Transformative Artwork Legislation
Transformative Artwork Legislation
Hello, I’m starting an artwork business in the UK, creating typographic celebrity portraits based on altered images/photos (taken by other people) that incorporate quotes/song titles/lyrics. I’m concerned about copyright and fair dealing, especially as this is for sale on Etsy and possibly galleries. Does UK law offer any protection under fair dealing? Have others successfully relied on transformative use or licensing? Would recreating the original image using typography be transformative enough to avoid any legal repercussions? Any advice or examples appreciated. Thank you
Re: Transformative Artwork Legislation
Hi Man123 and welcome to the forum,
The UK doctrine of Fair Dealing doesn't contain anything which equates to the US concept of transformation. The grounds for claiming fair dealing are relatively restricted, namely for criticism or review, private research, and the three newer categories of pastiche, parody and caricature. These last three have not really been tested much in the courts so we don't know their precise boundaries yet. However It is largely accepted that parody and caricature need an element of humorous mockery, which by extension probably means that pastiche also requires a degree of intentional humour.
However for any other motive, the test is very much whether a substantial part of the original work has been copied in the new work. Substantial in this context is a measure of quality rather than quantity. Perhaps a better word would be 'essence' because what is being examined is what makes the original special and a reflection of the creative choices made by the original artist or photographer. As you are probably aware the US Fair Use doctrine is decided on four fatcors, two of which are economic. But economic factors play virtually no role in the UK Fair Dealing doctrine.
So for your project you either need to inject a good deal of parody into the execution of your work, for instance either mocking the work of the artist/photographer or something that the singer/celebrity stands for. Since I suspect this is not what you are trying to do, you need to find several different sources to create your underlying image before applying your own technique with the lyrics. Ideally if you use paparazzi images you are less likely to run into problems because those photographers will have a harder time proving that they made creative choices in composing their images, unlike, say, a studio portrait session where the photographer has complete control over every part of the resulting image.
You also mentioned licensing. Typical licences merely permit the image to be used as is; you need separate permission to make an adaptation, which is rather different and probably isn't one of the rights which a typical photo stock agency is empowered to license, and so they would need to refer the matter back to the photographer or artist. This also raises a separate issue, that of moral rights. Under UK law (but not under US copyright law) there is a moral right for the artist or photographer not to have his/her work subjected to derogatory treatment (see section 80 of the Copyright Designs and Patents Act 1988). This is a major reason why, if you want to go down the licensing route, you need to make it clear to the copyright owner how you plan to use their work, so they can't object later on moral rights grounds.
And finally, you didn't ask about using the lyrics, but again a bit of care is needed, because lyrics are also protected by copyright and so reproducing them could amount to infringement.
I hope this helps
The UK doctrine of Fair Dealing doesn't contain anything which equates to the US concept of transformation. The grounds for claiming fair dealing are relatively restricted, namely for criticism or review, private research, and the three newer categories of pastiche, parody and caricature. These last three have not really been tested much in the courts so we don't know their precise boundaries yet. However It is largely accepted that parody and caricature need an element of humorous mockery, which by extension probably means that pastiche also requires a degree of intentional humour.
However for any other motive, the test is very much whether a substantial part of the original work has been copied in the new work. Substantial in this context is a measure of quality rather than quantity. Perhaps a better word would be 'essence' because what is being examined is what makes the original special and a reflection of the creative choices made by the original artist or photographer. As you are probably aware the US Fair Use doctrine is decided on four fatcors, two of which are economic. But economic factors play virtually no role in the UK Fair Dealing doctrine.
So for your project you either need to inject a good deal of parody into the execution of your work, for instance either mocking the work of the artist/photographer or something that the singer/celebrity stands for. Since I suspect this is not what you are trying to do, you need to find several different sources to create your underlying image before applying your own technique with the lyrics. Ideally if you use paparazzi images you are less likely to run into problems because those photographers will have a harder time proving that they made creative choices in composing their images, unlike, say, a studio portrait session where the photographer has complete control over every part of the resulting image.
You also mentioned licensing. Typical licences merely permit the image to be used as is; you need separate permission to make an adaptation, which is rather different and probably isn't one of the rights which a typical photo stock agency is empowered to license, and so they would need to refer the matter back to the photographer or artist. This also raises a separate issue, that of moral rights. Under UK law (but not under US copyright law) there is a moral right for the artist or photographer not to have his/her work subjected to derogatory treatment (see section 80 of the Copyright Designs and Patents Act 1988). This is a major reason why, if you want to go down the licensing route, you need to make it clear to the copyright owner how you plan to use their work, so they can't object later on moral rights grounds.
And finally, you didn't ask about using the lyrics, but again a bit of care is needed, because lyrics are also protected by copyright and so reproducing them could amount to infringement.
I hope this helps
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Re: Transformative Artwork Legislation
Apologies for the delay in replying.
That's incredibly helpful. Thank you for taking the time to respond in such detail. Much appreciated.
That's incredibly helpful. Thank you for taking the time to respond in such detail. Much appreciated.