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Comment by anigbrowl | Hacker News Reader

No creation of art is infringing, you can rip other artists off in your home to your heart's content. It's the commercialization of your output that creates infringement - when you license or sell the work. Warhol's version of the Prince photographs might not be infringing if the original were sold, but that's really for a jury to decide. There isn't a legal test that can articulate the exact difference between a derivative and transformative work.

Warhol had interesting ideas but I consider him more of an impresario than an artist; his real creativity was that of his public persona, and many of his most famous paintings seem to me to be merely decorative (multiple tinted reproductions) or imitative (Campbell's soup can, which was just Duchamp in the kitchen).

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I am not a lawyer, I am not your lawyer, this is not legal advice.

> No creation of art is infringing

Unfortunately it is very tempting to read section 107 as you might read other text and assume that any one of the four parts of the test can protect you, but that is NOT how the law has been applied. You can be found to be infringing even without commercial exploitation. Each of the four parts of the test is evaluated and weighted with the other parts.

https://www.copyright.gov/title17/92chap1.html#107

> "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Yes...non-publication won't bar a fair use finding. If you sit at home and make 100 copies of a work in the pursuit of developing your artistic technique, you're fine up to the point where you attempt to sell them or exploit your production commercially, eg making a youtube 'documentary' about yourself which leverages the fame of the original work to draw attention to your perfect imitation of it, but painted with a toothpick or something. This is after all a kind of publication.

There isn't a default presumption of infringement, which is why you don't need to produce ID at the art supply store to buy brushes and canvas.

More accurately, you are fine until you try to distribute them, or display them. Giving out free copies would not be commercial, but would definitely be a violation.

Well it's commerce in the sense of 'look at me I'm so great at art-ing.' You're sharing them for social rather than fiscal capital. If you anonymously mailed them out and kept your mouth shut I doubt any resources would be spent to track you down, or (if they were) that you would lose in court.

You are definitely not "fine". The infringement has happened. The fact that you aren't going to be "caught" and sued doesn't make everything legal. Ask any artists if you make and hang a copy of their work inside your own home. Ask Microsoft if you can copy their "art" for use in your own home.

If I have photographic memory do I need to license any artwork I see?

Sometimes practical limits on laws are intentional. Tracing your favorite anime character is legally infringement but luckily, multinational corporations aren't allowed to enter our homes to make sure we don't owe them royalties for our kids artwork on the fridge. They can only do that for trading cards.

No because having an image in your head is not considered a recreation of the work... it's not even remotely tangible.

In your brain? no. But stored in the memory of your robot dog? Yes.

https://en.wikipedia.org/wiki/De_minimis#Copyright

> Courts will occasionally not uphold a claim to copyright on modified public domain material if the changes are deemed to be de minimis. Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis.

It's not legal, just that its not worthy of the court's time.

Drawing a copy of Mickey Mouse on your child's playroom wall is likely de minimis - just don't make viral videos of it or have playdates with Disney lawyers.

https://thowardlaw.com/2021/06/copyright-infringement-but-fo...

From the Second Circuit in On Davis v. The Gap:

> The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on José de Creeft’s Alice in Wonderland sculpture. . . . When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement.

https://www.lexisnexis.com/community/casebrief/p/casebrief-d...

De minimus is about assignment of copyright to new works that are only slightly different than the original. It does not say that minimal copying is ok, rather that minimal copying does not justify a new copyright.

Disney does go after people drawing mickey mouse on walls. Schools, daycares, even private houses. They go after on not only trademark but copyright grounds too. There is nothing in copyright law that says private copying is ok.

> It does not say that minimal copying is ok, rather that minimal copying does not justify a new copyright.

The wikipedia link[1] gives an example of infringement cases being dismissed based how insignificant it was.

> Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis. For example, the NBA 2K video games that included copyrighted tattoos in the recreation of the players' likenesses were found to be in de minimis and not copyright-violating.

