Creating Art

Fair Use

ANNOUNCEMENTS

No class on Monday- Go to Creative Imperatives!

Wednesday: dual focus, including how legal documents work

Court Documents

Article that contextualizes them

Public Domain

Ideas too generic

Subjects that don’t qualify

Works that lost their copyright

Works created before we invented copyright

Fair Use

First appeared in 1976 revision of copyright law

Acknowledged a need to use existing work “to promote the progress of

science and useful arts”

Circumstances where you can legally borrow from another copyrighted

work

Provides a loose structure for rating the use

Transformative Work

Inspiration from one work that leads to something new

Must stand on its own- has the “personality” of the new artist

Must be a substantial change

Often also a change in medium

Case Study Introduction

DLT Entertainment v. David Adjmi

Presentation on Monday March 11

Mad Men

Producers maintain

transformative use

Only seen for one second

Within spirit of original

context of ad

(Didn’t ask Revlon either)

Cariou (photographer) v. Prince (artist)

Artist (Richard Prince) used 41 photos (by

Patrick Cariou) from a book without

permission

Considered them “raw material” for his art

No direct commentary on the original

photographs

Artist lost then won (most) on appeal to

Federal court- Supreme Court upheld

Fair Use

Not Fair Use

A New Battle of the Bands

Song #1

Song #2

Campbell vs. Acuff-Rose Music, Inc

Ultimately found to be transformative, likely parody, by Supreme

Court

New song is distinct with changed lyrics

Not a direct competition in the market

Fact that it is commercial is outweighed by other factors

Dangerous precedent for digital sampling- hotly contested still!

Parody

Direct commentary on the referenced work

Has to reference the original in order to exist

Criticism or entertainment

End result is a complete new work itself

Different from SATIRE (an indirect commentary)

NOTE: Both parody and satire can be transformative and protected. When there are

legitimate legal challenges, they tend to be parody more often than satire because they can

mock the work itself and not just the subject matter or artistic form.

Annie Leibovitz v. Paramount Pictures

Annie’s Loss

Clearly a parody

Did not negatively impact sales of Annie Leibovitz photos

The photo itself is based on a classic form in art (Venus Pudica)

Went With the Wind

Forbidden Broadway

Pretty Woman

Other Questions

Chapters of books in college course packs

Thumbnail images in search engines and online stores

Cutting the “adult content” out of films and airing/distributing