One of the issues being considered by the Australian Law Reform Commission in its inquiry into copyright and the digital economy is how copyright should apply to ‘transformative’ uses of other people’s content.
The issue has arisen in the media recently, with reports that an art gallery has cancelled an exhibition of a photo-media artist’s works after reportedly learning that the works reproduced someone else’s photographs without attribution.
Situations like these give rise to three related issues:
1. when an artist is obliged to attribute the creator of a work they reproduce
2. whether the way the ‘referenced’ work has been used reflects badly on the creator of that work
3. whether the artist needed a copyright clearance for the work
The first two issues relate to a creator’s ‘moral rights’: rights relating to a creator’s reputation and connection with their work, that a creator has irrespective of who owns copyright.
In the recent case, the artist reportedly paid for a copyright clearance for the images he used in his works. A copyright clearance is usually needed unless:
There are many special exceptions in Australia’s Copyright Act. For a comprehensive list, see the Australian Copyright Council’s information sheet ‘Exceptions to copyright’, available here.
In these situations, the most relevant are those that allow use of other people’s content for criticism (critique), review, parody or satire. In some cases, there is an express requirement to attribute. In other cases, attribution is arguably relevant to assessing whether or not the use is fair.
In US copyright law, there is an exception for ‘fair use’. The exception operates in a similar way to the ‘fair dealing’ exceptions in Australia’s copyright law, but is not confined to particular purposes (as the fair dealing exceptions are). The fair use exception has given rise to many court actions, and people looking at whether the fair use exception applies in a given situation need to have regard to those court decisions (which are not all consistent). One aspect of the court decisions is that a ‘transformative’ or ‘productive’ use of a work is more likely to be a fair use than a ‘passive’ or ‘consumptive’ use.
One of the controversial aspects of the ‘fair use’ exception in the US is the extent to which it applies to uses of other people’s work for commercial purposes. Recent high profile cases in the US regarding the limits of the fair use exception include the case involving artist Shepard Fairey’s poster of Barack Obama, based on someone else’s photograph (see, for example, here and here), and the case involving the works of artist Richard Prince (see, for example, here and here).
For an overview of the issues being considered by the ALRC, see here.