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Comment by anigbrowl | Hacker News Reader

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.

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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.

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.

> 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?

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