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Can I Use That? Part 2: Remix culture, the Internet and copyright law

A recent article in The Atlantic addresses a scenario that is becoming more and more common for artists: Someone makes a remix of another's art. As described in the article, an urban planner created -- and signed -- a mural using an artist's online digital drawing of Michelle Obama as an Egyptian Queen. The original artist learned about it via word-of-mouth after the mural's installation.

Did the muralist rip-off the original artist of the Obama drawing? When is a remix considered misappropriation and a violation of intellectual property laws? When is it okay to copy, share and re-use someone else's artistic vision? At what stage does it go too far?

What copyright law says about remixes

In a previous post, we talked about the legality of using someone else's work. When something falls into the public domain, it is fair game for use. In today's Internet-culture, however, it is easy and common to neglect verifying or even actively ignore whether work is in the public domain before making memes or other remixes of that work.

Copyright law seems straightforward: The moment someone puts their work into a fixed medium (putting it on canvas, for example), they become the owner of the copyright. They are the only one who has the right to make copies of it, distribute it, display it or make derivative works from it.

But it gets more complicated than that.

There is a section in the Copyright Act that permits an affirmative defense of "fair use" of copyrighted work. It is important to note that even a fair use is technically copyright infringement. It is just that Congress and the courts have determined that some infringements are permissible, and these are the fair uses that persons may make of others' artistic works. Fair uses include purposes such as journalism, editorial comment and education, among others.

When judges determine whether an infringement is protected by the fair use doctrine and the affirmative defense it offers, they will consider how and how much the original work was transformed. Questions they may ask include:

  • Is the remix used for profit (commercial)?
  • Was the original work significantly changed? Was all or part of it reproduced?
  • Did the author receive attribution for the work?
  • Is the remix a parody?

In the case of The Egyptian Queen, the Michelle Obama drawing that later became a mural by the hand of another artist, a court would likely consider the work non-commercial. It will need to determine whether an exact copy in a different medium constitutes reproduction and whether the artist should have received attribution.

Okay, say it's legal. Is it moral?

Let's say the law permits use of the work under the fair use doctrine or another legal doctrine (such as the first sale doctrine). Is it ethical to remix someone else's copyright-protected work? On the one hand, it could be seen as a compliment to the original artist and a furtherance of their brand (if you provide attribution). On the other hand, the original artist could consider it theft, particularly if your compilation receives more attention than the original artwork.

The last thing you and your reputation need is an angry fellow artist spreading negative information about you on Facebook and other social media platforms.

So what do you do?

Laws are continually struggling to catch up with technological advances that open new avenues of creation and remixing. Similarly, society has yet to decide whether remixing is ethical or a violation of the original artist's rights and identity.

If you are considering using all or part of someone else's work in your next project, speak with a lawyer who specializes in working with independent artists. A lawyer can help you conceive of all the potential issues (legal, moral/ethical, business/monetary, etc.) that might arise. Together, you can consider all the factors and develop a plan to execute your vision that 1) is legal; 2) is ethical; and 3) fairly compensates the artists on whose shoulders you might stand.

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