Additionally SeanLuke's comment[2] does a brief analysis that looks correct that indicates private copying and usage would fall under fair use:

[1] https://en.wikipedia.org/wiki/De_minimis#Copyright:~:text=Si....

[2] https://news.ycombinator.com/item?id=35994306

> rather that minimal copying does not justify a new copyright

The quoted opinion from the case specially has minimal copying as some examples such as making a copy of a cartoon to post on the refrigerator:

> The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. ... When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement.

On Davis v. Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001) ( https://casetext.com/case/on-davis-v-the-gap-inc )

Schools and daycare with copies of the work likely rise above the trivial copying of putting it on your refrigerator.

> eg making a youtube 'documentary' about yourself

Would that not be transformative? Your product was the documentary. It wouldn't be something that could undermine sales of the original. There are plenty of youtubers painting Rothko knock offs.

> leverages the fame of the original work

Using another's fame isn't what's protected is it? That would require something more like a trademark. Can I not write a book called "Who ate Picasso's Guernica?" or some such?

> No creation of art is infringing, you can rip other artists off in your home to your heart's content. It's the commercialization of your output that creates infringement - when you license or sell the work.

You can create infringing works in your home to your heart's content because you are unlikely to get caught. But that doesn't mean that the infringement hasn't happened. There are fair use factors that will determine whether an exception to infringement applies, but only one of those factors relates to commercialization.

This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home.

Perhaps this will come across as an overly-technical explanation to non-lawyers (IAAL), but I think it's worth noting in this thread because it is strictly not true that infringement hasn't happened until you license or sell a work.

> This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home.

That's genuinely shocking to me, is that an American thing? Never heard of such a restriction here (in Ireland).

Different nations have different interpretations of intellectual property in general. Combined with treaties that provide protections in other nations. It all will vary.

I suspect the law is all too similar, it's the enforcement that tends to vary. Recently moved from back from living in Germany. On paper Germany has similar noise nuisance laws to most countries. In practice they're super officious about enforcement, with a whole police force dedicated just to nuisance complaints. Which has an extremely chilling effect on social life and neighbourly relations - since its normalised to call the police on ones neighbours.

Here in the US, print shops will typically require you to check a box indicating that you own the copyright to any images you are printing. I don't know how tightly this is monitored or enforced by most shops, however.

One funny thing that happened to me is that when I tried to print some company tshirts on Zazzle, they rejected the order because it included my company's logo, which they somehow identified and flagged (for trademark reasons, not copyright). This was shocking, given that I'm a solopreneur.

Equally interesting: once I simply said that I was the owner of the company, they made no attempt to confirm (I was using my wife's personal Zazzle account, since she uses it frequently, so the email domain would not confirm ownership). They just green-lit the order. I was pleased not to have to jump through a bunch of hoops, but it was surprising how easy it was to claim to be the IP owner.

Yes, in the US when you try to get prints of photos that look to be professionally taken, you'd often be asked for the photographer's copyright release, especially if it's something like wedding photos where there are usually professionals involved. It can be a bit of a pain, such as when they're just your own family photos taken with a "real" camera, but I suppose it does sometimes help to protect photographers against unscrupulous clients.

That's outrageous. Why would it unscrupulous for a client to make more prints of a given photo? Surely the primary service is taking the photograph, and the client then owns the photo? I actually work as a cam op / director (obviously a different but related medium), and the idea that I would charge someone additionally, or try to prevent them from creating a copy of something I'd created expressly for them is just absurd. For example if I filmed a wedding for a couple (as many of my friends do), I'd charge for shooting or editing, and perhaps an original gift copy on some specific format (deluxe USB key or whatever). But after that point the couple would be free to distribute the film - they already paid for it. What happens if the original photographer is no longer in business, or can't be contacted or sells the rights to your wedding photos to some awful copyright troll. My head is spinning thinking about the potential for exploitation.

