The Artful Jurist

I did a little volunteer work this past weekend at Washington's "Artomatic" event, which features seven floors of works by the area's visual artists. My contribution (since I'm not a visual artist) was to help answer legal questions at the desk set up by the Washington Area Lawyers for the Arts.

There were no restrictions on what kinds of questions people could ask us. But, for the most part, there was one issue that the visual artists wanted to know about: Can I get into trouble if I incorporate someone else's image into my own art?

It's an excellent question, and one I'm afraid I couldn't possibly do full justice here on the blog. But let me just say that I'm pleased to know that visual artists are at least thinking about this.

Today it has become so easy just to click and download that wholesale appropriation of images has become ubiquitous. And most of the time people don't even stop to think that there might be any rules against this.

But the laws of copyright apply even to digital images on the web. If I put a photo online, that doesn't mean I've given it over to the public domain. Assuming I'm the one who took the photo, I still own its copyright, and, technically, I'm the only one who's allowed to copy it or authorize a copy of it. Downloading an image from someone else's web site to your own computer is making a copy.

Now, to get back to the question of appropriating someone else's art as part of your own...Yes, you could infringe someone's copyright by doing that if what you create out of that appropriated material isn't transformative enough to make it, on the whole, something an average person would view as a totally different work. How much is enough? There are no absolute rules about this, and, if it went to court, it would be a fact specific analysis that would decide it.