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Monday, December 28, 2009

What is Fair Use?

During the last year, there has been a lot of press on what is fair use in art, photography, music and the written word. Fair use is a very complex concept because the law does not provide clear guidelines on what is fair use and what constitutes an infringement. Unfortunately many people believe the "old-wives-tale" that all you need to do is change art a certain amount and you don't have to worry about getting sued. However, what is allowed in fair use is more complicated than that and as attorney Joshua Kaufman says in his article Don't be a Copycat, "There’s no simple, firm guideline as to how much you have to change from one work to another to avoid infringement. Such statements as "All you have to do is change a little bit," "5 percent," "20 percent" and so on have no support in the law. Ignore them. The test for copyright infringement is whether the two works are substantially similar. Substantial can be looked at in two ways: quantitatively and qualitatively. Not only does the legal system look at the amount of material copied, it also considers the importance of the portions copied. . ."

Artist Shepard Fairey found out the hard way when he used a photograph of Barack Obama taken by Mannie Garcia for Associated Press as a basis of art for a campaign poster. His legal troubles are ongoing and will most likely continue for years. Read "AP And Shepard Fairey Settle Lawsuit over Obama Image; . . . " for more information on the lawsuit.

So the moral is to make sure that you have permission to use photography or art that has been created by others before using it in or even as a basis of your own art. Or better yet, don't use other persons work in your art.

Related articles:
"Is Fair Use Really Fair?" by attorney Samuel Lewis
"How Different is Different Enough" by attorney Joshua Kaufman

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