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When the Internet Meets Copyright
The Law Gorgeous - Episode 2
Art Expert 23 Feb 2021

The Law Gorgeous is a new column by TheArtGorgeous where columnists and art lawyers Alana Kushnir and Yayoi Shionoiri answer your art world questions.  Email your art x law worries to [email protected]



Post 2
In this digital age, how do I sample, borrow and adapt images from the internet into my artwork?

Just because content is online, doesn’t mean it’s a free-for-all. Unfortunately, the “but Richard Prince does it” excuse is probably not going to cut it. I know, this can be a pretty tough pill to swallow especially for our cutting-edge artists out there. The reason is because copyright protection of a work does not automatically disappear when you publish text, images, video and sound on the internet. If you own the copyright in the content, then you can decide how you would like people to use (or not use) it.  

So what to do, you may ask. Will this not destroy your chances of being the next Sturtevant? One of the best ways to avoid copyright infringement is to ask permission to use the content from the copyright owner. Found an image on Insta you like? Or from a Google image search perhaps? These days, it’s usually pretty easy to make contact with the publisher of the image – send a DM or email them. If they are the copyright owner, or have the right to grant permission, ask if you can use it. You’ll probably have better chances of getting the OK if you give them a bit of background on yourself, and what you intend to use the image for. You might be asked to pay a fee for the permission (in legalese, that’s the “licence”) that they give you. 

In most countries, copyright law does have some exceptions to infringement. However, be warned – these are exceptions to the general rules above, and vary depending on what jurisdiction applies to your circumstances (i.e. the legal authority that applies to your particular geographic area). For example, US copyright law includes exceptions based on whether a use could be fair, and one of the factors that courts may take into consideration is whether the use is “transformative” i.e. where the material sampled/borrowed/adapted has transformed the original work, and has added some new value to it. By contrast, Australian copyright law exceptions based on fairness are more narrow, and would only really apply in these circumstances if you could establish that the sampling/borrowing/adapting was done for the purpose of “parody” or “satire”. 

You should also consider the terms of use that apply to the website that you want to sample the image from. The terms of use (or T&Cs) are a type of contract that is formed between you as the user of the website, and the owner of the website. Social media platforms for example, spell out how users can use copyright-protected material found on their sites, and generally provide that users can’t upload content that may be infringing copyright. There’s no easy way out of this one I’m afraid, but the best practice approach is to ask the owner of the image you want to use. And don’t forget to get it in writing!#

 

Yayoi Shionoiri is an art lawyer and the Executive Director of the Chris Burden Estate and the Nancy Rubins Studio. Find her on Instagram here and at her website here. Alana Kushnir is the Founder and Director of Guest Work Agency, an art law and advisory firm based in Australia but international in reach. She is also the Principal Investigator of the Serpentine’s Legal Lab. Find her on Instagram here and LinkedIn here.

This article is of a general nature only and should not be considered specific advice.

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