One area of copyright law just about everybody gets mixed up is the weird overlap between “transformative use” and “derivative works.” This one is a bit complicated, so let’s start at the beginning, with our ol’ pal the Copyright Act.
The Copyright Act protects artists by giving them a bunch of exclusive rights in the works they create. See 17 USC 106. Most of them are obvious – such as you can’t sell products with my art on them without my permission; but some of them are not – such as you can’t create a work based on my work without my permission. The first right (i.e., the distribution right) is easy to untangle. The second right (i.e., the derivative work right) is not.
Consider the Prince. In Cariou v. Prince, a a photographer sued an “appropriation” artist who basically printed a couple of dozen of the photographer’s photos and then and doodled over them with some blue paint. After doing so, he was all like, “Hey, I created a new work.” He got sued, and the district court said, “No chance, you created an unlawful derivative work.”
Amazingly, though, the appeals court reversed the district court, finding that most of the doodled-on photographs were protected by the “fair use” doctrine because they represented a “transformative” (read: greatly changed) use. This ruling was most likely wrong, and has been heavily criticized. It’s wrong because it is pretty clear that the doodled-on photographs were derivative of the photographs and thus violative of the artist’s exclusive right to create derivative works from his own artwork.
But, it certainly underscores a tension between (a) the exclusive right of an artist to create new works based on their prior works, and (b) the lawful “transformative” use whereby a second person “transforms” an underlying work to create a “new” and legal work.
That tension is apparent in today’s submission. Are these works unlawful derivative works (because they are based on an underlying work) or are they lawful “transformative” works because so much new expression and value has been added?
-ATTORNEYSCOTT COMMENTARY (scott@copyrightLA.com)
An artist set up a Kickstarter to fund his sale of his knock-off art. He is trying to sell both clothing and prints bearing artwork that is copied from pre-existing work. He simply makes the straight lines squiggly and tries to pass it off others’ work as his own. His Kickstarter (now cancelled) shows the multiple copies. There are more where this came from, but below are .GIFs of some representative examples.