Susan Washington

Historically, artists like Andy Warhol have been at the center of landmark copyright cases that have raised the question of fair use. In 2023, the Supreme Court ruled against the Warhol Foundation in favor of photographer Lynn Goldsmith. Warhol created a series of silk screen images used on a photograph of Prince taken in 1981 by Goldsmith. 

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In 2022, contemporary artists like Deborah Roberts found themselves navigating a copyright infringement case against Lynthia Edwards. Roberts accused Edwards of copyright infringement, claiming her mixed media works, inspired by quilting and collage, copied her distinctive style. The case has gone on and raised questions about how artists working in the same cultural tradition can create innovative works without infringing on each other’s copyright.

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As the digital landscape evolved, the issue of fair use and copyright infringement has become even more complex. It’s been a growing concern in the art world, and artists are increasingly vigilant about their work being scanned and used without their consent. This has led to many debates about the balance between fair use and copyright infringement in the context of AI-generated art. 

Last year, when I was creating a series of small encaustic works, I reached out to Michael D. Oliver of Oliver & Grimsley in Baltimore, MD. Mr. Oliver specializes in Copyright and infringement law, particularly as it applies to artists. After extensively reviewing my artist statement and artworks, he assured me that because I had significantly changed the images digitally, with paint and with encaustic, in addition to completely changing the narrative towards female empowerment, I was in compliance and would have no issue legally sharing this body of work. 

In my art circles, the topics of fair use and infringement often come up in our conversations. I recently reached out to Mr. Oliver again, and he graciously sat down and answered many of the questions I asked him to elaborate on so I could share with Cohart artists.

##### Can you discuss the basics of copyright law and how it applies to artists?

Copyright law establishes separate legal rights in tangible original works of authorship – so, if an artist makes a painting on canvas – the physical canvas with the paint on it is personal property, and assuming that the image that was painted is original, there are separate “copyrights” in that image, apart from the canvas. If the artwork is sold (title to the physical canvas is transferred), that does not convey the “copyrights” in the image – so for example the purchaser cannot (without infringing the copyrights) take an iPhone, snap a picture, and post that on the web – because the purchaser does not own or have a license to the “copyright” in the artwork.

##### Can you discuss the concept of fair use? How does the concept of fair use affect artists, especially when it comes to remixing or referencing other works?

The general idea with fair use is that, to some extent a subsequent author should be able to exercise a copyright right of a prior author without liability in certain cases. Two of the more important key concepts are that either (1) generally fair uses should not affect the market for the original work nor have significant commercial purposes, or (2) in some cases, if the new work is “transformative” or directed to a core fundamental right (typically the right to free speech in the US), then even though a copyright right was exercised, and even if there was commercial gain from such use, such use should not result in infringement. Fair use is very much on a case-by-case basis – and often is impacted by the risk levels someone might agree to – for example, showing a copyrighted work of art in a movie background can be considered a reproduction – however, how long it is displayed and the size that it is displayed affects fair use – however, many filmmakers will not take the chance of a claim and simply not use the artwork without a license or waiver.

An artist is entitled to “take inspiration” from a prior copyrighted work. In this case, the artist is mainly drawing on the idea of the prior work and less its expression. Ideas are not protected by copyright, and so, in this case, there would not be infringement. But if the later artist takes more of the expression or even copies components of the prior work and then makes additions to them or makes changes, then the question of fair use would come up as now a portion of the copyrighted expression is being reproduced, or a derivative is being made. Fair use is the most complex and most fact-specific area of copyright law.

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##### How does the rise of AI-generated art impact copyright law? What should artists consider in terms of copyright protection with AI tools?

This is being sorted out now in court cases – many copyright holders and persons who claim name and image likeness are suing the AI companies for infringement for using their rights without permission.

It is right to inquire into the validity of the tools artists use. For example, Adobe recently published [guidance on the use of its Firefly tool](https://www.adobe.com/cc-shared/assets/pdf/enterprise/firefly-legal-faqs-enterprise-customers-2024-06-11.pdf).

