A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Question: I use quotes on my work, like Carl Jung for example, along with an image of my own. I have been receiving nasty comments saying that I will be taken to court. Can they do this for a quote?
Answer: Yes, if you’re quoting copyrighted materials. The U.S. Copyright office has a FAQ (Frequently Asked Questions) link, https://www.copyright.gov/help/faq/faq-fairuse.html. Feel free to read that, as well as a few additional comments that I hope will be helpful.
Copyright law applies to written expression, as well as visual arts. Other people can hold copyrights in the words they write: works of authorship, or literary works, or whatever. Below are the copyrights that you have, as an artist, as well as the rights that the author has in the written words you perhaps wish to copy and memorialize in your artwork. I’m including the whole thing, because music, dance, and some other things can be copyrighted as well. Mentioned elsewhere in copyright law are additional things like computer programs, architecture, and vessel hulls, which can be copyrightable depending on the circumstances.
“106. Exclusive rights in copyrighted works38
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”
While copyright law prevents copying other people’s work in many situation, there are a lot of situations where you can copy other people’s work, perfectly legally.
You can copy anything that’s in the public domain all you want. The public domain is anything that is not protected by intellectual property law. Old things are often in the public domain. Copyrights expire. After a copyright expires, the work goes into the public domain. Many works were made prior to the existence of copyright law. Before copyright law, and other forms of intellectual property existed, everything was in the public domain. Anything that was made before copyright law existed is in the public domain. The U.S. Congress passed the first Copyright Act in 1790, and after that it has been changed a number of times, in ways that affect whether works are in the public domain or not. It can be a bit of a challenge to figure out whether more recent works are in the public domain. If you want to try to figure out whether something is so old that you can copy it, my favorite resource is:
I especially like the part where anything from before 1923 is in the public domain. If you pick quotes from before 1923, you should not run into copyright issues (under U.S. law).
Of course, if you can copy it, because it’s in the public domain, so can everyone else. If you are making derivative works by including public domain elements in your art, your derivative work is only protected by copyright to the extent that the derivative work is your creative effort. If you’re using Jung’s quotes in your work, the quote part can’t be copyrighted by you (Jung wrote the quote, you didn’t), but you do have a copyright in the rest of your work of art (assuming the rest is your original work). If you want to copyright the quotes you include in your work, you’ll have to write your own original clever or thought-provoking things to say.
Popular Words and Phrases:
In concert with the idea that whatever is in the public domain is not copyrighted (and therefore available to anyone to use), the following cannot be copyrighted:
Titles, names, short phrases, and slogans, as well as familiar symbols or designs. https://www.copyright.gov/circs/circ01.pdf
It is a little bit difficult to tell what the difference is between a public domain “short phrase” or a “slogan” (which you may copy with impunity), as opposed to a copyrightable longer and more involved quote someone wrote that is long enough to come with a copyright attached. I’m going to suggest that if you want to use quotes from the “we aren’t sure whether this is a short phrase or slogan or not” gray area, then for the particular quote you want to use, either do the legal research (or ask your lawyer to do it for you – and don’t be shocked if your lawyer can’t give you a clear answer), and figure out how much litigation risk you’re assuming if you decide you must include that particular quote in your art. It’s not based on the law, especially, but my personal approach would be to do a google search for that phrase on the internet. If everywhere I find it, it’s in quotes and attributed to a particular author, I would guess it is probably not in the public domain on the basis of being a short phrase or slogan. Bear in mind this is not an especially accurate approach, it is an easy-to-use approach that doesn’t cost legal fees or take a lot of time.
The grossly oversimplified version is: Depending on how you use what you copied, what you’re doing might be legal. Copyrights are limited, the owners of copyrights can’t bring all uses involving their work to a screaming halt, that’s not in the public interest. Therefore, Congress decided to leave certain uses of copyrighted works in the public domain. Congress left this very open-ended and subject to interpretation. So the courts have done a lot of interpreting, the case law leaves us with massive gray areas.
It can be very difficult to predict whether a particular use is going to be a fair use before it gets litigated. Fair use gets more complicated, not less, if we bring in other areas of intellectual property law (trademark, publicity / privacy rights, etc.) that also have their own similar but not the same as copyright law fair use balancing tests. A use of copied material can be fair use for copyright purposes, and not fair use for trademark, or vice versa, depending on very small and not-obvious-to-the-uniformed differences in the facts.
For copyright, what we have, as a starting point, is a balancing test, using the following four factors:
• The purpose and character of the use
• The nature of the work
• The amount and substantiality of the portion used in relation to the work as a whole
• The effect of the use on the market or potential market for the original work
After we get through fishing through all the case law, and trying to figure out whether we can use fill-in-the-blank piece of copyrighted work under “fair use,” some patterns emerge, showing some areas where copying is usually allowed, and areas where copying is usually not allowed.
