Copyright Infringement: Flattery and Theft

Copyright Infringement

The term copyright infringement is used in regard to the unlawful copying of someone else’s material without permission. It’s generally associated with the music industry. There have been numerous music related copyright infringement cases such as Napster, Michael Bolton vs. The Isley Brothers, and Viacom vs. You Tube to name a few. However, in the art world, imitation is often considered a form of flattery and it is rare for artist to sue each other according to Muralist Nathan Mauden. He says, “Right now I am not worried about it.  I think the more visible you become the more easy it is for someone to steal your work.” Nathan went on to say, “I think it’s weird within the art world. It’s different. There’s artist who’ve actually photographed another artist photograph, which sounds really strange and then put that up as artwork as a weird kind of commentary on media and remediation. Nathan says no one was ever sued. The difference he feels is because it’s artists. Nathan says, “In the Fine Art world, we kind of want the freedom to copy another artist work.” Nathan pointed out when two different kinds of media are mixed then there could be a clash. Case in point is the lawsuit by The Associated Press (AP) against Shepard Fairey.

Clash of the Media

CNN reported in 2009 on the case brought by AP against Artist Shepard Fairey’s “Hope” depiction of President Barack Obama in the colors of the American flag. According to the CNN news report, Fairey used a 2006 AP photograph and deserved credit and profit from Fairey for its use. Fairey contended he was entitled to use the image under fair use section of the Digital Millennium Copyright Act of 1998 (DCMA). He maintained he only used certain elements of a photo that also included Hollywood actor George Clooney. Fairey also felt since he did not profit from the photograph (all the money and the image was donated to the Presidential campaign) that he did not violate AP’s rights. The case was settled out of court but not to Fairey’s honor as an artist. He admitted it was a different photo used and he was sentenced to community service and ordered to pay a fine.

Protection in the Digital Age

Concern about copyright infringement in the digital age became increasingly common. The ratifying of the DCMA slowed down the instances of copyright infringement but has not eradicated them all together. The free-flow of information on the Internet continues to leave artist, musicians, and journalist vulnerable to infringement. Knowing how to protect ones self is key. Retired Technical Writer Dinah Newberry would know because she once submitted advertising copy to a retail store but was rejected yet, her work showed up in their ads anyway. She was never paid for her work. Dinah put it succinctly by saying, “When you are taking a look at potential copyright infringement, you have to look at both the creative side of what is there today and what might be there tomorrow.” Dinah gave an example of Artist Jackson Pollack and how he saw the potential of his work and took measures to protect his work. She says, “You never know what the potential is. So, a lot of creative people think with one side of the brain where as, you have to use the other side and be analytical and protect yourself and that’s something that isn’t always done except in hindsight and that’s unfortunate.” On the fortunate side, writers, photographers, musicians, and artist can now protect themselves easier by visiting the Electronic Copyright Office and filing out the registration application. Materials are automatically copyrighted the minute they are published but consider the loss if this step isn’t taken. Registering will enable people to file infringement charges and recover damages and attorney’s fees. Protect yourself and protect your work.