Fair Use: Can I Use That (Bug) Picture in My Art?

Written by Nancy Miorelli
With help from Stephane De Greef

I’m an admin for the Entomology FaceBook Group and copyright comes up a lot. In fact, the admins had a long discussion about this particular picture.

PC: Cristina Samsa

We discovered that it closely resembles a photo by Igor Siwanowicz (who by the way is one of my favorite insect photographers and you should totally go check out his page!)

PC: Igor Siwanowicz

And it’s not just “closely resembles”. She digitally cut the mantis photo in half, mirrored the resulting image, and put a filter over it. So here’s the question. Is this image fair use? Or copyright infringement?

How Do I Know If an Image is Copyrighted?

It’s copyrighted. The creator of the work does not have to apply for copyright. Copyright is automatic. You have it just by the nature of creating the image. Copyright is not the same thing as trademarking which you *do* have to apply for.

It doesn’t matter that I took this photo on my cellphone and uploaded it to Instagram. It’s my photo. And it’s copyrighted to me. That is its default nature.
PC: Nancy Miorelli

Avoid The Mess – Use an Adaptable Image!

There are several public domain images in which you can do whatever you’d like to them and don’t need to give credit back to the original source. (It is nice though). Alex Wild’s project called “Insects Unlocked” is a project with all public domain insect photos.

With over 900 photos you’re sure to find something you’ll want to use!

Otherwise, you can find photos under different “Creative Commons” licences. Some you can only reproduce, but others are available to be remixed. Both Wikimedia Commons and Flickr have great resources and explanations that tell you exactly what you can use the image for and how to credit it. Google also has a “tools” section where you can select licences, but  doesn’t provide explanations with the photos about exactly what you can do with them.

The author of the image must choose to put the image in public domain or in creative commons. Photos ARE NOT public domain or creative commons by default.

How to find editable images on Flickr

Creative Commons Licence

But I Wanna Use **THAT** Photo

Okay

Just Ask For Permission

Seriously. Save everyone the headache. It’s best to just ask for permission first. There’s no reason not to do it. Even if you win a fair use battle in court, doesn’t mean that the lawyer fees that will cover your bum won’t cost more than what you actually made from possibly selling the work. Even Weird Al, who built his career on very legal parodies, asks permission before making one.

Writing disclaimers like “No copyright infringement intended!” is like you entering a no trespassing zone with with wire cutters and a sign on your back saying “I didn’t mean to trespass!” It won’t help you in court.

Giving credit to the original author isn’t the same as permission.

Okay Okay, Fair Use:

Here’s a quick checklist to see if your work falls under fair use.

  1. The Purpose
    1. Is it nonprofit? educational? scholarly? research?
    2. Is it transformative? re-purposing? re-contextualizing? creating a new purpose or meaning?
    3. Are you providing commentary? or criticism?
    4. Are you making a parody?
  2. The Nature or Type of Work
    1. Is it published?
    2. Is it fact-based content?
  3.  The Amount of the Work Used
    1. Did you use only the amount of the work you needed for your purpose?
    2. Did you use small or insignificant amounts?
    3. Are you reproducing the image in low resolution (<800px) or in thumbnails?
  4. Market Affect
    1. Will your work directly compete with the work you used?
    2. Could you not obtain written permission before you started?

You have to nail all of those on the head to be considered fair use and you can read a bunch of example cases here to see if they have fallen under fair use or not.

Back to the Original Image in Question?

Please note, that I am not attacking Cristina in this commentary, I am simply using it as an example within the context of Fair Use (which is Fair Use).

Left: Artistic Render by Cristina Samsa
Right: Original Photograph by Igor Siwanowicz

There two areas where I think this picture would not fall under Fair Use. The first is the amount of the work that was used. Because the entirety of the mantis was recreated it seems likely that Cristina’s artistic render would not be considered Fair Use as the whole of the image was used, it was uploaded in high resolution with the intent of being sold.

