Can You Reproduce a Copyrighted Work in Another Painting?

Ask the Experts: Legal Questions Answered for Artists

by Leonard D. Duboff

Art Within Art: Can You Reproduce a Copyrighted Work in Another Painting?

Q. Can a copyrighted artwork, such as a painting or print, be reproduced as a smaller element in another work of art without violating copyright law? ~John Walker, Coaldale, CO

A. The copyright law protects the original and any substantial copy of the original. Reproducing a copyrighted work as a smaller element in another work of art, whether as a stand-alone piece or as part of another work, would ordinarily be an infringement because the reproduction would be a substantial copy of the original work.

If, however, the copying is considered fair use, then it would not be an infringement. In order to determine whether an unauthorized copying is a fair use, as that term is used in the copyright statute, it’s necessary to consider at least the following four factors:
1.    the nature of the original work
2.    the nature and purpose of the use
3.    the extent of the copying and
4.    the effect the copying would have on the copyright owner’s pocketbook.

Because fine art is not intended to be copied as quotations in a book of quotations or as clip art on a clip art CD-ROM might be, the first factor—the nature of the original work—would not be favorable for the would-be copier. The second factor—the nature and purpose of the use—might be favorable because the copied work is a smaller element in a larger work. That use might be what is known as a productive or transformative use. If the entire work or the most important part of a larger work were copied, the third factor—the extent of the copying—would not be favorable to the copier. Finally, copying without purchasing the right to reproduce the work would suggest that the copyright owner is being deprived of appropriate compensation; hence, the fourth factor would not be favorable to the copier.

Evaluating the factors, there’s a good chance that the proposed reproduction wouldn’t be deemed a fair use.

Unfortunately, there are few clear lines drawn with respect to what constitutes fair use and what does not. Although there are some cases finding the reproduction of a copyrighted piece of art as a smaller part of another piece of art to be a fair use, others hold that such use is an infringement. It would, therefore, be prudent to obtain permission to use the work before incorporating it into the new work of art.

More Questions and Answers on Copyright Law
Attorney Leonard D. DuBoff explains some of the nuances of artists’ rights.

Note: Copyright laws are subject to change. These articles reflect the laws in effect at the time they were written.

 


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