The FLAG Art Foundation is a non-profit exhibition space for contemporary art. The FLAG Art Foundation’s Disturbing Innocence exhibit is open now and will run through January 31, 2015. The show screamed copyright law to me and thus this post was born.
This exhibit features 50 artists whose modern art distort idealistic childhood images. The pieces in this collection are deliberately shocking. Scrolling through photos of this art, you may notice that the works of art make use of existing trademarks and copyrights that the mark holder may not authorize.
Is it acceptable for someone to make money using the intellectual property of others?
Do mummified Barbies or a hairy Ken infringe Mattel’s rights? Is it acceptable to use customarily PG works of others in sexualized creations? Or a Nike swoosh along with Nike branded sneakers in art? Maybe yes and maybe no.
Copyright and trademark law allow for defenses to infringement. For questions concerning alleged infringement, a U.S. court would consider the defenses to infringement.
The Copyright Act allows fair use as a common law defense. Fair use protects secondary works from copyright infringement claims if the works borrow from original works in particular ways. Section 107 of the Copyright Act provides that the fair use of a copyrighted work, for purposes such as criticism, is not an infringement of copyright. Fair use is an affirmative defense, so the burden of proof falls on defendants to justify the alleged copyright infringement.
A 4-factor test can be used to determine whether the use of someone else’s IP in a new work is a fair use:
(1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) nature of the copyrighted work;
(3) amount and substantiality of the portion used in relation to the work as a whole; and
(4) effect of the use upon the potential market for or value of the copyrighted work.
According to the Ninth Circuit, the fair use doctrine confers a privilege on people other than the copyright owner, “to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.” The doctrine is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public’s interest in the dissemination of information.
If you are interested in further reading on Fair Use, below are three great cases to brush up on:
Mattel, Inc. v. Walking Mountain Prods: In Mattel, the court ruled that works by Forsythe were a parody of Barbie and deemed highly transformative. Here photographer Tom Forsythe, who produces photographs with social and political overtones, developed a photograph series entitled “Food Chain Barbie.” The photographs depicted Barbie dolls in various absurd and often sexualized positions. After four years of litigation, this case was ultimately ruled fair use.
SunTrust Bank v. Houghton Mifflin Company: In SunTrust Bank, a copied work was found to be transformative. Here the book “Gone With the Wind” (GWTW) was parodied by an African American author in a work titled “The Wind Done Gone” (TWDG). Here the court stated that “TWDG is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW.” When weighed against each other, the two sub-factors ended falling in favor of the new work: it was transformative enough to illustrate a new expression, so the fact that it was made with a commercial value did not preclude it from proving this factor present. The more transformative the new work, the less will be the significance of other factors.
Rather than rely on fair use, you may be better off requesting a license for uses that copyright owners are likely to allow. Otherwise, keep in mind that fair use occurs when someone uses a trademarked term for its primary definition and not its secondary meaning.