Top: Sketch by Dan Piraro
Bottom: Photograph by Alex Wild

The other aspect I think is problematic is the transformative aspect of the picture. Some movies avoid copyright infringements when photos are in sets by having the photo sufficiently distorted or blurred, or only in the frame for a second or two. Any more than that, and they would have to obtain licencing fees. In this case, the rendering of the mantis may not be transformed enough to qualify for Fair Use.  This line is gray and complicated and is where a lot of the problems pop up.

Alex Wild (another photographer who I highly respect) wrote an opinion piece explaining his stance on whether certain images qualified as fair use. Alex reached out about the pictured fly and a productive discussion followed. Alex ultimately decided that this was not transformative enough to be considered Fair Use but pressed no charges.

In another example of Cristina’s pictures, she markets an image as a painted millipede. However, when analyzed in Photoshop, it clearly overlays Igor’s photograph pixel to pixel. While her mantis photo might be considered transformative by some courts, other images like this one of a pill millipede, are a direct match. This would not qualify as transformative, uses the entirety of the image, and in this particular case may also directly compete in the market.

1) The photo by Siwanowicz
2) The painting by Cristina Samsa
3) The Overlay by Stephane De Greef

All of this complicated mess could have been avoided if the pictures used to render the artistic effects were under a public domain or creative commons licence. I think the filtered effects are neat and interesting, and the rainbow Mantis might even be something I’d want hanging on my wall, however I wouldn’t want to support something that is stepping on the toes of another artist I highly respect.

I Live in Another Country and Your Rules Don’t Apply to Me!

Well, yes and no. You’re right that these copyright laws are in effect for the United States.

Copyright Map
If you live on earth, you’re probably in a country with a copyright law.
PC: Pintas

Several other countries in Europe and Australia have adapted similar copyright laws. Even where I live in Ecuador we have copyright laws that are very similar to the US laws, although the enforcement here is lacking a bit. While we may not have exactly the same verbiage, and there is no one international copyright law, there is a signed Berne Convention Treaty in which 180 countries signed which basically covered the same topics as the US copyright law. So there’s probably a copyright thing where you live.

I’m In Education! What About Me?

I’m glad you asked! Fortunatley, Fair Use extends to education and non-profits but this goes beyond the scope of today’s blog post. However, I will direct you here – which explains Academic and Educational Permissions  and about creating Academic Packets. Those two topics could be blog posts by themselves.

TL;DR

Before you go running off and using whatever image for your art, I might suggest that you use a public domain image or a creative commons image that is available for modification. Public domain images and creative commons images can easily be found on Wikimedia Commons and on Flickr. Specifically for bug photos, check out the Insects Unlocked project.

10/10 Do recommend the “Insects Unlocked” project.

Images are automatically protected under copyright. If you find an image that you want to use that is not public domain or creative commons you should just ask for permission! Save everyone the trouble!

To be Fair Use your work must fit these criteria.

  1. The Purpose
    1. Is it nonprofit? educational? scholarly? research?
    2. Is it transformative? re-purposing? re-contextualizing? creating a new purpose or meaning?
    3. Are you providing commentary? or criticism?
    4. Are you making a parody?
  2. The Nature or Type of Work
    1. Is it published?
    2. Is it fact-based content?
  3.  The Amount of the Work Used
    1. Did you use only the amount of the work you needed for your purpose?
    2. Did you use small or insignificant amounts?
    3. Are you reproducing the image in low resolution (<800px) or in thumbnails?
  4. Market Affect
    1. Will your work directly compete with the work you used?
    2. Could you not obtain written permission before you started?

Remember, even though a court may claim that your work is Fair Use, if you’re brought to court paying a lawyer may be more than just paying for the original image. So it’s best to be safe rather than sorry.

A rainbow filter over a Harvestman Photo I took in the Maquipucuna Reserve. Feel free to use it how you wish =) Image Made with the PicsArt App


Nancy Miorelli, @SciBugs, is living in the Ecuadorian Cloud Forest in the Maquipucuna Reserve.
To help fund her stay she sells eco-friendly, very original and not at all infringing, bug jewelry featuring jewel beetle shells and an Ecuadorian nut called Tagua!
Check out her shop SciBugsCollections!

 

About SciBugs

Entomologist, Science Communicator, and Crafter Twitter: @SciBugs
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