Legalities #5: Some Questions About Fair Use

by Linda Joy Kattwinkel

Can I show my work in my portfolio even if someone else owns the copyright? Is it safe to use copyrighted works in my collages? These questions illustrate two disparate applications of the copyright doctrine called "fair use."

What is fair use? As a general rule, if you use a copyrighted work without the copyright owner's permission, you will be liable for copyright infringement. "Fair use" is a limited exception to this rule for certain kinds of use. The most well-known examples of fair use are parody and news reporting, but many other types of use could qualify. The copyright statute sets forth 4 factors for courts to consider in determining whether a particular unauthorized use qualifies as fair use:

While courts are supposed to consider all of these factors, depending upon the particular work and the particular type of use involved, some factors may be given much more weight than others. As this month's questions demonstrate, in some circumstances fair use is relatively easy to determine, and sometimes it's not.

Q. I am Senior Designer at a small, publishing company in San Francisco, where I design all in-house advertising materials for clients and sponsors. I realize that the rights to all work I complete on the job belong to my employer, and in some cases the clients that hire us for services. But it is it okay to use some these pieces in my portfolio? and more specifically, my online portfolio site? What about designs I completed at previous employment sites (ad agencies, etc.)? Would it be acceptable to use some of the designs as examples of previous work when applying as an independent contractor for a temp agency?

A. This is a relatively easy question. Most copyright lawyers, myself included, believe that reproducing your own work in your portfolio (whether in print or online) is fair use, regardless of who owns the copyright. As a practical matter, showing your work in your portfolio is a common and accepted practice in the design field, and the copyright owners rarely object.

The most persuasive fair use factors in this situation are (1) the purpose and character of your use, and (4) the effect on the potential market for the original work. The "purpose and character" of portfolio usage is to accurately document your work and thereby promote your services as a commercial artist. It could be argued that self-promotion is "commercial" use because your ultimate goal is to generate more illustration assignments. However, that is not the type of profit-making that weighs against fair use. You would not be making money directly from reselling the portfolio piece; rather you would be paid for the new illustration that you create for the new assignment.

Factor (4), the effect on the potential market for the original work, further supports the non-commercial nature of portfolio use. Showing your work in your portfolio does not compete with your employer's or its clients' market as the copyright owner of the work. They still have exclusive rights to control use of the work in the publishing market, or to promote sales of goods and services.

The remaining two factors are essentially neutral in this situation. Factor 2, whether the work is more creative or factual, doesn't really matter because you are showing your own artwork. Factor 3, how much of the original work was copied, is evaluated by asking whether the amount copied was reasonable in relation to the purpose of the new use. In this case, the purpose of portfolio usage is to accurately document your work, so showing the entire work is reasonable.

That being said, there may be some circumstances when portfolio use could be a problem. For example, your employer may want public credit for the work itself, and thus may object to your conflicting online disclosure that you created it. Showing the work privately to other prospective clients may be of less concern. The US Postal Service has an infamous policy of not allowing artists to show any works created for the post office, even works that ultimately were not published. The safest practice is to explicitly address this issue in your agreements with your employer or clients, or check with them before you include the works in your portfolio.

Q. Last Christmas I was feeling crafty. I designed a series of Christmas cards that were sent to friends and family. I have also posted the designs on my portfolio website. I created the cards using scraps of wrapping paper we had at the house. Using small illustrations on scraps of wrapping paper, I pasted the scraps to pieces of cardboard, then mounted each cardboard piece to card stock for a raised design. A friend recently asked if I was selling the cards. I don't know if my designs are legal -- did I steal someone else's work by using the wrapping paper? Or is the use considered acceptable because I used only portions of the wrapping paper to create a different piece of work? What are the laws governing this?

A. This is a difficult question. Collage is a time-honored art form that utilizes pre-existing materials, including artwork and photographs. Often the materials will be copyrighted. So your unauthorized use of those materials would be copyright infringement unless your collage qualifies as fair use. Unfortunately, there is no legal rule on whether collage as a category would be fair use. It will depend in each case on an evaluation of the four fair use factors with respect to the particular collage.

