Copyright in Visual Arts: Legal Precedent in Visual Art Copyright

Microphotography expert Andrew Paul Leonard’s photographs of bone marrow stem cells were stolen and used on the Stemtech website and other marketing materials.

Patrick Cariou published a little-known book of the Rastafarians in Jamaica in 2000. Eight years later, appropriation artist Richard Prince reprinted some of these images and added his own “jarring” artistic flourishes. The art was displayed and sold through the Gagosian Gallery in New York. In 2009, Cariou sued for copyright infringement.

Adult magazine Perfect 10 sued Google for secondary copyright infringement because Google was indexing thumbnails of Perfect 10’s content from 3rd party sites that had stolen the images.

Once a plaintiff shows ownership in a protectible trademark, he must next show that the defendant's use of the mark creates a likelihood of confusion. This is synonymous with a probability of confusion. When assessing the likelihood of confusion, the U.S. Court of Appeals for the Fifth Circuit considers a nonexhaustive list of so-called "digits of confusion," including: (1) the type of mark allegedly infringed, (2) the similarity between the two marks, (3) the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant's intent, and (7) any evidence of actual confusion. Courts also consider (8) the degree of care exercised by potential purchasers.

Whether the unauthorized copying of artwork for use in a fictional biography of the original artist constitutes a fair use.

Whether it was fair use for defendants to reproduce Grateful Dead concert posters and tickets for publication in a book on the band’s history without permission from the copyright owner of the artwork that appears on the posters and tickets.

Whether the unauthorized use of copyrighted characters in advertising flyers for a store that sold books, movie memorabilia, and comics, including comics about those characters, constituted fair use.

Whether the U.S. Postal Service’s unauthorized use of an image of plaintiff’s sculpture on a stamp was fair use.

Whether defendants’ unauthorized use of a photo of plaintiff’s sculpture in an advertisement was fair use.

Whether defendant’s copying of plaintiff’s photograph for the purpose of making sculptures intended as social commentary on the photograph’s image was a fair use.

Respondents are engaged in the manufacture and sale of electric lamps. One of the respondents created original works of sculpture, from the models of which china statuettes were made. The statuettes were used as bases for fully equipped electric lamps, which respondents sold. Respondents submitted the statuettes, without any lamp components added, for registration under the copyright law as "works of art" or reproductions thereof.