Transformative Use

I am in the midst of producing a dance theater production titled All Good Men. All Good Men began its life as a dance theater adaptation of a Dylan Thomas filmscript (The Doctor and the Devils – originally published 1953.) I have not sought permission to adapt and perform the script.

Completely unrelated: Michael Jackson passed recently. I was never a teenage girl, and we didn’t have cable when I was growing up, so while I appreciate his music, MJ never meant much to me. But a lot of my friends are in full Triple M swing (Michael Memorial Mode), and one of them recently posted the following on facebook. It’s a bunch of clips from Fred Astaire movies, set to MJ’s song Smooth Criminal.

While enjoying the cool of the video, I couldn’t help wondering how long this will stay up; there is no way the music has been licensed (or it would have a permission granted credit), and I’m quite certain that the movies haven’t be licensed either. To see a longer post on copyright, click here. In case you don’t want to read that:

If someone makes something, they own its copyright. The term of copyright can expire, but in the case of both MJ music and Astaire movies, I’m certain that’s not the case. Copyright permission is – therefore – required. There’s a lot of legal work happening now about transformative use. Transformative Use is using part of something copyrighted to make something new – that you then own the copyright of. The famous Barack Obama picture by Shepard Fairey is a fine example.

Obama_Poster_ColfYou can see stuff about that here, here, and here. Fairey talks about it here and here. This video of Fairey talking about his work is also worth a view.

With Transformative Use one is re-working an existing piece to create something totally new. Tansformative use is one of the concepts that exists within Fair Use law. A Fair Use – Transformative Use defense of a usage does not mean that a usage is legal. But judgments in Fair Use defended lawsuits usually hinge around impact on the value of the previously existing copyrighted product. Does the value of the AP photograph decline because of Fairey’s use? Does the video bring down the value of MJ’s or MGM’s catalog? Does my production bring down the value of Thomas’s work? With Fairey’s pic his usage certainly didn’t devalue the original photograph. With the MJ video – if a song or video is available for free, people won’t buy it (as much.) With my production, I’m pretty sure I’m not harming the value of Thomas’s product. But that is not something I get to decide. The copyright holder gets to decide that.

Aside from the impact on the value of a prior work, there is the issue of credit. I am crediting Thomas, and the video credits Jackson and the film participants. The Ap is suing Fairey to get credit for the photograph (as you can see in one of the links.) If whomever posted that video doesn’t have permission -even though the usage is transformative- I wouldn’t be surprised to see it get pulled.

Artists Should Know About Fair Use Copyright Law

copyright2This was originally published as “Fair Use Copyright Law for Artists” – Published on Bourgeon, May 22, 2009. I think artists need to know that Fair Use copyright law exists, cause it’s important to understand what copyright gives you control over, and what it doesn’t give you control over.

As you know if you read this blog regularly, I don’t usually write for Bourgeon. Bourgeon is a communal publishing point; a place for artists to share their words about their work. Every now and then though, I do man up and write articles that I think are relevant to the community. Bourgeon’s readership is the art-interested public, and artists themselves. If you’re reading this and you’d like to be published in Bourgeon, please don’t hesitate to contact me; I’m always interested to hear/learn more about what folks are up to.


Creators today may assert copyright ownership of their creations, but this does not necessarily limit the publics legal access to or usage of their work. Fair Use copyright law is intended to protect usage of a copyrighted work for criticism, comment, new reporting, teaching, scholarship, and research. In application and implication, Fair Use law has significant impact on creators, scholars, and journalists.

Fair Use law is different from some other areas of the law in that legality of an action depends on several factors. Harvard Law School Professor and copyright expert Charles Nesson wrote, “Fairness is a standard, not a rule.No simple definition of fair use can be fashioned, no bright line test exists.” The U.S. Copyright Office outlines four factors in determining whether or not usage of a copyrighted work is fair (legal):

“The purpose and character of the use.the nature of the copyrighted work.the amount and substantiality of the portion used. and, the effect of the use upon the potential market for or value of the copyrighted work.”

In order to clarify some of the inherent fuzziness in the law, practice communities (such as book publishers, movie producers, and the music industry) are empowered to create Statements of Fair Use. These Statements document common allowable usages, and outline (but do not define) the ways in which a member of the public may use copyrighted material without reasonable threat of legal repercussion.

On Friday May 8th, 2009, the Dance Heritage Coalition presented the results of their multi-year project to develop a new Statement of Fair Use for Dance-related Materials. The mission of the Dance Heritage Coalition is to improve the ability of the dance community to retain and utilize materials documenting the art form. According to Project Director Libby Smigel, through developing and publicizing the new Fair Use Statement, the Dance Heritage Coalition hopes to encourage increased access to and usage of Dance-related materials. Smigel asserted that one reason archival materials remain out of sight to the public and researchers is confusion over copyright, and fear of lawsuits. The press release for the event noted, “it hasnt been clear how librarians, archivists, and curators can legally use. images and texts.” The issues addressed in the new Dance-related Materials Statement are common to other art forms. Fair Use access issues apply to images, videos, notes, copies, and recordings of any type.

In an explanation of Fair Use issues on their website, the Copyright Alliance (a trade association dedicated to tracking copyright issues) explains, “An individual does not have the right to make use of anothers copyright work. [Fair Use may apply] when someone already has a copy of a copyrighted work and makes copies, distributes, performs, alters, or displays that work and the copyright owner subsequently challenges that use of the work as being an infringement. In that case, the person could raise a defense of fair use.” Fair Use law is not intended as a defense for people who are simply too lazy to seek copyright permission.

nixon-leaving-white-houseThe impact on the financial value of a copyrighted material is a central issue in settlement of Fair Use-defended law suits. Writing on his website, journalist Brad Templeton reported, “Famously, copying just 300 words from Gerald Fords 200,000 word memoir for a magazine article was ruled as not fair use, in spite of it being very newsworthy, because it was the most important 300 words – why he pardoned Nixon.” Artists would be well-served to empower their own usage and the usage of others by considering how fair use law applies to their work.

The best way to be certain of the legality of ones usage of a copyrighted material is to seek copyright permission. In the event that copyright permission is not secured, Statements of Fair Use articulated by practice communities provide guidelines for usage, and defense in case of prosecution. To receive a copy of the new Fair Use Statement in Dance-Related Materials produced by the Dance Heritage Coalition, or to learn more about the document, visit