I Found Something Extraordinary ….Can I Use It?

We have all experienced the situation where we have seen someone else’s artwork, or read a text, or heard music and it speaks to us.  We want to use it in our own projects.  But what can you take without infringing the rights of the original author?  Do you have any rights in what you created that contains someone else’s original work?

A derivative work involves a second tier of creative effort superimposed upon that of the underlying author.  Derivative works can be created legally when the underlying work is in the public domain; when the owner of the original copyright creates a new work based upon the old one; or where someone, with the permission of the original copyright owner, creates a new work based upon the old work.

For example, this is a photograph of a stained glass window that I created.

It depicts a landscape, but that landscape was based on the oil painting Lake Wabagishik, 1928 by Franklin Carmichael. 

You can see the original painting at the McMichael Canadian Art Collection, Kleinburg

Mr. Carmichael died in 1945, so the copyright term (life +50 years) in the original work has expired.  The expiry of copyright has placed the work in the public domain, so I have the right to reproduce the subject matter of the original work.  I have NO rights with respect to the original oil painting.  My stained glass window is the subject of copyright protection and I am entitled to apply a copyright notice to the work to advise others of my rights:

 © Valerie G. Edward 2017

How to stay on the right side of Copyright Law.

Copyright – the default position:

As soon as a work is created in a fixed format (written on paper, recorded digitally, typed etc.) the work is granted copyright protection.  If something is not your original work, you are NOT entitled to use it.  This is true even if there is no copyright symbol on the work.   If you copy, reproduce, display our otherwise hold out another’s work as your own, you are infringing copyright in the original work whether you benefit financially from the use or not.

• For older works, check to see if copyright in the work has expired. If so, then you are free to use the work in your own project. 
• If the author is alive, check whether the author of a work dedicated it to the public? If so, then you are free to use the work in your own project.

If the copyright is still in force what do you do?

• The best approach is to obtain the express permission from the owner/creator of copyrighted material.
• The copyright owner is the person entitled to reproduce the work or a substantial part thereof.  Short excerpts or clips of a work can be replicated so long as they are not substantial.  Keep in mind that “substantial” is assessed in terms of quantity and quality.  Even if you take a very small part of a work, if it is a very important part, then reproduction may still be infringement.  You should give attribution as to the source of the material you are taking.
• The Canadian Copyright Act provides an exception to infringement in cases of fair dealing for specific purposes (research, private study, education, parody, satire, criticism, review, news reporting). If your project falls into one of these categories, taking a portion of a copyrighted work MIGHT fall into the fair dealing exception.  But your use of the work must still be objectively “fair” in the particular circumstances.  Several factors weigh into the decision of whether something is fair dealing: purpose, character, amount, alternative sources, nature of the work, effect of your dealing on the copyright owner.  You should give attribution as to the source of the material you are taking.
• There is a lot of “grey area” here. Be on the safe side and get specific legal advice on what would be considered “fair” in your particular circumstances.

Questions?