Re: ELDRED

on 1/28/03 9:03 PM, cni-copyright[_at_]cni.org at cni-copyright[_at_]cni.org wrote:

Michael W. Carroll wrote:

May I ask whether you think the derivative works presented at www.illegal-art.org are likely to harm the economic interests of the creators of the underlying works?

Hello Michael,

Well, I took a quick glance. IANAL, but I'd guess, from looking at those images, that the biggest legal questions would arise over trademark and publicity rights. As far as copyright is concerned, there are a couple that might not pass muster, but most look like parody Fair Use exemptions to me. If they were competing in the same marketplace, I doubt that buyers would be forced to decide. I think they'd appeal to a different clientele. Sort of like Michael Jackson and Weird Al versions of Beat It / Eat It. Some customers might want to buy both, just for the contrast. So, maybe, in that event, the original artist could assert his right to do his own darned
derivatives. However, I wouldn't think that the courts would agree in the case of parody. Of course, someone might argue with me about that and a court might uphold their argument. That's the trouble with Fair Use. It's too iffy.

A hypothetical example:

Say I do an illustration using a similar pose to that of a painting entitled Little Flower Girl. I do not do the same poor, little, flower girl, but the pose
is reminiscent because I'm inspired by that painting to do a completely different take on that artist's vision. Instead of being sad, my little girl is
smiling with an expectant look. Instead of a dirty face and scraggly dishwater blond hair, she has lovely golden tresses. Instead of rags, she wears beautiful clothes. My intent is to convey the way she sees herself. Her fantasy is that she is really a princess whose father's men are searching
for her. She stands by the roadside selling wildflowers so she can be found.

Is that parody or a derivative work? Does it unfairly compete with the other
painting?

I know it would be an infringement if my pose were an exact copy and other elements like the child's face, the setting and color palette were also copied
from the other artist's work, but is a similar pose alone an infringement? I
think I'd feel safe publishing my version if I knew it would be considered a parody. However, I don't know whether parody applies only to humorous or satirical comment or whether the courts interpret it more broadly. In my Little
Flower Girl example, my intent was not to poke fun nor ridicule satirically which
is what my Funk and Wagnalls calls parody. Since I can't be sure how the courts would rule, and (for the sake of argument) let's say that after asking
permission I never got a response from the original artist, I might decide that
I don't want to riskgetting sued and therefore, never publish my work because
Fair Use is too darned risky for someone of my limited means.

I just wish there were some cut and dried way to define Fair Use.

What do you think?

Linda Gruber

............
Previously Linda Gruber wrote:

It's not about protecting Disney. It's about allowing capitalism and copyrights to work as the engine of progress. I think there is a greater need to maintain balance since we've entered an age in which everyone can be a worldwide publisher/distributor of currently valuable works that enter the public domain. Received on Fri Jan 31 2003 - 11:52:35 GMT