Violating copyright for fun and profit
A question I get asked a lot is, “How come you haven’t gotten sued?” Another thing I see a lot of is artists worrying about getting sued (for example, in relation to comic companies cracking down on fan prints at conventions). I also see a lot of terrible mash-ups whose makers by all rights *should* be sued. So for all these reasons I thought I’d put together everything I know on the subject.
Parodies and mash-ups are nothing new
People have been re-appropriating culture since the days of Mr. T, perhaps even longer. They’ve been getting away with it because parody (using elements of a work to comment on or satirize the work) is a legally recognized form of protected speech, at least in the United States.
Not all mash-ups are parodies
Check out this ad I’ve seen in my Instagram feed:
Is this.. funny? Trying to make some point? BB-8 is like asteroid B612 because… they’re both round? If you have nothing to say, what you’re making isn’t a parody. Here, two things that have meaning have been mashed together in order to create a new thing that somehow has less meaning than either of the original two things.
All parodies are original
This may sound counter-intuitive. How can something that uses existing images and iconography be original? “Original” in a copyright sense refers to the uniqueness of an idea. Are you combining existing things in a way that creates new meaning? Meaning that is different from the intention of the original thing? Congratulations, you have an original idea.
“Original work” also makes no distinction between “hand-drawn” or “hand-written” and a copy. An idea is either yours, or it isn’t. If it’s yours, you can reproduce and sell it as many times as you want.
Copyright protects ideas, Trademark protects how ideas are packaged and sold
Copyright applies to the content, trademark is for the wrapper. Sometimes these two things line up evenly, and sometimes they don’t. I’ll use something I made as an example: many years ago I adapted an episode of “Law & Order” into coloring book format. I took copyrighted material, and turned it into commentary by placing it in a new form and context. Totally legit and legal!
However, if I were to put an official “Law & Order” logo on the book and place it in stores, I’d be running into trouble. Consumers could arguably be confusing my speech (commentary on “Law & Order”) with the speech of Dick Wolf/NBC/Universal (“Law & Order”). I would be violating their trademark.
There isn’t a single dominant image. There’s a Batman and a Care Bear, but no one would look at this and think it was a Batman book or a Care Bear book.
A Cease & Desist carries no legal weight…
It’s true! It’s not a document that gets filed with any court. It’s the legal equivalent of your neighbor knocking on your door telling you to turn the music down before they call the cops.
… but anyone can send a Cease & Desist at any time, over anything
This is also true. Your silly mash-up could be 100% legally defensible and you could still get a C&D. It’s up to you if you want to ignore it, or fight it, or follow it (but I would totally recommend consulting a lawyer before you decide which of those things to do).
If you do end up in a courtroom, that’s when you can finally use Fair Use as an affirmative defense. Fair Use is not, I’m sorry to say, a forcefield that magically protects artists from lawsuits. Rather it’s a specific response to someone accusing you of violating their copyright, i.e., “You copied me!” “Yes I did, but it was a fair use [parody, commentary, etc.]” Shepard Fairey famously biffed this when he pretended (lied to the court) that he didn’t copy that AP photo for his Obama poster, when all he needed to say was, “Heck yeah I used the photo, but I also changed its meaning. It was a fair use.”
The “five changes” thing is bullshit
You may have heard something along the lines of, “If you make five changes to an image, it’s a no longer a copy.” It doesn’t matter how many changes are made, or whether those changes are big or small. What matters is the transformative effect of those changes. Do they change the purpose or function of the original? The function of the original photo that Fairey copied is informational: it depicts a person in a certain place, at a certain time, doing a certain thing, for the purposes of news reporting. One would not necessarily look at that original and think “hope,” but that’s what Fairey did. And by adding text and changing colors, he made sure that everyone else who looked at his image thought “hope” as well. He added his own viewpoint and transformed the function of the image from reporting to propaganda.
That’s really what this all comes down to: don’t just regurgitate what you see, but put yourself into your work. That’s true of all art, whether you’re painting a seascape or a Batman.
