US Copyright
under the "fair use" doctrine of copyright law,
parodies which incorporate part of a copyrighted work
in order to criticise or comment upon that work are protected.
Copyright law permits a copier to intentionally change an existing
image sufficiently in order to avoid infringement.
[FN54] Merely using an original work as a model,
template or inspiration does not by itself constitute an infringement.
[FN55] In fact, courts have suggested that,
as long as the second work is not substantially similar to the original,
it may be appropriate to permit those who copy visual images
(as opposed to literary works) to make substantial modifications
to an original in order to avoid infringement.
The manner in which the copier uses the original work
is also significant in the fair use analysis.
Existing law recognises that sufficiently "transformative"
uses of an original qualify as a fair use.
One of the most powerful creative tools for altering images
is the new-found ability to transform the meaning
of existing images by placing those images into a new context.
Computer artists may therefore claim that placing an existing work
(or a portion of an existing work) into a new context transforms the original
and is a fair use.
Analysing whether a particular use is sufficiently transformative
to qualify as a fair use is highly fact-specific,
and depends upon an analysis of all four of the fair use factors.
There are certainly some situations in which digitally recontextualizing
an image may be sufficiently trans-formative to constitute a fair use of the original.
For example, using digital technology to parody an original work appears
to be a strong candidate for fair use.
Distorting, cutting and pasting, or otherwise changing images for the purpose
of making a humorous or critical commentary upon the original work can be
sufficiently transformative to constitute a fair use,
even if the parody is created for a commercial purposes.
Perhaps the most relevent exception to copyright protection is
107 of the Copyright Act, the "fair use" exception.
Under fair use doctrine, parodies that incorporate part of a
copyrighted work are protected if they are intended to criticize
or comment upon that work are protected.
If those who distort copyrighted works are engaging in social criticism
(and perhaps even if they are not), they may be engaging in "fair use."
One of the rights accorded to the owner of copyright is the right to reproduce or
to authorize others to reproduce the work in copies or phonorecords.
This right is subject to certain limitations found in sections
107 through 118 of the copyright act (title 17, U.S. Code).
One of the more important limitations is the doctrine of "fair use."
Although fair use was not mentioned in the previous copyright law,
the doctrine has developed through a substantial number of court decisions over the years.
This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction
of a particular work may be considered "fair,"
such as criticism, comment, news reporting, teaching, scholarship, and research.
Section 107 also sets out four factors to be considered in determining whether
or not a particular use is fair:
the purpose and character of the use, including whether such use
is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation
to the copyrighted work as a whole;
and
the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between "fair use" and infringement may be unclear
and not easily defined.
There is no specific number of words, lines, or notes that may safely be taken without permission.
Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use:
"quotation of excerpts in a review or criticism for purposes of illustration or comment;
quotation of short passages in a scholarly or technical work,
for illustration or clarification of the author's observations;
use in a parody of some of the content of the work parodied;
summary of an address or article, with brief quotations, in a news report;
reproduction by a library of a portion of a work to replace part of a damaged copy;
reproduction by a teacher or student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or reports;
incidental and fortuitous reproduction, in a newsreel or broadcast,
of a work located in the scene of an event being reported."
Copyright protects the particular way an author has expressed himself;
it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner
before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be
avoided unless the doctrine of "fair use" would clearly apply to the situation.
The Copyright Office can neither determine if a certain use may be considered "fair"
nor advise on possible copyright violations.
If there is any doubt, it is advisable to consult an attorney.
FL-102, June 1999
Australian Copyright
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