For most collages, factor (1), purpose and character of the use, will be the key factor. Typical collages, those that use many different materials juxtaposed in ways that create new visuals and meanings, will be considered transformative works. A work is "transformative" when the copyrighted material is "transformed in the creation of new information, new aesthetics, new insights and understanding." In contrast, a work is not transformative if it merely uses the copyrighted material in the same way or with the same effect as the original work. For example, in one recent case, the defendant published "idea books" for scrapbooking. Some of the sample scrapbook pages used the plaintiff's stickers combined with other decorative materials. The court found that this was not transformative. The stickers were used in the defendant's books "to create a pictorial representation in which the stickers would not lose their individual identities." Also, the plaintiff itself marketed the stickers for scrapbook use and published its own idea books, which also used the stickers as part of decorative collages.

Another aspect of factor (1) is whether the new work is commercial. "Commercial" does not merely mean that you make money from your work. Generally, works of fine art are not considered commercial even if they sell for hundreds of thousands of dollars. Courts are more likely to consider artwork commercial if it is sold as decoration on merchandise, such as mugs, trivets or t-shirts. In that case it looks more like you are using the artwork to sell consumer merchandise, rather than selling the artwork itself. However, the courts are not consistent in this approach. Some courts have held that sales of fine art prints are commercial. Others have found that sales of merchandise by museum gift shops are not commercial.

Under factor (2), the nature of the original work, the courts would look at whether the copyrighted material you've used in the collage is more factual or newsworthy in nature, rather than highly creative. There is more leeway to use materials like news photographs, for example, than a highly stylized illustration. News photographs are usually included because of the factual content of the photograph rather than to exploit the artistic authorship protected by the copyright. In your example, the wrapping paper would fall on the other end of this scale. The wrapping paper design is a purely creative form of art, and your collage is using it to exploit that aesthetic effect.

Under factor (3), the court will look at how much of the original work was used in your collage. For most collages, this factor should weigh in favor of fair use. However, it could be problematic if the main focus of your collage is one copyrighted work, e.g., a central image to which a decorative border has been added, or if the collage uses the entire work rather than just a portion. For example, a recent case considered a "collage" comprised only of a distinctive photograph reproduced in its entirety with an added humorous caption. The court assumed (without directly addressing the copyright claim), that the collage would have violated the photographer's copyright if the photographer had complied with certain copyright procedures. In the sticker case, the defendant also reproduced the sticker images in their entirety. In your example, given the repeat nature of wrapping paper art, you may have used the entire work.

Finally, courts will consider factor (4), whether the new use affects the potential market for the original work. For most collages, this factor will weigh in favor of fair use, because your artwork will not be displacing the market for the original materials. For example, suppose a collage uses an editorial photograph from a magazine. Using that collage on greeting cards probably would not compete with the licensing market for the photograph. In your example, however, the wrapping paper company would have a good argument that greeting cards are within its own potential market for its wrapping paper art.
While all of these factors should be considered, the courts are clear that whether the new work is transformative is the most important. The more transformative a work is, the less significant the other factors will be. Indeed, works have been held to be fair use even when all three other factors technically weigh against it.

To summarize, collages that have more of the following characteristics are more likely to qualify as fair use:

An example of transformative collage. © 2003 Barbara Margolies. All Rights Reserved. (Click To Enlarge)

One final note: in addition to copyright, collage artists should also be aware of potential trademark rights that might be associated with their raw materials. Trademarks are brand names or other symbols that represent the commercial source of products or services. Sometimes visual images can be trademarks, such as Mickey Mouse or the Marlboro cowboys. If you use these in your collages, there may be some risk of trademark infringement. However, trademark law also has exceptions for non-competitive uses. While the analysis is not technically the same, generally it is similar to the copyright concept of fair use. Such uses are the most safe when they are the most transformative, and unlikely to compete with the trademark owner's market.