It depends on the business model of the photographer. Higher end photographers usually work as you describe, but some, particularly on the lower cost end or in places like malls (think Santa or Easter Bunny pictures), will take dozens of photos for free, but then offer packages of images/prints at various price points. Usually there's a digital package that will include high res versions of all images along with the full rights, but that tends to be priced relatively high. What some clients might do is to buy a lower end package (or none at all) and then try to make prints of additional pictures from the digital sample images they're given, thereby circumventing the photographer's business model. The resulting photos are of course of poor quality, due to low resolution and imperfect watermark removal, but some people really don't care if it can save them some money. You're right that it all seems unnecessarily complicated, but look at the healthcare system we have.

I'm sure enforcement is all over the map but commercial print shops absolutely won't wholesale copy stuff they think is a copyright violation. There was even a lawsuit against Federal Express a few years back because they were making money from copying Creative Commons non-commercially licensed material.

> You can create infringing works in your home to your heart's content because you are unlikely to get caught. But that doesn't mean that the infringement hasn't happened.

I don't think so.

Title 7 Chapter 1 Section 101. https://www.copyright.gov/title17/92chap1.html

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

---- Copying a work solely in your home is clearly not of commercial nature (factor 1) and has no effect on the market, since the item is not being sold (factor 4). It is almost certainly fair use and not infringement.

Warhol isn’t well known because he tinted some images but because he chose to use everyday subjects like the Campbell soup can which were then-under appreciated in art and society.

What gives art meaning is how it is a reaction to what was then in vogue at the time of its creation, but if you take art outside of its context, it seems superficial.

For a more relatable example, if you watch 2001: A Space Odyssey now, it pales in comparison to modern sci-fi works but for its time, it was a revolutionary piece.

The supreme court didn't say Warhol's work was without value. It said that Warhol's work was derivative of another work and that they could not maintain their alleged fair use defense based upon it being transformative, when it was being commercially used for the same exact purpose.

everyday subjects like the Campbell soup can which were then-under appreciated in art and society

As I already pointed out, Marcel Duchamp did that very thing with a urinal ~60 years earlier. Duchamp talked of found objects as 'readymades; and said they were "everyday objects raised to the dignity of a work of art by the artist's act of choice." Warhol wasn't unoriginal because he appropriated everyday objects and others' artistic works, but because those concepts had been developed by the Dadaists decades earlier.

https://en.wikipedia.org/wiki/Fountain_(Duchamp)

But a urinal is not the marketing on a product.

right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair.

US law as written does not permit this. Copyright restricts reproduction and the production of derivative work except for the reasons listed in fair use. Personal use isn't among those reasons (setting the US apart from like 20 other countries).

It's just de facto legal because of the difficulty of detecting those instances and the presumably nil return in litigating them.

In this case it wasn't for personal use... and even beyond just selling the original (derivative creation) itself. Where it came afoul was when they tried to license the derivative work in ways that were in conflict and reduced the market value to the original work.

> right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair.

This seems like it would be fair use. SeanLuke's comment[1] does a brief analysis that looks correct.

[1] https://news.ycombinator.com/item?id=35994306

I'm sure that copying a work for your private consumption would be considered non-commercial in nature, but his assertion that it doesn't affect the potential market for the item wouldn't hold up.

It's clearly affecting the market for the original as you are removing yourself from the market for it. Creating a copy for your own consumption harms the copyright holder's ability to market a reproduction to you.

>It's clearly affecting the market for the original as you are removing yourself from the market for it. Creating a copy for your own consumption harms the copyright holder's ability to market a reproduction to you. > Courts have found exactly that relationship in other contexts as well.

My rough understanding is that normally there has to be some minimal amount of damage and the effect has to be measurable. I am not familiar with the court cases but the term has been quote elsewhere in the comments, De minimis[1].

I also think the argument can be made that the person who makes a personal reproduction was never in the market for the original so there is not commercial impact. Or at least it is an easy argument to make.

[1] https://en.wikipedia.org/wiki/De_minimis#Copyright

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