Avoiding Copyright Infringement

It is important that artists understand that a work does not have to be identical to infringe copyright in an earlier one. The legal test of infringement is “substantial similarity” — which translates (roughly) into whether an ordinary observer would recognize a work as copied in whole or in part from an earlier one.

In a similar vein, artists occasionally ask if it is OK to base a painting on, for example, a magazine photograph — even though most appreciate that turning a photograph (or some part of it) into postcards would infringe copyright. Such questions are not easy to answer. First, an artist is unlikely to be sued for using a relatively small element from another work — particularly if it used only for reference and is not copied in detail. (One who photographs a tropical scene does not get exclusive rights to all palm trees that might vaguely resemble those depicted there.)

Still, the safest course of action (particularly if you have any doubts) is: Do not copy unless you have permission or are sure that what you want to copy is in the public domain!

**Editor’s note: This is an informational site. It is here for your viewing pleasure and information contained therein is not that of any legal representative. I am not a lawyer. I don’t even play one on TV. I have no law degrees, earned or honorary. I have no plans to obtain said degree, so until such time, this disclaimer shall remain valid.