Ask a Lawyer // March 2018 // Copyright, Fair Use, and Designers

Designers find inspiration from so many sources, it may actually be hard to track. Whether it is an image, a color, a song snippet, a video, or even just walking around, inspiration strikes when it strikes. Where a designer’s life might get tricky is when that spark of inspiration comes from the work of another designer, a different artist, or some other work that may or may not be copyrighted. The question is how far can a designer go using the work of others beyond inspiration.

Aside from questions related to the work made for hire doctrine or the real world applications of the work made for hire doctrine (see here and here), the fair use doctrine is the most common copyright question I get. A number of myths surround fair use (which I should cover in another column), but the fair use issue has been in the news recently, the legal news at least.

A federal court in New York issued an opinion in a copyright dispute between Fox News and TVEyes. TVEyes charged a fee for users to search through their database of news video clips. The clips were cataloged using the broadcasters closed captioning. Users could enter their search terms and then see the entirety of the video, whether it was a news story, opinion piece, or a panel interview. The clips ranged from 30 seconds to 10 minutes in length. The clips themselves were unaltered.

The case bears some resemblance to the Google Books case from 2015. Google Books digitized millions of books and made them searchable. When a researcher typed in a search, Google Books will return a series of four line snippets of text along with the details of the publication. In 2015, the Second Circuit Court of appeals said that the practice was fair use. The court also warned that the case was pushing the boundaries of fair use.

TVEyes did something similar to Google books but, according to the court, crossed the line of fair use into copyright infringement.

So what does this have to do with designers—Fair Use and understanding Fair Use can be very helpful when dealing with inspiration or potentially using bits of another copyrighted work. There is a four-factor test that the courts use, that is pretty easy for designers to think about when considering whether you were inspired by or infringed on another person’s copyrighted work.

Factor 1: The Purpose and Character of the Second Use
In the past, this factor looked at what was the second use for, i.e. educational purposes or critique was fair use. Using copyrighted elements for a commercial purpose was not fair use. While non-commercial use still matters, when courts face questions of commercial use, the analysis usually looks at whether the second use is “transformative” or “communicates something new and different than the original or otherwise expands its utility.” The database in Google Books and in TVEyes does expand the utility of the copyright work, allowing for better, more efficient searching, and making works available to previously closed off audiences.

For designers, you will need to focus a bit on the communication of new ideas. Does the work you are considering using communicate a different idea or purpose that what you intend? How much of what you are going to use the work resemble its original purpose? Also consider how integral or important the segment you are going to use is to the original work. You need to transform the purpose of the work, not just transform the design.

Factor 2: The Nature of the Copyrighted Work
In most Fair Use disputes, this factor is not a key factor when looking a commercial uses of a potentially infringing copyright use. While the courts might not care as much, designers should be mindful of the works that are serving as more than inspiration. For example if a song lyric gave you inspiration because it created an image in your head, because the lyrics paint a very specific picture in your head and the songwriter might have intended that specific picture. But if you translate the intended image into a pictorial representation, the use of the mental image if fair use of the copyrighted material.

Factor 3: The Amount of Use of the Copyrighted Work
Simply put, the more of a copyrighted work you use, the more you are infringing. A simple concept but difficult to implement. For example, a famous line from a book may be incredibly useful to communicate an idea for a design. If you use the whole quote, is that infringement? (Spoiler Alert—Probably). How much is too much? Sadly, that is the trick.

Factor 4: Effect on the Potential Market for the Copyrighted Work
In commercial use context, any use of a copyright work or part of a copyright work that is used to make money for the secondary user is going to be scrutinized. One common problem I run into is the use of pieces of a song in a video. In the TVEyes case, TVEyes was literally selling access to copyrighted materials and charging a significant fee for that access. The new use dramatically skewed the market for Fox and other broadcasters to license the use of their copyrighted material. As the copyright owner, the broadcasters had the right to determine if they were going to sell access to others or give it away for free or somewhere in between. 



As designers, if your work for a client is going to divert money or competition from the copyright owner, you should very much think twice. Many clients certainly come in and ask for work that would remind their customers of a more successful competitor. IF you are using copyrighted material to make that comparison, you run the risk of skewing the market improperly.

The Hard Part
I wish I could give all of you a nice easy formula to figure out fair use, but as the courts says, this is a balancing test and the facts of each case matter a great deal and drive the determination of fair use. Designers (and lawyers) need inspiration to provide their services. But we all are subject to letting our inspiration run away from us, just ask The Rolling Stones and k.d. Lang. Be familiar with Fair Use as it applies to your work and, as always, if you have questions, please consult an attorney.


BIO Disclaimer

MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.

THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.

By Matthew S. Johnston
Published March 7, 2018
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