I created this for my personal use but had I chosen to alter an original work in copyright and made the resulting “new” art more visible to the general public, even post it to my Facebook page, I could be accused of copyright infringement. Chances are the copyright police wouldn’t come knocking on my door for creating the new derivative work, but it would not be an original work of art.
When an artist creates a work of art, the copyright comes into existence automatically and provides the owner with a number of exclusive rights. No registration is required, though it may be necessary to protect some remedies if the artist ever plans to sue for infringement. By the way, registering your content using ImageSpan's LicenseStream does just that because it establishes provenance (history of ownership) of the content.
To qualify as a derivative work, the creation must use a substantial amount of the prior work’s expression. How much? Enough so that the average person would conclude that it had been based on or adapted from the prior work. It’s a common sense thing. Merely borrowing the ideas expressed by the prior work (creating a work “inspired by” it) would not create a derivative work. Ideas are not copyrightable, and a work is not derivative unless it has been substantially copied from a prior work.
How Different is Different?
For a derivative work to be copyrightable, it must be "different enough" from the original work that it can be considered a new work in its own right. Making minor changes, or adding little of substance to a preexisting work will not qualify the work as a new version for copyright purposes.
Artists who create collages know they involve combining multiple elements to create a new whole. The important thing to remember is that the changes must be significant. Minor alterations to a single other work might not be "different enough." Unfortunately, the law is rather vague on this point. There's no clear definition of how much is enough, either in terms of a percentage, or square inches.
Derivative work can only include copyrighted material if it is created by the owner of the copyright for the original material, or with that owner's permission. Making a collage that includes photos from National Geographic, clippings from advertisements, or a famous Picasso painting is illegal unless you have obtained permission from whoever owns the copyright on those works.
An example we can all relate to...
Most if not everyone has seen the famous pre-election HOPE poster from street artist Shepard Fairey with the red, white and blue illustration of President Obama. What you may not know is that Fairey is now in a legal copyright dispute over the poster with the Associated Press for using photographer Mannie Garcia‘s photograph of Obama as a reference image without getting permission or substantially changing it. One might argue that the new art form is so different from the original photograph that it should be considered original. When art works its way into media -- even for a political statement -- and gains enough exposure to raise the prospect of commercial gain, the issue of ethics and ownership comes to the forefront.
An interesting note in this case is that the Garcia photo is now more famous and valuable than it ever would have been prior to the creation of Fairey’s Obama poster.
Also of interest: Fairey found Garcia’s photograph for the illustration on Google Images. In fact, a recent survey shows that more than 60 percent of all images are found via Web searches. With LicenseStream, users can publish their work directly to Google.
The Last Word
Protect yourself by creating original art that is not swiped from someone else’s portfolio or body of work. Protect your own intellectual property by registering it on LicenseStream where you can also benefit from our tracking capabilities. Our tracking services will alert you to instances where your work may have been misappropriated, and will let you resolve these situations by selecting among several automated responses. Responses may range from a request to license your work, include a photo credit, provide a link back to your site, or even a request to remove it.
LicenseStream’s Tracker offers another benefit: it enables you to see where your images are being used. This intelligence may uncover new markets for your work, enabling you to forge new marketing strategies and make more effective business decisions.
