Is it legal to recreate/mimic album covers from scratch for non-profit purposes (e.g. social networking sites, avatars and the like)? In the UK, if it helps.
I imagine this may fall under fair use for derivative work, but I’m not sure.
Don’t worry, I know the dope is not a source of legal advice, etc.
In the U.S. the answer is a flat no. That it’s non-profit makes no difference at all.
Well, if it were actually a fair use situation, the profit/non-profit distinction would become important. However, there is no fair use here anyway, since you’re not making a transformative work, just a copy.
Not necessarily. Profit is one piece of the the four-part test for fair use. All four must be considered equally. It’s a common misconception that non-profit alone is sufficient for fair use in the U.S.
Nor does being just a copy necessarily matter. Fair use for an album cover could be a copy as part of a review or criticism of the album. But as legitimate fair use it wouldn’t matter if it were profit or non-profit.
Interesting. I ask because of this group on facebook, and this (NSFW) contest on b3ta.
Is fair use applicable in both cases? I imagine it would fall under parody; (from wiki’s entry on parody); The Supreme Court of the United States stated that parody “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”
If recreating from scratch, as in the first example (and this from the Guardian), can ‘parody’ fair use apply almost automatically? The link shows MS paint being used to recreate album covers from scratch, however I imagine by using Photoshop or similar you could recreate with much greater accuracy. Where is the line drawn?
Those would probably fall under the transformational protection of parody.
Creating art by using previously existing works is an area of law that can only be discussed on a case by case basis. Few cases make it through the court system and those are not always decided in the same manner. There are no general answers.
I see. In order to invoke the protection of parody, a work must be sufficiently different from the original work and also have some parody element then; merely recreating the work would not be covered, but recreating it slightly differently (in a parodying manner - which worries me because this seems hugely subjective to me) might be? I appreciate the difficult case-by-case nature of copyright law, just trying to establish general a rule of thumb as it were.
The statute claims that the four factors are equal. However, in case law, the really important ones are the commercial character of the work, and making a transformative use of the work. The 1976 act tried to be a summary of case law on fair use, and is read somewhat literally by a lot of district courts, but apellate venues weight the prongs differently. And believe me, I’m not harboring any misconceptions about fair use.
This is true, but reproducing the album cover (while usually allowed) could still be infringement, unless the commentary/parody is about the artwork itself (though there is a split here, as some courts have considered cover art on books part of the work itself even though it was separately copyrighted, and thus review of any aspect of the work counted as review of the cover as well). There isn’t much case law, because realistically, no one is going to sue a reviewer, nor will they sue a random internet guy that copied their cover as an avatar. But in the context of avatars, there’s no critical purpose, which is why a pure copy of a cover is just going to be plain old infringement.
There’s no line. Fair use is an affirmative defense to infringement: “I stole the author’s work, but it’s ok because it’s a fair use.” Even the enumerated fair uses leave a lot of wiggle room, and the 1976 act made things worse by codifying fair use. But the statute is still just a four-part balancing test (read: ad hoc), and so a lot of it is up to the discretion of the judge.
And there’s no real distinction between making a photocopy/scan or redrawing a cover from scratch. Either method is a copy. Derivative works (adding something, removing something, etc) don’t get any special protection against infringement, as there’s no such thing as derivative work fair use in the U.S. (and I am pretty sure not in English law either).
The album cover joke photoshops/mspaints are highly likely to be found parodic, but parody is something that pokes fun at the original work – it’s intent that counts, not method.
(And of course the reality is the owners are highly unlikely to care anyway.)