to create her work that won the American Watercolor Society’s (“AWS”) 2008 prestigious Gold Medal Award. The winning painting has been withdrawn from view and the AWS is investigating the matter.

But what about the rights of the photographers who took the two photos that appear to have been used to create the painting? First, a painter or other creative may license the right from a photographer to create a copy or derivative work. However, if the license is not obtained, has there been a violation of the photographer’s exclusive rights? It depends.

Exclusive Rights
United States Copyright Law grants exclusive rights to the photographer of an image for use of that image, including the rights to:

– reproduce the copyrighted work;
– prepare derivative works based on the copyrighted work; and
– distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

See 17 USC Section 106. When those rights are infringed, the copyright owner is entitled to recover damages suffered as a result of the infringement. See 17 USC Section 504.

Infringement of Copyrighted Photographs
Under U.S. Copyright law, you violate the copyright owner’s exclusive rights of copying and/or to create a derivative work by creating a work that is a copy of or “substantially similar” to another’s. The courts determine whether the two works are substantially similar by comparing them and evaluating whether copyrightable elements have been used in the second work. A court is much more likely to find an infringement if the subject of the photo has been “set up” by the photographer and contains creative and original elements, compared to a photograph of subjects that already exist, such as in nature or a structure such as the Golden Gate Bridge.

Fair Use
Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too. Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

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

See 17 USC Section 107.

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

For more information on fair use, review my May 14, 2008, blog entry.

Instructive Cases
All artists are inspired by other artists, including photographers. That is one way how art develops. But when a photograph is so similar to another work that it appears to be the same expression of the idea, it may be difficult to believe that it was an accident. Imitation may be the sincerest form of flattery, but no one is grateful when work is stolen.

However, courts don’t always find infringements in those cases despite there appearing to be obvious copying to the outsider’s eye. For instance, artist Jeff Koons was found to have infringed the German Shepherd puppies’ photograph in Rogers v. Koons when he created a sculpture based on the photo but not when Andrea Blanch sued him when he scanned a portion of Ms. Blanch’s photograph and incorporated it into a collage. William Patry discusses both cases here.

In this matter, it appears that the painter strictly copied two photographs into a different medium (similar to the Rogers v. Koon case). Would the fact that the painter combined the two photographs be considered a transformation of the underlying work as in the Blanch v. Koons case? While only a court can decide whether a creative work is an infringement of another or falls under fair use, this use raises some concerns.

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