5 ms·

I am not a lawyer, I am not your lawyer, this is not legal advice. > No creation of art is infringing Unfortunately it is very tempting to read section 107 as

by csours 3y ago

I am not a lawyer, I am not your lawyer, this is not legal advice. > No creation of art is infringing Unfortunately it is very tempting to read section 107 as you might read other text and assume that any one of the four parts of the test can protect you, but that is NOT how the law has been applied. You can be found to be infringing even without commercial exploitation. Each of the four parts of the test is evaluated and weighted with the other parts. https://www.copyright.gov/title17/92chap1.html#107 https://www.copyright.gov/title17/92chap1.html#107 > "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

anigbrowl 3y ago
Yes...non-publication won't bar a fair use finding. If you sit at home and make 100 copies of a work in the pursuit of developing your artistic technique, you're fine up to the point where you attempt to sell them or exploit your production commercially, eg making a youtube 'documentary' about yourself which leverages the fame of the original work to draw attention to your perfect imitation of it, but painted with a toothpick or something. This is after all a kind of publication. There isn't a default presumption of infringement, which is why you don't need to produce ID at the art supply store to buy brushes and canvas.
- saynay 3y ago
  More accurately, you are fine until you try to distribute them, or display them. Giving out free copies would not be commercial, but would definitely be a violation.
  - anigbrowl 3y ago
    Well it's commerce in the sense of 'look at me I'm so great at art-ing.' You're sharing them for social rather than fiscal capital. If you anonymously mailed them out and kept your mouth shut I doubt any resources would be spent to track you down, or (if they were) that you would lose in court.
- sandworm101 3y ago
  You are definitely not "fine". The infringement has happened. The fact that you aren't going to be "caught" and sued doesn't make everything legal. Ask any artists if you make and hang a copy of their work inside your own home. Ask Microsoft if you can copy their "art" for use in your own home.
  - deleted 3y ago
    [deleted]
  - willcipriano 3y ago
    If I have photographic memory do I need to license any artwork I see? Sometimes practical limits on laws are intentional. Tracing your favorite anime character is legally infringement but luckily, multinational corporations aren't allowed to enter our homes to make sure we don't owe them royalties for our kids artwork on the fridge. They can only do that for trading cards.
    - freejazz 3y ago
      No because having an image in your head is not considered a recreation of the work... it's not even remotely tangible.
    - sandworm101 3y ago
      In your brain? no. But stored in the memory of your robot dog? Yes.
  - shagie 3y ago
    https://en.wikipedia.org/wiki/De_minimis#Copyright https://en.wikipedia.org/wiki/De_minimis#Copyright > Courts will occasionally not uphold a claim to copyright on modified public domain material if the changes are deemed to be de minimis. Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis. It's not legal, just that its not worthy of the court's time. Drawing a copy of Mickey Mouse on your child's playroom wall is likely de minimis - just don't make viral videos of it or have playdates with Disney lawyers. https://thowardlaw.com/2021/06/copyright-infringement-but-for-de-minimis-doctrine/ https://thowardlaw.com/2021/06/copyright-infringement-but-fo... From the Second Circuit in On Davis v. The Gap: > The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on José de Creeft’s Alice in Wonderland sculpture. . . . When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement. https://www.lexisnexis.com/community/casebrief/p/casebrief-davis-v-gap-inc https://www.lexisnexis.com/community/casebrief/p/casebrief-d...
- atchoo 3y ago
  > eg making a youtube 'documentary' about yourself Would that not be transformative? Your product was the documentary. It wouldn't be something that could undermine sales of the original. There are plenty of youtubers painting Rothko knock offs. > leverages the fame of the original work Using another's fame isn't what's protected is it? That would require something more like a trademark. Can I not write a book called "Who ate Picasso's Guernica?" or some such?

by csours 3y ago

anigbrowl 3y ago

Yes...non-publication won't bar a fair use finding. If you sit at home and make 100 copies of a work in the pursuit of developing your artistic technique, you're fine up to the point where you attempt to sell them or exploit your production commercially, eg making a youtube 'documentary' about yourself which leverages the fame of the original work to draw attention to your perfect imitation of it, but painted with a toothpick or something. This is after all a kind of publication. There isn't a default presumption of infringement, which is why you don't need to produce ID at the art supply store to buy brushes and canvas.

saynay 3y ago
More accurately, you are fine until you try to distribute them, or display them. Giving out free copies would not be commercial, but would definitely be a violation.
- anigbrowl 3y ago
  Well it's commerce in the sense of 'look at me I'm so great at art-ing.' You're sharing them for social rather than fiscal capital. If you anonymously mailed them out and kept your mouth shut I doubt any resources would be spent to track you down, or (if they were) that you would lose in court.
sandworm101 3y ago
You are definitely not "fine". The infringement has happened. The fact that you aren't going to be "caught" and sued doesn't make everything legal. Ask any artists if you make and hang a copy of their work inside your own home. Ask Microsoft if you can copy their "art" for use in your own home.
- deleted 3y ago
  [deleted]
- willcipriano 3y ago
  If I have photographic memory do I need to license any artwork I see? Sometimes practical limits on laws are intentional. Tracing your favorite anime character is legally infringement but luckily, multinational corporations aren't allowed to enter our homes to make sure we don't owe them royalties for our kids artwork on the fridge. They can only do that for trading cards.
  - freejazz 3y ago
    No because having an image in your head is not considered a recreation of the work... it's not even remotely tangible.
  - sandworm101 3y ago
    In your brain? no. But stored in the memory of your robot dog? Yes.
- shagie 3y ago
  https://en.wikipedia.org/wiki/De_minimis#Copyright https://en.wikipedia.org/wiki/De_minimis#Copyright > Courts will occasionally not uphold a claim to copyright on modified public domain material if the changes are deemed to be de minimis. Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis. It's not legal, just that its not worthy of the court's time. Drawing a copy of Mickey Mouse on your child's playroom wall is likely de minimis - just don't make viral videos of it or have playdates with Disney lawyers. https://thowardlaw.com/2021/06/copyright-infringement-but-for-de-minimis-doctrine/ https://thowardlaw.com/2021/06/copyright-infringement-but-fo... From the Second Circuit in On Davis v. The Gap: > The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on José de Creeft’s Alice in Wonderland sculpture. . . . When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement. https://www.lexisnexis.com/community/casebrief/p/casebrief-davis-v-gap-inc https://www.lexisnexis.com/community/casebrief/p/casebrief-d...
atchoo 3y ago
> eg making a youtube 'documentary' about yourself Would that not be transformative? Your product was the documentary. It wouldn't be something that could undermine sales of the original. There are plenty of youtubers painting Rothko knock offs. > leverages the fame of the original work Using another's fame isn't what's protected is it? That would require something more like a trademark. Can I not write a book called "Who ate Picasso's Guernica?" or some such?