Apparently, George Zimmerman is known for more than the shooting of Trayvon Martin; he is also a successful artist. His last painting sold on eBay for $100,000. Zimmerman’s new work, as shown above, depicts Florida State Attorney Angela Corey, who charged Zimmerman with the second-degree murder of Trayvon Martin. The AP says that Zimmerman used their photo, shown below, as the basis for his painting. George Zimmerman probably has a good “fair use” defense, but that doesn’t mean he has an easy road ahead. Here’s why.
First, fair use is a defense, which only comes into play after a lawsuit is initiated. Despite how much someone believes his or her use of another’s copyrighted work is fair, there is no definitive rule on what constitutes fair use. We can only use rule as per the Copyright Act as a guide. Generally, using another’s creative work can be considered fair use if changes are made to the work that are considered transformative. What you are probably thinking is “how do I know if my work is transformative? You are not alone. Millions of dollars are spent every year fighting over that question.
Courts use a four-factor balancing test to determine whether a work constitutes fair use but let’s leave that test to the lawyers. What we need is a simple, practical definition that is easy to use. The Center for Social Media at American University have looked at the trends in court cases and collapsed the 4 factors down to two simple questions:
(1) Does the new work add value to and repurpose the work for a new audience?
(2) Is the amount of material that was used, appropriate to achieve the transformation?
Using no more of someone else’s work than necessary is an important consideration in surviving the fair use analysis.
So let’s look at Zimmerman’s work. He clearly used the AP photo to create his work. And just because it is painted, that doesn’t make it transformative. However, the photo was taken at a press conference for the Trayvon Martin case, and Zimmerman’s has turned the original photos intent on its head but reframing its meaning. Is this enough to be considered transformative? Also, while Zimmerman used the entire photo to create his new work, could his message been achieve with less of the photo? Therein lies the problem for Zimmerman.
Using another’s creative work can be considered fair use if changes are made to the work that are considered transformative.
Even if Zimmerman believes he has a strong case for fair use, he still has to prove it. The AP has greater resources than Zimmerman. They can push this case along if they feel that his case is weak. That could cost Zimmerman a lot in legal fees. At this point, he could remove the painting from sale which might make the AP back off. Right now, we will just have to wait and see if the AP initiates a suit.
The important message for anyone using other people’s work is that fair use cannot stop someone from suing you. From a practical point of view, the more exposure your fair use works gets (and the more money the work is worth), the more likely it is that a copyright holder will sue. So, if you are an artist who uses someone else’s work for your new pillow collection at Target, a cease-and-desist later may be in your future.
- AP demands George Zimmerman stop sales of local State Attorney Angela Corey painting (jacksonville.com)
- AP says Zimmerman painting is copy of AP photo (sacbee.com)
- AP, Photographer to George Zimmerman: “Copyright Violation” on Latest Painting (arts.firedoglake.com)