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When can you “use without permission?”

If you’re an artist, do you ever wonder what is okay for you to ‘use’ in your own work and what is not? Do you know what constitutes “fair use”? For answers to these particular questions and many more besides, Queen City Gallery is hosting a seminar, “Used Without Permission: Copyright, Fair Use, and the Visual Arts,” on Tuesday, May 25 at 6pm in the Market Arcade Conference Room in downtown Buffalo.

Tickets cost $5 for “starving artists” and $10 for “ones that aren’t,” which means the smaller fee is suggested for entry, but the larger one is welcome from those who are willing and able to pay more. Steven Fox, a Buffalo-based lawyer who focuses on cases involving matters such as copyright, trademarks, and the First Amendment, will present a lecture followed by an open discussion and question-and-answer session.

Fox will likely address topics such as self-censorship of artwork, things artists may do that are likely to get them sued, and what artists should do if they think someone is misusing their art in violation of fair use. Fair use allows limited use of copyrighted material without getting permission from rights holders. However, it is not always simple.

What does, then, constitute fair use? According to Michael Mulley, the owner of Queen City Gallery in the Market Arcade space, availability of art in public spaces means that people will inherently distribute copies of said work. However, it also raises some important questions to which the average person may not always know the answers.

“I’m a photographer, and most of my friends are photographers,” Mulley said. “What is fair? Can I photograph you standing next to a famous painting?”

Mulley emphasized that use of the Internet has blurred many lines between what does and does not constitute fair use. Since people are easily able to upload pictures, it is equally easy for others to download those pictures and use them. He said that while people “are pretty liberal” today about doing this, there are exceptions, especially when professionals post their work online and may not want people “borrowing” it.

“Nowadays, people have no qualms about taking pictures on Facebook and using them,” Mulley said. “Professional photographers, with Facebook or MySpace, are at odds with the rest of the population using the site…there’s no difference between professional and amateur photographs, but obviously for someone who is trying to make a living, there is.”

Barack Obama "Hope" poster, original...

Image via Wikipedia

Mulley cited a prominent case involving copyright law and fair use: that of Los Angeles-based artist Shepard Fairey, who designed the now-famous “HOPE” posters of President Barack Obama. Fairey based his design on an Associated Press photo taken by freelance photographer Mannie Garcia. When the AP claimed that this use was copyright infringement, Fairey argued that it fell under the category of fair use.

According to Mulley, the main thing to consider when deciding whether to use someone else’s work is the number of people who are likely to see the resulting artwork. While Fairey’s instance did constitute fair use, Mulley said that there is a big difference between hanging one’s art “on a refrigerator door” and having that art go viral.

“Shepard Fairey wasn’t doing anything that thousands of other visual artists haven’t done,” Mulley said. “It’s up to how many people are seeing your image…he wasn’t operating any differently than most visual artists.”

In the end, Mulley stressed that an artist’s decision should involve balancing freedom of fair use and parody with the reality of taking someone’s copyrighted image, and knowing that someone could take offense to their doing so. He also offered his own perspective on the case involving Fairey and whether what he did was wrong.

“I don’t think he did any harm, but then again, it’s not my picture,” Mulley said. “If it is, it kind of changes your own opinion.”

Mulley said that this copyright seminar is important to the Buffalo community because it offers an opportunity for artists to learn from someone whose job it is to know copyright law. According to Mulley, this can and will help local artists become more aware of how what they do affects people, and teach them their rights at the same time.

“A lot of people don’t seem to know their rights…a seminar like this is going to open up the floodgates for people and they will go, ‘Hey, I didn’t realize this’ and have an ‘Aha!’ moment,” Mulley said. “I think that, when you know the rules and when you see examples – when you put in it perspective – it helps you in the long run and you protect yourself.”

For more information about this event, contact Michael Mulley at 716.856.2839 or via email.

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