What is needed to credit copyright holder properly?
The Copyright Act, believe it or not, has no rules requiring you to give copyright holders or an artist credit when you use their work when making “fair use” of it. In the test to determine whether someone’s use of another’s work is fair use, judges don’t even have to ask whether or not an original author was credited in the new work into account.
The requirement to give an artist credit is called a “moral right.” Although many countries outside the U.S. are concerned with giving artists moral rights (a right to control certain aspects of their work and be credited for or refuse credit to their work), the United States Copyright Act doesn’t mandate moral rights.
Interestingly enough, there’s one circumstance when the US Copyright act does require you to give an author credit: limited run works of visual art.
“[The] Visual Artists Rights Act (VARA) and various state laws… [define a work] as ‘a painting, drawing, print, or sculpture,’ or a ‘still photographic image produced for exhibition purposes only’ – all either existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. 17 U.S.C. § 101.” [Owen, Wickersham & Erickson, PC]
It’s worth noting that state laws sometimes protect crediting artists more strongly. For example, “California law protects a slightly different set of works: ‘an original painting, sculpture, or drawing, or an original work of art in glass of recognized quality.’ Cal. Civ. Code § 987. Commercial works, such as advertisements, books, magazines, electronic publications, posters and other unlimited reproductions of fine art, and works made for hire, are not covered.” [Owen, Wickersham & Erickson, PC]
Even though you are generally not required by law to credit artists that you sample in your own work, we at New Media Rights believe that when you’re attempting to use an existing work as a fair use, that crediting the original authors is the best practice. Not only is this an ethical way of acknowledging all of the talent and creative labor that went into making your work, but it’s also a good way to keep yourself out of trouble.
(1) Courts may consider whether or not a subsequent artist credited the original author’s work in their determination of fair use, even though it’s not an express requirement. Good faith use is a consideration when determining damages and an unstated X-factor when determining actual liability.
(2) In many instances, withholding credit from original authors or taking credit for their work may anger the original author enough so that she sues you, even if your work is clearly fair use.
If you have questions about the benefits of crediting the work of those your borrow from in your own work, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
