Sunday Mailbag

Q: I know of several excellent caricature artists that, from time to time, copy celebrity photographs found on the web in “caricature” form and then sell these works as art-prints. Are these artists at risk of copyright infringement as “Derivative Works”? I understand that some protection is offered under the Fair Use exceptions involving parody/satire, but I’m not sure if this would offer a bulletproof defense in court … especially when I look at the art involved in the famous Rogers v. Koons case involving Derivative Works.

Of course, I have no idea whether these artists are getting permission from the source-photo’s copyright holder, which would make this a moot point. But, for the sake of discussion, I was hoping you might share your thoughts on this somewhat confusing subject.

A: Copyright, Trademark and Right of Publicity laws can be pretty confusing… which is which, and what applies to what? What exceptions exist? Copyrights refer to the rights to reproduce a piece of intellectual property, like a photo, drawing, painting, audio recording, video, some form of writing like a book, article, etc… basically anything someone creates using their brains or talents. Trademarks protect the use of a specific image, word or name that identifies something as being from a company or other entity, and laws exist to prevent others from using that trademark or one similar enough to cause confusion. Right of Publicity is the right of a celebrity to protect the value of their identity and fame for things like products, advertising and endorsement. Exceptions to these laws include things like Fair Use, which is the right to use copyright material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.

The term you are talking about, “Derivative Work”, describes a new, original piece of work that incorporates significant elements of an exisiting, copyrighted work. Examples of this would be making movie based on a book, remixing a song using different instruments, or doing a sculpture or painting based on a photo. In the case of derivative works, the new work is really just another version of the original work… maybe with a new spin on it by the creator of the derivative work, but still relying primarily on the copyrighted work it’s based on.

If a caricaturist does a caricature based on a single photo and the person who owns that photo’s copyright objects, a Fair Use defense would not apply. That’s because the Fair Use aspect of the caricature is about parody and making fun of the subject or some aspect of the subject’s work or industry… not the photo itself. The photograph is not being parodied, the subject of the photo is. The claim of the photographer would be that the caricature is a derivative work, as you rightly suggest. In this case, the main defense of the caricaturist is that is is not derivative but a totally original work. This is based on the idea that the new work is sufficiently changed to be unrecognizable as the original work it was based on, and that new, original concepts and ideas were applied to make it unmistakeably the work of the new artist. That sometimes holds true and sometimes does not. Yes, the caricature is based on a photo, but by it’s very nature caricature is “transformative”, meaning it’s changed significantly from the photo it is based on… otherwise it wouldn’t be a caricature, would it?

A “Transformative Work”, like a derivative work, incorporates elements of another copyrighted work in it. Unlike a derivative work, it is considered a totally original and copyrightable piece of work. At what point does a work become “transformative” instead of “derivative”? that’s the big question. There are no hard and fast rules. In general terms, in order of a work to be considered transformative it needs to have been changed enough from the original and to have become unmistakeably the work of the “new’ artist. The most famous art example of transformative work would probably be that of Andy Warhol, who used copyrighted photos and trademarks in his art but injected his own style and concepts into them to make them sufficiently transformative to be considered original works.

It can be a crapshoot in court to demonstrate whether a work is sufficiently transformative to be original as opposed to derivative. In the case you cited, Rogers vs. Koons, the sculptor’s work was found not to be sufficiently transformative (making the puppies blue and adding some flowers in the hair of the people didn’t do it for the court). There are often percentages mentioned as it pertains to the courts and transformative works: a work is transformative if it is 20% different, etc… 20% of what? Mostly I think works being examined as being either transformative or derivative must pass the “sniff test”… if the average Joe looks at it, do they mistake it for the original work, or see it as something completely different? In close cases, one court may decide one way and another court decide another way.

In the case of caricature, I think you’d have to do a something pretty close to a straight portrait copy of the photo to get the piece labeled a derivative work. Like I said, by it’s very nature caricature exaggerates and transforms a subject into the unique version of the artist. I would be very surprised if something that was clearly a caricature was ever found to be a derivative work by the courts. It’s much more likely a caricaturist would be taken to task by the subject of their work over Right of Publicity or copyright issues.

Thanks to Jack Hunter for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!