Is this type of photo manipulation still violating copyright law?

Question

I am a photo student and I am doing a photo series on contemporary art. I plan to take pictures of contemporary art from printed books (photo of a published photo of an art work). And I will be cutting, cropping, and putting the art work in a completely different setting. This setting will be something I stage or photograph myself.

This series will not be sold; it will be used to criticize the flow of the contemporary visual art. I plan to list all the photographs and the book I obtained the photographs from as part of the series. I just want know if this is ok with copyright laws.

I reside in the US

Answer 1

Legal Discalimer

The following is for general information purposes only and should not be taken as legal advice for any particular situation. If you have a specific concern you should consult with an attorney familiar with the relevant issues in the jurisdiction in question.

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Since you did not specify in your question, we do not know in what country you are planning to do your project. The following is based on the assumption you are in the United States.

From Wikipedia:

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

The "four factors" referenced in the above quote determine whether use of copyrighted content falls within the scope of fair use.

• Purpose and Character: Is the use transformative or merely derivative? The former is considered fair use, the latter is not. What new development does the use add to the arts, music, or literature?
• Nature of the copied work: Facts, ideas, historical events, etc. belong in the public domain and are separate from copyright law. A particular expression regarding those facts, ideas, events, etc. is what may be protected by copyright. The classic case for this test is the Zapruder film of the assassination Of J.F.K. Time magazine held the copyrights to the film, yet the courts ruled that they could not prevent still images from the film from being included in history books that discussed the J.F.K. assassination.
• Amount and Substantiality: How much of the work is appropriated, not only in terms of a percentage of the whole but also in terms of the significance of what is used.
• Effect upon the work's value: Will the use of copyrighted material result in harm to the original work's owner? Will it diminish the value of the original work by providing a direct market substitute? In general, copyright does not shield a work from parody or adverse criticism that might result in diminished value of the copyright holder's work. It does shield it from a derivative work that replaces it in the marketplace.

In order for a copyright holder to obtain a judgement as a plaintiff, they must show that a prima facie case of infringement by the defendant occurred against their copyrighted work. Once the prima facie infringement has been established, the burden of proof is on the defendant to show they fairly used the copyrighted content. Many times the mere threat of legal action will cause the potential defendant to abandon the fair use of material, or agree to pay a licensing fee, in order to avoid the legal expense necessary to defend their legitimate use of it.

Answer 2

As mattdm suggests, fair use has no clear cut rules, so we couldn't possibly give a definitive answer. A lawyer probably couldn't give an opinion without seeing the finished work.

The specific parts of the fair use doctrine you need to look at more closely are whether your work would be considered derivative or transformative, and whether it can be considered parody or satire.

Whether your work is transformative depends on how much your work extends or changes the meaning of the original work, or puts it in a different context. It's a matter of whether you are exploiting other's work, and that's a very thin line, especially when yours is a critical commentary.

Cutting and cropping would, in itself, seem simply derivative. However what you then do "putting the art work in a completely different setting" might make it transformative. That's one judgement call.

Parody vs satire is very important, in that your work is critical. Broad satire, where you are generically using works, but could have easily used other works, may not fall under fair use. In other words, if you are being critical or defamatory, and the original artist might reasonably ask why you picked on his work, a judge might agree.

Parody, on the other hand, is poking fun specifically at that work of art, and if the reason you chose that work (or a specific group of works) is obvious, then you would seem to be more protected by fair use. This is a second judgement call, but probably clearer that the first.

The fact that you are doing this for artistic commentary and not selling the works, is a big plus in using the fair use defense.

A good example involving photography: Leibovitz v Paramount Pictures where a commercial movie poster closely copying a famous Vogue cover was found to fall under fair use as parody.