For example, in Section 10, they say, “It means that Adobe is taking a thoughtful approach to how the Firefly family of models are being developed and implemented, including in accordance with Adobe's AI Ethics principles of accountability, responsibility, and transparency, and in a manner that is designed to reduce the risk of issues like copyright or brand infringement or other unintended harmful outputs. For example, the Adobe Firefly generative AI models were trained on licensed content, such as Adobe Stock, and public domain content where the copyright has expired.”

Could an artist who used an AI tool to create artwork be sued by a copyright holder for an image the tool creates that looks like the original image? They could because, ultimately, the new artist is using the tool to generate the artwork. That is still a final rendition of art authored by the artist. The tool was just an intervening mechanism.

Some companies like ProCreate have eschewed AI altogether, [claiming it is the ultimate theft tool](https://procreate.com/ai).

As we are in the very early stages of legal challenges, it is hard to come up with a single rule to follow.

##### How can artists legally use or reference copyrighted material in their own work?

The safest way is with a license. For example, Weird Al Yankovic, who parodied songs, could have argued that his use was a fair use as a core constitutional right (parody is highly protected under the 1st amendment). However, I understand that he always obtained a license.

A note here that “license” refers to a non-exclusive right. Licenses can be easily granted -sometimes inadvertently by the copyright owner. However, in general, a license is not granted by inaction – meaning, if you ask a copyright holder for permission and they simply do not reply, the failure to decline is not an express grant of a license. That would apply even if you said that unless they refuse, you will proceed.

##### How does copyright law apply to digital art, and are there any specific considerations artists should be aware of in the digital realm?

“Digital art” is protected like any other art. The main issue I often see is that some creators assume that anything on the Internet is “public” and hence free to use. That is not generally true – most content available publicly is copyrighted. Just copying it or modifying it can be dangerous.

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The other issue I often see is posting content to a social media site without understanding the terms and conditions. For example, most main social media sites grant themselves a very broad license to user-posted content and even, in some cases, the right to sublicense others for that content. Many of them also give themselves the right to use the content in AI model generation. In short, people assume that the terms and conditions are not a contract or not enforceable, but it often is, or at the very least, a license.

##### What are the best practices for artists when licensing their work to others? What should be included in a licensing agreement?

The key, I would say, is to define the scope of rights expressly and in a limited fashion, reserve all other rights, and prohibit sublicensing or assigning the license. Often, the scope of the grant is ambiguous or broad. I would also deal with attribution and integrity – those two rights do not often apply under US law to general works of visual art – so if the licensor wants their name attached or they want to make sure that the work is not altered in some way, those should be made expressly contractual. In addition, if the licensor wants to protect the work from abuse, like say, in political advertising or social cause advertising that they do not agree with, I would be clear about that – which is really a corollary to the first admonition to be very specific what rights are being granted, and prevent all other uses.

Especially with digital works, often you may want the user to have a “personal” right to use the work, but not the right to use it “commercially.” Be specific about what those terms mean; they do not have a well-defined legal meaning. Likewise, if you are licensing, say, plans, you may or may not be ok with mass production of the resulting physical object, and you probably do not want the plans themselves resold. Again, be as specific as possible with the scope of the license.

There are many other considerations that can apply in bigger licenses – for example, limited exclusivity, what happens when a dispute arises, who can register the copyright or enforce it, when a party has to assist in enforcement and protection, and so forth.

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Susan Washing sits down with Michael D. Oliver to discuss the ever-complex issue of fair use and copyright laws.

Copyright, Fair Use and Image Licensing: A Guide For Artists

Andy Warhol’s Prince portrait overlaid on top of the original Lynn Goldsmith photograph of the musician, as reproduced in court documents. Source: artnet.com

Sside-by-side comparisons of 2 works by Lynthia Edwards, left in both images, and Deborah Roberts, right. Source: artnews.com via court documents, August 2022

Artworks by Jenni Pasanen (top left), Stephan Vasement (bottom left), MemoryMod (middle), and AI arts sourced from redideostudio.com

Installation view of “Richard Prince: Portraits” at the Museum of Contemporary Art Detroit. Photo courtesy Museum of Contemporary Art Detroit.

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