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Art Law: Copyright

Northeastern University Resources

Guide to Copyright and Fair Use (Northeastern University Library)
Overall guide geared towards research and education.

Fair Use

Legal issues regarding copyright in the visual arts often revolve around the concept of fair use, as defined in Section 107 of the U.S. Copyright Act. There are 4 factors to consider when judging whether use of an existing work falls under fair use protections:

1. The purpose and character of the use, including whether it is educational or commercial
2. The nature of the copyrighted work
3. The amount and substance of the portion used
4. The effect of the use on the potential market for or value of the work

Further information can be found at the U.S. Copyright Office's Fair Use Index here.

Regulations, Statutes, and Legislation

Regulations

Regulations regarding patent, trademark, and copyright regulations are codified in Title 37 of the Code of Federal Regulations. Full text of Title 37 is available from the U.S. Copyright Office or in the annotated versions of the CFR available via Westlaw or Lexis.

Statutes

The Copyright Act of 1976 and all legislation amending it is codified in Title 17 of the United States Code. You can find the text of Title 17 via the U.S. Copyright Office, or in Westlaw (United States Code Amended) or Lexis (United States Code Service). 

Keep an eye on proposed legislation through resources such as Congress.gov and GovTrack. You can also follow copyright-specific legislation via the U.S. Copyright Office tracker or the Copyright Law Reporter (CCH), available via Westlaw.

 

Case Law

Copyright cases are numerous, especially as new technologies develop. Below we have listed a handful of the most frequently discussed and cited decisions regarding the visual arts, in chronological order.

 

  • Burrow-Giles Lithographic Co. v Sarony, 111 U.S. 53 (1884)
    Held that photography goes beyond a mechanical process and has artistic merit, and thus has protection under U.S. Copyright Law.
  • Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)
    Discussed issues of fair use; decided in favor of the original artist (Rogers). Legal discussion of the concept of "parody."
  • Hoepker v. Kruger, 200 F. Supp. 2d 340 (2002)
    Held that copyright of the original photograph in question was not violated by its use in a collage.
  • Cariou v. Prince, 714 F.3d 694 (2013)
    Original (2011) decision held that Prince infringed on Cariou's copyright regarding his photographic works and that Prince's pieces should be destroyed. 25 of 30 counts were reversed on appeal, with the remaining 5 remanded to the lower court and then settled between the parties.
  • Morris v. Thierry Guetta, 2013 U.S. Dist. LEXIS 15556 (C.D. Cal. 2013)
    Held that the artwork in question was not sufficiently transformative and therefore did not fall under fair use protections.

 

International Regulations

Copyright protections afforded to artists and other creators vary widely depending on the national laws where you are seeking protection. For an overview of international treaties and conventions on copyright, see the U.S. Copyright Office's International Issues site.

Secondary Sources

The U.S. Copyright Office regular publishes and updates circulars intended to explain copyright protections to a general audience. You can find them online here.