Well my view is, if you’re going to do it be thorough. Since there are almost as many opinions on this as there are people, I’d like to start from the ground and work up from there. The ground in this case is the law, the final arbiter of any difference of opinion.
The usage of other’s images without permission apparently only has one defence in the industrialised west, and its called ‘fair use’.
I recently quoted chillingeffects.org in another thread. They’re talking American law, but EU and USA recently synchronized themselves better on this subject I understand, so:
Question: What is fair use? Answer: There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is “fair” is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107):
[ul]
[li] The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.[/li][li] The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.[/li][li] The amount and substantiality of the portion used. Copying nearly all of a work, or copying its “heart” is less likely to be fair.[/li][li] The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair.[/li][/ul]--------------------------------------------------------------
let’s examine what this means in practice, for you as an artist, in 3 different situations.
A. I use 3 different photos I find online (say 1 from a porn site, 1 from a wallpaper site, 1 from a professional photographer), merge them together, somewhat change the lighting, proportions, pose, and other details of some or all of them, to create a self-promotional piece. Then I get sued by one or all of the copyright holders of the original refs.
The finished work is transformative, non-commercial, fictional, and it’s serving a different audience or purpose than any of the originals. Even though I’m using “the heart” of each original, each only contributes to a smaller part of the new work. I obviously win the law suit.
B. I use cloned textures and other minor details from 5 different photos found online, to create a commercial work. I’m sued by one or more of the original photos’ copyright holder(s).
The finished work is very much transformative, still fictional and serving a different audience and purpose. I’m very far from using the “heart” of the originals. Even though it’s commercial, I win the lawsuit.
C. I use 1 photo from online and I don’t change it too much. At first it’s non-commercial, but later my work ends up on a book cover, and can therefore be said to have become commercial. Again I’m sued by the original photographer.
It is entirely possible I would lose this time, even though it’s a fictional work, because it’s not very transformative, I copied the “heart” of the original, and it’s commercial. It probably all depends on who the new audience is, for that book. The point is no one can say for sure until it’s too late - until the verdict is in. For this reason, it’s obviously best to avoid the C type of situation completely.
Anyone with better knowledge of these kind of situations, please chip in.
