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What’s fair use?

Generally speaking, fair use is as it sounds: it designates that your art fairly uses different elements created by others. It’s a type of legal defense that may be used in some countries in response to infringement allegations. If your artwork uses elements of someone else’s protected content, and it’s determined to be fair use, your artwork would not infringe. But the only way to find out for sure if your artwork qualifies as fair use would be to go to a court of law.

Remember, not every country recognizes fair use and in the countries that do recognize it, the interpretation may vary. For example, there is no general "fair use" defense in Australia, whether in relation to copyright or trademark use (although there may be limited defenses or exceptions on which you could rely, depending on all the circumstances).

Copyright and fair use

If a judge or jury were to consider whether your work is fair use in the copyright context, a number of factors may be considered, like:

  • What is your work’s purpose?  

If you sell your artwork mainly for commercial gain rather than another purpose, like commentary or criticism, this is a factor that could weigh against your artwork being considered fair use.

  • Would sales of your artwork deprive the original rights holder of income?

Perhaps the t-shirts you sell on Redbubble look a lot like official merchandise sold through the rights holder’s website. It could be seen that your t-shirts could compete with theirs, and this is a factor that could weigh against your artwork being considered fair use.    

 

All of the original content has been used in the new artwork.

  • How much of the original content is used in your artwork? 

Let’s say you took a screenshot of a video game character and sold it on a smartphone case, and it’s not different at all from the original video game character. Even if you change the character’s appearance when you use it in your own artwork, your rendition may still look similar enough to the original that your artwork could be considered infringing.

Fair uses of trademarks

If a judge or jury were to consider whether your work is fair use in the trademark context, they would consider whether your work is a:

  • Descriptive fair use

Some trademarks have a descriptive meaning as well as their secondary meaning as a trademarked word, for example, the word “apple.” Even though “apple” is a registered trademark, the descriptive meaning, of course, refers to the fruit.  

  • Nominative fair use

This is when someone uses a trademark to actually refer to the trademark owner or to identify a product or service of the trademark owner. For example, if you want to sell a t-shirt that says “I DON’T LIKE Watchimadoodad Company.” You can probably use the trademark Watchimadoodad in your artwork if you’re actually using the word Watchimadoodad to refer to the Watchimadoodad brand.

For both descriptive and nominative fair uses, your artwork shouldn’t create confusion in the marketplace. In other words, ask yourself whether a consumer would think your artwork is sold or endorsed by the owner of that trademark.

Fair use is a really muddy topic and one person’s fair use can be another person’s unfair use. If you think your artwork is fair use or if you’re just generally unsure if it infringes on another person’s rights, it’s best to consult an attorney for advice.

But keep in mind that the only place fair use is truly decided is in a court of law.


Obligatory Yet Very Important Legal Disclaimer:

Don’t be fooled by any complicated jargon (and how snazzy we look in pinstripe). We are not your lawyer and this is not legal advice. We recommend contacting an attorney if you need an actual legal consultation.

Rather, this is general information aimed at giving you the legal lay of the land. While we can’t defend you in court, we know that art and IP ownership can be murky territory; the least we can do is arm you with the right kind of knowledge to get you started.

 

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