Some of the areas that are usually allowed are artistic expression, news, intellectual discussion, education (that’s why the teacher was able to give you “copy this work by a famous contemporary artist” assignments in your high school art classes, and s/he didn’t have to ask the artist for permission first), and certain types of humor such as parody. What usually does not get allowed are uses where you are exploiting someone else’s efforts to make money, or you’re otherwise just basically stealing their intellectual property. You will see the phrase “commercial use” used a lot in the case law and elsewhere, but then you will find that this particular phrase has a rather flexible application. It can be a total pain to try to guess, in advance, whether a particular money-making use of someone else’s copyrighted work is going to weigh heavily on the side of the dreaded “commercial use” or not. That said, to be infringement, it doesn’t necessarily have to be about money. The courts have found plenty of infringing uses that have nothing whatsoever to do with whether anyone was selling anything.
Back to copying other people’s art in the classroom. If what you’re doing is limited to a learning exercise, it’s usually fine. However, once you step outside the magic protective circle of the classroom with that awesome piece of copied art, the specter of copyright infringement can rear its ugly head. If you decide to sell it on mugs or T-shirts, or you do something else that involves you using this artist’s work outside the classroom lesson without permission, your suddenly not-so-friendly neighborhood contemporary artist may nail you with a very expensive infringement lawsuit. There is a lot of material on the internet discussing fair use, and examining the gray areas. If you think you may want to use “fair use” as your justification for using someone else’s work without permission, I recommend you find some articles that discuss what it is that you want to do in your situation, read them, and then save your research.
If you do get accused of infringement, one defense to infringement is “innocent infringement.” If you did the research, and you can show that you honestly believed your use of the copyrighted material was “fair use,” then even if you turn out to be wrong in the opinion of a judge, the penalties for innocent infringement are much lower than the penalties for willful infringement.
Fair use is about an underlying policy of furthering the public good. Our founding fathers cared a lot about the public good, and putting in place systems that benefit all of us. Accordingly, the big pattern I see, when I put all the case law together, is this: When courts assess fair use, they attempt to distinguish between (a) the liars who are trying to use fair use as an after-the-fact excuse to try to escape infringement penalties and (b) the people who make a good faith effort to limit their copying to the minimum needed to stay within the bounds of genuine fair use public policy. The courts are not ok with people who use other people’s work and then trying to escape infringement penalties by slapping together an after-the-fact fair use argument that only kinda-sorta applies.
So… do the research, understand the public policy behind fair use, and you’ll probably be fine.
Quotes by Carl Jung:
Here’s the deal with using quotes by Carl Gustav Jung.
According to Wickipedia, he was a Swiss psychiatrist who was born July 26, 1875, and died June 6, 1961. He’s Swiss, and I don’t pretend to know much about Swiss copyright law (that would be an “Ask a Swiss Copyright Lawyer” moment). With the caveat that if we have law in Switzerland or elsewhere in the world that says otherwise – in which case where it applies we should comply with it… Under U.S. law, anything Dr. Jung wrote before 1923 is in the public domain. You can use those before-1923 quotes in your art. Anything after 1923, it looks as though you
(1) have to check to see if there was a copyright notice, and
(2) find out whether the copyright notice was properly renewed.
If the answer is “yes” to both questions, then for 95 years after the publication date, there might still be heirs who own copyrights in those particular quotes by Jung, and those heirs might, possibly, decide to exercise their right to drag you into court if you infringe.
When In Doubt, Just Ask Permission:
The only people who can take you to court are the copyright holders. If you want to copy something, and another person owns the copyright, you can always just ask permission to use it. Many times, the answer is yes. Make sure you get the permission in writing, so you have a record of it. You don’t want to copy someone else’s copyrighted stuff, go to the trouble of asking for and getting permission, and then they get amnesia as soon as they start talking to their lawyers.
Attribution and Intellectual Honesty:
In the world of the written word, there can be penalties for failing to appropriately credit your sources. In academia, a little bit of familiarity with your school’s honor code can go a long way, especially if you can get kicked out of school for honor code violations. In the visual art world, there aren’t clear universal standards for crediting the art sources you copy, which in some ways is unfortunate. I, personally, like to see artists and photographers get credit for their contributions to our rich and varied visual art heritage. If you’re using someone else’s writing, even if it’s from the public domain, and even if you’re not in a school with an honor code, it is considered intellectually honest to credit the author.
I assume you are smart and honest enough not to do anything fraudulent like make it look like you are the artist and/or author when you’re not. Most jurisdictions have laws derived from common law fraud that can apply to artists. And, I feel compelled to mention, unfortunately, there is that rare person to whom it is not blindingly obvious that it is a bad idea to lie to the Copyright Office when they submit their registration package. Note that it is possible to get fined for lying on copyright registration paperwork, and if you end up in court bearing a copyright registration package containing a pack of lies, that can work to your disadvantage in a number of ways.
Sources and Further Reading:
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