Despite working in a litigious society, both parties enjoy strong protections even when using someone else's art, said Robert Meitus, a musician and attorney at Indianapolis law firm Meitus Gelbert Rose LLP.
"Artists should not be scared," Meitus said during a February continuing education forum for attorneys sponsored by Rule 1.1.
Much of the concern has been sparked by a lawsuit still before U.S. District Court in New York.
Shepard Fairey and Fairey's Obey Giant Art Inc. sued The Associated Press Feb. 9 in a dispute over an image of then-presidential candidate Barack Obama.
Fairey filed the complaint after AP claimed Fairey's work, including the ubiquitous silk-screened Obama "Hope" images, was too close to a photograph taken by freelance photographer Mannie Garcia at the National Press Club in 2006. AP demanded credit and compensation for Fairey's use of the photo.
"Filmmakers, visual artists, authors, musicians and all these creative people feel very limited in drawing upon the wealth of created works," said Meitus, who represents artists. However, he added, "Creators are allowed to use pre-existing works often."
"Fair use" of another's work must take into account:
• the purpose and character of the use, including whether the use is for commerce or not-for-profit educational purposes;
• the nature of the copyrighted work;
• the extent to which another artist's work is used in the new work;
• and the effect of the use upon the potential market for or value of the copyrighted work.
Regarding parody, Meitus pointed out that the U.S. Supreme Court in 1994 ruled in favor of 2 Live Crew, whose song "Pretty Woman" included samples of Roy Orbison's "Oh, Pretty Woman." 2 Live Crew's song was determined to be a parody because it met all four tests, the court found.
Meitus emphasized that fair use shouldn't be confused with piracy, or whole songs, written works, or movies copied and distributed without the original artist's receiving credit or compensation.
Visual arts must be different from other works, he said. However, examples such as water scenes or boats are too broad to be considered similar enough to violate copyright law.
If a copyright case goes to a jury, jurors typically will hear expert testimony about elements such as characters, plot, setting, theme and style. However, sometimes the jury will hear subjective reactions of lay observers, which may include people off the street who have no concept of copyright infringement.
Meitus added that for artists to even file a lawsuit to protect their work, they must register with the U.S. Copyright Office, www.copyright.gov. An artist will have a better case if a work was registered before the alleged infringement. But if the work was registered after, lawyers may be more reluctant to take the case.
Also speaking at the forum was Sally Zweig, an attorney at Indianapolis law firm Katz & Korin PC.
Having represented clients who made large art purchases, Zweig said patrons should keep in mind that unless the transaction is put in writing, the artist owns intellectual property rights of his or her work — even of a commissioned piece.
Ownership may come into play if the patron wants to use the image in marketing pieces, or if the artist wants to create similar pieces. Or in the case of public art, like Gregg Hull's "Night Orchid," installed in 2005 as a partnership between Katz & Korin and the Indianapolis Museum of Contemporary Art, public art may define a building or business, which may affect the value of the piece in a way that might motivate the artist or owner to renegotiate terms of ownership.
To avoid pitfalls of art pieces with questionable provenance, Zweig suggested patrons buy from living artists they can meet.